01/02/2022
Welcome to the first LA View of 2022. The pandemic is still very much with us but thoughts are turning to the Covid-19 inquiry. In this edition we consider what the inquiry means for local authorities.
LA Spotlight
The Covid-19 inquiry is coming – what does this mean for local authorities?
We do not yet know the detail of the terms of reference for the Public Inquiry into the Covid-19 pandemic and its handling, but it seems likely there will be a number of areas where local authorities either collectively or individually will have a role to play. At a sector level we would anticipate that there may be scope for the LGA and its equivalents in Scotland and Northern Ireland to have a role as a core participant, and this may involve co-ordinating evidence and responses on a range of issues. Some local authorities may wish to submit evidence directly, or indeed be asked to supply such evidence.
What do we see as the likely areas of local government involvement at this stage?
There may well be some specific local issues which the Inquiry wants to look at, but at a more general level there are a number of issues that it is likely to be investigating where local government will need to be heard:
- Test and trace. The government very deliberately went down the route of establishing a separate new national scheme for this process, which certainly initially raised questions of whether it was by-passing local public expertise and staff who could have played a more useful role. Would that have been more effective? Could it have coped with the scale of the issues, or at least some of them?
- Wider public health roles in relation to management of the pandemic, in particular the relationship between central government, the NHS and local government. This could include management of the tiering system, arrangements for the vaccination programme, and implementation and enforcement of Covid-19 restrictions.
- Delays in the distribution of PPE to those working in social care and with vulnerable people, including social workers and care home staff. What were the implications of the delays and how could they have been avoided?
- The impact of Covid-19 on social care provision, including management of hospital discharges, maintaining provision for service users and whether the relaxation of powers and duties was useful or effective.
- Local authority grant management both in connection with the support arrangements for social care providers and also more widely for the local economy. Were local authorities too bureaucratic, or too slow to distribute money? If true, how far was this a local government responsibility or due to other factors?
- More widely again how far were local authorities able to maintain services to their residents, and how could this have been improved?
There may well be other issues that arise.
What should local authorities be doing now?
Perhaps the first question is to ask is, to what extent does any particular authority want to be involved? Whilst it is anticipated the Inquiry will have powers to require the production of evidence, it will no doubt want to manage this, and there may be an option for local authorities to choose whether to volunteer information or views or not. However as public bodies it is likely that the sector will be looked at in some detail, and either collectively or individually we would expect Councils to want to make sure their side of the story is heard as part of the process.
If you are intending to submit evidence on a topic it is important to ensure that the contemporaneous documents are preserved and accessible and to start thinking about who can give the evidence or witness statement.
If you would like to discuss this topic in more detail, please contact Olivia Carter, Partner, or David Owens, Partner.
Net Zero
New UK regulations requirement new homes and buildings to install electric vehicle charging points set to be introduced
On 22 November 2021, the Government announced that new building regulations would be introduced in England requiring new homes and buildings (such as supermarkets and workplaces), as well as those undergoing major renovation, to install electric vehicle charge points.
The Department for Transport’s Consultation Response: EV Charge points in Residential and Non-residential Building (the Consultation Response) sets out that the regulations will require that:
- Every new home with on-site parking is to have an electric vehicle charge point;
- Residential buildings undergoing major renovation, which will have more than 10 parking spaces after the renovation is complete, are to have at least one electric vehicle charge point for each dwelling with associated parking and cable routes in all spaces without charge points;
- All new non-residential buildings with more than 10 parking spaces are to have a minimum of one charge point and cable routes for one in five of the total number of spaces; and
- All non-residential buildings undergoing a major renovation which will have more than 10 parking spaces after the renovation is complete are to have a minimum of one charge point and cable routes for one in five spaces.
The regulations are due to be implemented next year and it is anticipated that 145,000 charge points across England will be installed every year as a result of the introduction of these new regulations.
The announcement is positive news and a step towards decarbonising England’s transport system and reaching the UK’s target of bringing all greenhouse gas emissions to net zero by 2050. This is likely to present valuable opportunities for suppliers of electric vehicle charge points but the implications for developers is also likely to be significant.
We have also previously covered some of the public procurement points to note for the installation of the significant electric vehicle charging infrastructure needed to support the “Green Industrial Revolution”. The Consultation Response indicates some of the ways in which residential house builders are going to be brought into the drive to install charging capacity and there are likely to be further developments in this fast moving sector in the months to come.
If you would like advice on EV projects across the UK please get in touch with any member of our dedicated team of Energy specialists, including Nathan Bradberry.
Legislation
The Norfolk Boreas Offshore Wind Farm Order 2021
This Order grants development consent for, and authorises Norfolk Boreas Limited to construct, operate and maintain a generating station located in the North Sea approximately 47km from the Norfolk coast, together with associated development. For the purposes of the development that it authorises Norfolk Boreas Limited is authorised by the Order compulsorily or by agreement to purchase land (including rights in land) and the right to use land, as well as to override easements and other rights. This order comes into force on 1 January 2022.
The Electric Vehicles (Smart Charge Points) Regulations 2021
These Regulations are made using powers in the Automated and Electric Vehicles Act 2018 (c. 18). They prohibit certain types of electric vehicle charge point from being sold or offered for sale unless certain requirements set out in the Regulations are complied with. These Regulations come into force on 30 June 2022.
Publications & Guidance
Climate Change Agreements (CCAs): proposals for a future scheme
Department for Business, Energy & Industrial Strategy | 17 December 2021
Views are sought on potential reforms proposed for a future Climate Change Agreement scheme to follow from the end of the current scheme. The current CCA scheme started in 2013. Its energy and carbon reduction targets run to the end of 2022, and provide eligible participants with access to reduced rates of Climate Change Levy until March 2025.
Key areas in which we are seeking views include:
- scheme length
- eligibility
- increasing uptake of energy efficiency technologies and transparency of action taken
Respond online. This consultation closes at 11:45pm on 11 March 2022.
New homes to produce nearly a third less carbon
Department for Levelling Up, Housing and Communities | 15 December 2021
New homes and buildings in England will have to produce significantly less CO2 under new rules announced by the government to help the country move towards net zero. Under the new regulations, CO2 emissions from new build homes must be around 30% lower than current standards and emissions from other new buildings, including offices and shops, must be reduced by 27%. Heating and powering buildings currently makes up 40% of the UK’s total energy use. The changes announced to the government’s Building Regulations, follow a public consultation and will come into effect from June 2022. Alongside amendments to the Building Regulations, 5 new Approved Documents have been published:
- Approved Document L, volume 1: dwellings
- Approved Document L, volume 2: buildings other than dwellings
- Approved Document F, volume 1: dwellings
- Approved Document F, volume 2: buildings other than dwellings
- and an entirely new Approved Document O covering overheating
There will be a 6 month period before the new regulations come into force on 15 June 2022. Transitional arrangements are in place which mean that if a building notice, initial notice, or full plans for building work are submitted to a local authority before 15 June 2022, then provided the building work commences by 15 June 2023, work on that individual building is permitted to continue under the previous standards.
Infrastructure for charging electric vehicles: Approved Document S
Department for Levelling Up, Housing and Communities | 15 December 2021
This Approved Document provides technical guidance regarding the installation and charge point requirements in Part S to the Building Regulations. Approved Document S applies to new residential and non-residential buildings; buildings undergoing a material change of use to dwellings; residential and non-residential buildings undergoing major renovation; and mixed-use buildings that are either new, or undergoing major renovation.
Department for Transport | 15 December 2021
Changes to the plug-in grant scheme to enable funding to go further and to help more people make the switch to an electric vehicle. The grant scheme for zero-emission vehicles has been updated to target less expensive models, allowing the scheme’s funding to go further and to help more people make the switch to an electric vehicle.
Community benefits and engagement guidance for onshore wind
Department for Business, Energy & Industrial Strategy | 13 December 2021
Guidance on community benefits and engagement for onshore wind farm developers, communities living in the locality of a wind farm and local authorities. Guidance updated to reflect:
- the range of approaches that onshore wind developers and communities are taking to engage with each other;
- the range of benefits available to communities who host onshore wind developments.
The updated guidance does not alter the current planning regime or the principle of community backing that applies to onshore wind developments in England.
UK Green Building Council | 13 December 2021
The UKGBC, together with the World Green Building Council, several European Green Building Councils, Climate Alliance and the Buildings Performance Institute Europe, has published a framework to support cities and local authorities to measure the impacts and wider benefits of building retrofit. The built environment is directly responsible for 25% of the UK’s total greenhouse gas emissions. Renovating the UK’s 30 million existing buildings is therefore a key challenge in achieving our ambition to reach net zero carbon by 2050, and will require retrofitting 1.8 homes per minute over the next 25 years. The Build Upon Framework defines a suite of Environmental, Social and Economic indicators that can be measured in a simple, standardised way at either a city or project level. From energy consumption to the indoor health of occupants, the 13 indicators can be applied flexibly across a project or city and provide clear guidance on what issues local authorities can and should measure. It has been developed by a coalition of sustainability organisations and in collaboration with over 30 cities and local authorities across Europe, including Leeds, Cambridge, Hammersmith & Fulham and Essex County Council.
Public sector decarbonisation: guidance developed through the Modern Energy Partners programme
Department for Business, Energy & Industrial Strategy | 9 December 2021
The guidance, which includes tools and templates produced by the Modern Energy Partners programme, is to assist public sector organisations in the decarbonisation process.
Report: Green Homes Grant Voucher Scheme
Public Accounts Committee | 1 December 2021
The report found that the Green Homes Grant Voucher Scheme (the Scheme) underperformed badly, upgrading around 47,500 homes compared to the 600,000 originally envisaged, delivering a small fraction of the expected jobs and accounting for just £314m out of the original £1.5bn budget. Administration costs are likely to amount to more than £1,000 per home upgraded, totalling just over £50m in all.
News
Council gives green light to solar farm
LocalGov | 22 December 2021
South Oxfordshire District Council has given the green light to plans for a new solar farm despite objections that it would disrupt public rights of way. The council’s planning committee gave the go ahead to the 78-hectare solar farm on land at Harlesford Farm, near Tetsworth. It is anticipated that the solar photovoltaic farm will generate 49.99 megawatts, enough to power approximately 15,000 homes. However, the planning permission was issued against the objections of the local branch of the countryside charity CPRE.
County council goes vegan to tackle climate change
LocalGov | 20 December 2021
Oxfordshire County Council’s members have agreed to a motion that will see vegan meals served at formal events. The move is part of the local authority’s efforts to reduce its carbon footprint and reach net zero.
Government criticised for plug-in grant cut
LocalGov | 20 December 2021
The Government is facing criticism for its decision to cut the plug-in car and van grant by up to £1,000 and change the eligibility criteria. The grant for electric cars is set to go from £2,500 to £1,500. The upper price limit for eligible car models will fall from £35,000 to £32,000.The grants for large and small vans are also being reduced. These will go from £6,000 to £5,000 and £3,000 to £2,500 respectively. Transport minister Trudy Harrison said the Department for Transport wanted to focus the grants on more affordable vehicles.
Preston's City's carbon neutral aim poses 'financial challenge'
BBC News | 17 December 2021
A city council's aim to become carbon neutral by 2030 poses a financial challenge, a report has found.
A cross-party task group has spent almost two years exploring what Preston City Council needs to do to fulfil the pledge made in April 2019.The report said decisions would have to be taken ensure "the greatest carbon reduction can be achieved at the earliest opportunity". But its fleet of 124 vehicles will remain diesel-driven. Councillors voted for the authority to invest a further £4.8m over the next five years in replacing the vehicles, but an accompanying report said it was not currently possible to purchase "alternative fuelled" vehicles, because of the lack of the necessary infrastructure to operate them.
Heat pumps are suitable for all types of housing, government-backed study concludes
Business Green | 16 December 2021
The Electrification of Heat demonstration project, which has been funded by the Department for Business, Energy and Industrial Strategy (BEIS), saw 750 heat pumps installed across a broad spectrum of housing types across the South East Scotland, Newcastle, and South East England. The first report out of the trial, published on Thursday, concludes that heat pumps can be successfully installed in homes from every style and era, from Victorian mid-terraces to 1960s blocks of flats. "The project has not identified any particular type or age of property that cannot have a successful heat pump installation," it notes. "The suggestion that there are particular home archetypes in Britain that are unsuitable for heat pumps is not supported by project experience and data."
Veolia says less than a third of UK businesses preparing for net zero
MRW | 16 December 2021
Research commissioned by Veolia has revealed that only 29% of UK businesses have prepared a strategy to meet net-zero goals. In addition, 42% of firms said they were “feeling overwhelmed” by the actions needed to reduce their carbon impact. The Government wants all industry sectors to decarbonise to meet a net-zero target by 2050.
Developing an agile solution to local net zero energy planning
Regen | 15 December 2021
Regen explores the need for more agile local energy planning and better communication between local authorities and energy networks.
Report calls for a new net zero delivery authority
LocalGov | 10 December 2021
The creation of a new net zero delivery authority would provide a more coordinated approach to meeting climate change targets, a new report has argued. Published by Policy Connect, the report said the new authority would provide delivery leadership in England to make net zero happen, and ensure delivery on key strategies. The report also calls for local government and its partners to be empowered to plan the net zero transition and resourced to make it happen, street by street. Wera Hobhouse MP, report co-chair, said: 'A coordinated response involving local people is vital for the UK to reach net zero.
92 per cent of vehicles comply with expanded ULEZ one month on
Mayor of London and London Assembly | 10 December 2021
The Mayor of London, Sadiq Khan, has released a new report evaluating the first month’s impact of his expanded Ultra-Low Emission Zone (ULEZ) which found that 92 per cent of vehicles driving into the zone are now compliant with the new standards.
Combined authority launches £18m fund to boost green investment
LocalGov | 1 December 2021
The North of Tyne Combined Authority has joined with an infrastructure investment group to launch an £18m Green New Deal Fund (GNDF) as part of the authority’s effort to achieve net zero. The fund, which has been launched in partnership with Amber Infrastructure Group, will catalyse investment in low carbon technologies and support the development of green jobs and skills across both the private and public sectors.
Delivering Value
The Cabinet Office published its response to the consultation on proposals for reform to UK public procurement law contained in the Green Paper “Transforming Public Procurement” on 6 December 2021.
The Cabinet Office’s response to the consultation paves the way for the Procurement Bill which will set out a new framework for the regulation of public procurement and replace the Public Contracts Regulations 2015, the Concessions Contracts Regulations 2016, the Utilities Contracts Regulations 2016 and the Defence and Security Public Contracts Regulations 2011. It is envisaged that the Procurement Bill will become law in 2023, with a 6-month implementation period to follow. Cabinet Office has confirmed that training will be provided across all sectors as the legislation is rolled out.
Having taken on board the range of views from the consultation, the response confirms the Government’s intended approach on a number of issues, and therefore provides a clear direction of travel for the new legislation. Key themes include:
- Simplification of the current legislation into a single, uniform regulatory framework, albeit retaining flexibilities for utilities and ensuring security concerns are addressed for defence contracts.
- Retention of the light touch regime, based on concerns raised about removing it.
- Strengthening of the approach to exclusion of suppliers for misconduct, and recognition of a clearer framework for exclusion.
- Detailed guidance to be published on how contracting authorities will implement transparency requirements.
- The proposal to cap damages in procurement challenges has not been taken forward.
The consultation ran from 15 December 2020 to 10 March 2021 and received 619 responses split fairly evenly between contracting authorities and suppliers.
The procurement law team at Bevan Brittan will be delivering a series of training, most likely through a mix of articles and webinars, taking you through what the reforms will mean for you. This will be practical guidance enabling our clients to be “Reform Ready”. Further details on this will be sent out early in 2022, but in the meantime, if you would like to express your interest please email events@bevanbrittan.com.
If you would like to discuss this topic in more detail, please contact: Emily Heard, Laura Brealey, Fran Mussellwhite, or Matthew Mo.
Publications & Guidance
LGA response to "People at the heart of care: adult social care reform white paper"
Local Government Association | 30 December 2021
This briefing sets out the LGA's response to different parts of the Government's adult social care white paper chapter by chapter. While we fully support and endorse the positive framing of social care in the white paper, we question whether the funding set out matches the Government’s level of ambition.
LGA Response: Health and Care Bill, Second Reading, House of Lords, 7 December 2021
Local Government Association | 2 December 2021
The LGA broadly supports the Bill’s focus on improving the health and wellbeing of the population through greater integration between NHS organisations and between the NHS and local government. We also support the duty on the integrated care board (ICB) and all local authorities within the integrated care system (ICS) to have regard to the integrated care strategy in making decisions.
Treasury Committee publishes Government response on social care changes
News
Leicester aims for workplace parking levy by 2023
LocalGov | 7 January 2022
Leicester City Council has announced plans to introduce a workplace parking levy based on the Nottingham model. Under the scheme, which would start in 2023, most employers with more than 10 spaces would pay £550 per space per year. The cost could be passed on to employees.The operating area would be the city council’s administrative boundary. Between 450 and 600 businesses across the city are likely to have to pay the levy, while around nine out of 10 companies in the area would be too small. The income is expected to be around £95m over the first 10 years.
Management team split for Hampshire councils
LocalGov | 6 January 2022
East Hampshire DC and Havant BC will establish their own management teams after a 12-year partnership, the councils have announced. The councils said the split would allow the two authorities to ‘focus on their different strategic priorities and deliver outcomes for their communities more quickly’.
Borough to end services joint venture
Public Finance | 4 January 2022
Great Yarmouth Borough Council is to set up a new subsidiary company to manage services, after it decided against extending a joint venture. In 2003, the authority set up Great Yarmouth Borough Services in collaboration with Norse Commercial Services, a subsidiary of Norfolk County Council, to provide services including facilities management, property services and care homes. However, Great Yarmouth confirmed last month that it will not renew the joint venture agreement when it expires in March 2023, and will set up its own company to provide services.
Local Government Lawyer | 30 December 2021
CoramBAAF, the independent membership organisation for professionals, foster carers and adopters, has called on all local authorities to check that their procedures comply with the detail of the Adoption Agencies Regulations (AAR) 2005 to avoid potential similar difficulties to those faced by Somerset County Council and highlighted by a recent High Court judgment.
In Somerset County Council v NHS Somerset Clinical Commissioning Group & Anor [2021] EWHC 3004 (Fam) Mrs Justice Roberts considered the lawfulness of placement orders made in ten separate cases.
Social care white paper fails to tackle ‘central issue of funding’
LocalGov | 22 December 2021
Local authority leaders have called on the Government to ensure more of the new health and care levy is directed towards the social care system. In their response to the Government’s adult social care white paper, the Local Government Association (LGA) warns that the ‘central issue of funding’ has not been tackled. In the October Spending Review, the Government announced grant funding of £1.6bn per year for councils over the next three years. The LGA estimates that the Spending Review funding will enable councils to meet pressures this year. However, they warn that local authorities face future demographic and inflationary base annual pressures of £1.1bn and so will struggle to meet demand in full in 2023/24 and 2024/25.
Council to bring waste and recycling centres in-house
LocalGov | 16 December 2021
Kirklees Council will bring Household Waste and Recycling Centres in-house as part of an effort to give the council more control over public-facing services. The local authority’s cabinet met yesterday to decide on new proposals that will see a transformation in how waste is collected, recycled and disposed of in Kirklees. The council is in year 24 of a 25-year waste PFI contract with the waste management company Suez. However, the contract was recently extended and will now end in 2025.The council now intends to deliver the Household Waste Recycling Centres in-house, so that they can recycle more materials at them.
Barnet to bring five more services in-house
Public Finance | 14 December 2021
The London Borough of Barnet is set to insource five more services over the next year from its outsourcing contractor Capita. The council’s policy and resources committee approved proposals on Thursday to bring highways, regeneration, procurement and regulatory services back in-house during 2023, with the recruitment element of HR and payroll to return in February 2022. In 2013, the council outsourced a raft of services to Capita, in a bid to deliver up to £130m of savings, and currently 14 services are managed by the outsourcing firm. A report outlining the proposed return of the five services to council control said: “The financial impact of returning them to the council would be affordable and, overall, will not result in additional costs to the council in delivering those services.”
NALC opposes government burial proposals
National Association of Local Councils | 13 December 2021
The National Association of Local Councils has opposed some of the government's proposals on burials in its consultation. The two main changes proposed are to increase the minimum grave size to 5 metres squared and retain a 1-metre minimum clearance between the base of a grave and the water table in a cemetery. NALC opposed these proposals, which would roughly halve the cemetery space available to many local (parish and town) councils, lead to premature closure of many graveyards, and cause problems with residents who pre-purchased family plots. The Department for the Environment, Food and Rural Affairs consulted earlier this year on changes to the Environmental Permitting Regulations (England and Wales) 2016. And comment in LocalGov.
Support package to protect care sector this winter
Department of Health and Social Care | 10 December 2021
Additional support is being offered to the social care sector as part of a package of new measures to protect people from the spread of the Omicron variant including £300m to help recruit and reward the workforce.
Council to in-source housing services
LocalGov | 9 December 2021
Haringey Council has announced it is in-sourcing housing services after a consultation saw residents back the change. Homes for Haringey is currently responsible for the day-to-day management of more than 20,000 council-owned homes in the borough, including housing repairs, leaseholder services and housing management. The cabinet approved the decision to in-source Homes for Haringey on Tuesday after a survey of 1,680 residents and a number of focus groups found that 81% agreed or strongly agreed with the proposal.
Council halts commercial investment due to code changes
Public Finance | 9 December 2021
A district council in Somerset, which has spent more than £40m in commercial property outside of its boundaries, has abandoned further investment plans, amid proposed borrowing restrictions in the Prudential Code. Mendip District Council has nine investment properties totalling £45m, seven of which are outside of Somerset, and originally planned to increase its authorised borrowing limit by £5m to £165m this year, to help fund additional purchases. However, changes to the Prudential Code restricting borrowing primarily for financial return has led to the authority reviewing its debt limits, a treasury management report discussed at a cabinet meeting on Monday said. The report said: “As it is now no longer possible for Mendip to further purchase commercial investment property, the extension to the authorised limit and operational boundary is not needed.”
Council sets up ‘arms-length’ business to deliver key services
LocalGov | 3 December 2021
East Suffolk Council is to create a Local Authority Trading Company (LATCo) to help it deliver key council services. The LATCo will operate as an ‘arms-length’ commercial business and will be responsible for crucial services such as waste and recycling collection, grounds maintenance and street cleansing. This means that East Suffolk Council will exercise its right not to renew the contract it holds with Norse for the provision of operational services, and therefore this contract will come to a natural end in July 2023.
Cornwall plans to cut 400 jobs
LocalGov | 3 December 2021
Cornwall Council has proposed to axe more than 400 jobs in the coming months in a bid to save £18m.
The cuts are part of plans to save £55m in order to balance the council’s budget in 2022-23. Proposals to go before senior councillors next week include scrapping 200 vacant posts and 210 staff through voluntary or compulsory redundancy by March. It is estimated the move will reduce the total pay bill by £18m.
Liverpool Council refinances £65m LOBO loan
LocalGov | 2 December 2021
Liverpool City Council has completed a debt refinancing deal in a move that will save £15.8m. The council has replaced its previous LOBO arrangement with a new funding package from the Public Works Loan Board. Its previous loan had an interest rate of 4.4% over 44 years, while the new package has an average rate of 1.73% over 18 years.
Social care White Paper ‘set up to fail’
LocalGov | 1 December 2021
The local government sector has praised the ambition of the long-awaited adult social care reform White Paper, but warned it will not succeed without funding to meet current demand. Today’s White Paper details how the previously-announced £1.7bn for improvements to the care system will be allocated over the next three years.
Councils set to trial digital technology to support social care
LocalGov | 1 December 2021
Buckinghamshire Council and Suffolk County Council are both going to take part in trials looking at how digital technology can be used to support adult social care. The two local authorities will take part in a £22.9m SMART Places Live Labs Programme, run by ADEPT (Association of Directors of Environment, Economy, Places and Transport), which will explore the wider application for using sensors in local communities.
Place & Growth
National Security and Investment Regime comes into force
Earlier this month, the National Security and Investment Act 2021 went live which bought into force a more extensive national security regime in the UK.
Pure land deals do not fall within the mandatory regime but this does not mean that real estate transactions will be clear of all implications. There is a voluntary regime where parties can submit transactions for approval by the Secretary of State if the transaction concerns, or is proximate to, a “sensitive site”. Examples of sensitive sites include critical national infrastructure sites or government buildings but the intended use of the land can also be taken into account.
The Government will also have the power to retrospectively review relevant deals that have been entered into or have been completed on or after 12 November 2020. This power lasts for five years which is shortened to six months once the Secretary of State is aware of the trigger for the transaction. Although relevant pure land deals fall under the voluntary regime, parties who choose not to seek approval run the risk of a subsequent call-in for review if there is reasonable suspicion that there is or could be a risk to national security.
Parties and their advisors will need to take into account some crucial unconfirmed points in relation to the workings of the new regime. There is no definition of what is “proximate” to a sensitive site and there is no central record of sensitive sites and so due diligence may need to extend to neighbouring land with judgment then required as to what may be deemed a sensitive site.
Whilst the focus and intention of the new regime is not to put unnecessary obstacles in the way of routine property transactions, potential buyers will need to be aware that within key sectors, there may be implications on the periphery of the acquisition.
For further help and advice, please contact: Daniel Purcell
Legislation
The Non-Domestic Rating (Discretionary Relief) (Amendment) (England) Regulations 2021
This instrument is being made to ensure that local authorities can award discretionary business rates relief and then, if necessary, amend the relief in order to comply with any international agreement to the extent it is given effect in the law of England and Wales. Coming into force on 19 November 2021.
Publications & Guidance
Reimagining where we live: cultural placemaking and the levelling up agenda
Digital, Culture, media and Sports Committee | 7 January 2022
The role that culture might play in delivering a Government commitment to level up the country is the focus of a new inquiry launched today, Reimagining where we live: cultural placemaking and the levelling up agenda. The DCMS Committee’s inquiry will consider funding for cultural initiatives and how well the current model ensures that distribution goes to areas that might be missing out. MPs will also explore how harnessing local creative talent and businesses could help bring back footfall to high streets and town centres, enlivening commercial buildings and protecting them against closure. You can submit evidence until Friday 18 February 2022.
First Homes: Model Section 106 Agreement (for developer contributions)
Department for Levelling Up, Housing and Communities | 23 December 2021
Model s106 agreements for use with First Homes delivered through developer contributions. These model clauses are for use by local authorities and home builders in preparing s106 agreements that deliver First Homes through developer contributions, including First Homes exception sites. Please note that these model clauses are not for use with any of the government’s grant-funded pilot programmes delivered through Homes England. If you are delivering First Homes as part of one of these pilot programmes, you should use the documents provided by Homes England for this purpose.
High Streets: The Government must learn lessons from Covid to build back better
Levelling Up, Housing and Communities Committee | 10 December 2021
The Government should immediately conduct a full “lessons learned” review on the impact on high streets of central and local government handling of the Covid-19 pandemic, says the cross-party LUHC in their report. The Committee’s report includes recommendations which:
- Call for the full “lessons learned” review on the high streets to be conducted immediately, ahead of the main independent Covid-19 inquiry
- Support the principle of an online sales tax
- Call for the Government to move away from competitive bidding processes for town regeneration schemes and shift to greater local devolution of funding.
Consultation on the introduction of tenant satisfaction measures
Regulator of Social Housing | 9 December 2021
In November 2020, the Government published its Social Housing White Paper, setting out plans for a new consumer regulation regime. One element was the requirement that the Regulator of Social Housing develop clear and comparable tenant satisfaction measures. These measures should apply to all social landlords and cover the areas that matter to their tenants. The White Paper recommends that TSMs should give tenants meaningful information about their landlord and help the regulator ensure that landlords meet the new consumer standards. We need legislation to introduce the new consumer regulation regime, but in advance of that we think it’s right to consult on our TSM proposals because of the significant lead time for their implementation. Consultation ends: 3 March 2022. Where possible, please respond to the questions in this consultation online.
The future of strategic planning in England
County Councils Network | 8 December 2021
The government should rapidly implement a new strategic planning model as part of forthcoming reforms to the system to closer align housebuilding and infrastructure in county areas, a new report suggests. The study from CCN and Catriona Riddell Associates puts forward new arrangements to help ensure that local infrastructure is not overburdened by new housing development and could assist with the government’s levelling up agenda.
Lords Committee calls for empowered leaders and improved finances to regenerate our towns and cities
House of Lords COVID-19 Committee | 7 December 2021
The House of Lords COVID-19 Committee today calls for a new relationship between central government and local government to empower local authority leaders to reimagine and regenerate their towns and cities, in light of the COVID-19 pandemic. The Committee’s report Towns and Cities: Local Power is the Path to Recovery sets out a range of recommendations to empower local authority leaders, regenerate our towns and cities, and put tackling inequalities at the heart of this regeneration.
Towns Fund monitoring and evaluation strategy
Ministry of Housing, Communities & Local Government | 2 December 2021
This document sets out our approach to monitoring and evaluating the Towns Fund.
News
Developers given deadline to fix cladding crisis
LocalGov | 10 January 2022
Developers have been warned they could face legal action or future restrictions on funding and procurement if they fail to remove unsafe cladding. The Government has given developers until early March to come up with a plan for removing unsafe cladding on 11-18 metre buildings. Secretary of state for levelling up, Michael Gove, has written to the industry giving them a deadline to agree a fully funded plan of action. He said the Government will impose a solution in law if this is not done. He also said the Government could restrict access to government funding and future procurements on companies failing to fix the cladding crisis.
Councils to deliver £700m grants to businesses hit by Omicron
LocalGov | 7 January 2022
Councils will deliver £700m to businesses most affected by the Omicron variant in the next few weeks, the Government has announced. Hospitality, leisure and accommodation businesses will be able to apply for one-off cash grants of up to £6,000 per premises depending on rateable value. Local authorities will also have access to more than £100m worth of discretionary funding to support other businesses.
Survey reveals key strategies for town centre ‘renaissance’
LocalGov | 6 January 2022
A strong independent retail offer, a year-round programme of cultural events and family-friendly activities are the key strategies for underpinning successful town centres, new research finds. A new survey, published by the Institute of Economic Development (IED) and the planning and development consultancy, Lichfields, has found that 92% of economic development and regeneration professionals surveyed confirmed that town centre vacancy rates have increased in the past five years – with 71% reporting that growth in online retail has had ‘significant influence’.
Bury council welcomes £1m bid to buy football ground
LocalGov | 24 December 2021
Town hall leaders have welcomed the news that a bid to acquire Gigg Lane and bring back football to the stadium has won Government funding. The Government yesterday announced that Bury Football Club Supporters Society will be granted £1m from the Community Ownership Fund towards plans to buy the club and ground from the administrators.
Nottingham council approves Trent cycle bridge
LocalGov | 24 December 2021
Nottingham councillors have approved the preferred location for a new pedestrian and cycle bridge across the River Trent following a recent public consultation. The Waterside Bridge, funded through a grant secured from the Government’s Transforming Cities Fund, is designed to offer a safer option for people walking and cycling between the Waterside regeneration area on the north bank and Lady Bay on the south. In addition, new and enhanced connecting paths and crossing points will connect the bridge to the wider walking and cycling network.
Full list of places aiming to become Jubilee cities revealed
Cabinet Office and Department for Digital, Culture, Media & Sport | 23 December 2021
The full list of 39 places which have applied for city status as part of the 2022 Platinum Jubilee Civic Honours Competition has been announced today. For the first time ever, British Overseas Territories and Crown Dependencies were eligible to apply for the title as part of the competition.
Government announces £316m funding boost to tackle homelessness
LocalGov | 21 December 2021
The Government today announced a multi-million-pound funding package which will be allocated to local authorities according to the level of homelessness in their area. The £316m Homelessness Prevention Grant for the 2022-23 financial year will support households in England who are homeless or at risk of losing their home. Councils will use the funding to help them find a new home, access support for unexpected evictions and secure temporary accommodation where needed. See Press Release from Department for Levelling Up, Housing and Communities.
Hull council approves £96m city centre development
LocalGov | 21 December 2021
Hull City Council’s cabinet has approved a £96m development aimed at transforming the city’s centre.
Demolition of the site on Albion Square in Hull’s city centre will begin in early 2022 with construction starting in 2023. The development will feature a mixture of residential, office and retail space, as well as a large urban park. It will also include solar panels, EV charging points and a bike hub. Hull’s iconic Three Ships Mural will remain and be incorporated into the new development. The project is set to be completed in 2026.
City council considers bringing in parking levy
LocalGov | 21 December 2021
Leicester City Council has launched a consultation over a scheme that could see companies charged for car parking spaces. The proposed Workplace Parking Levy (WPL) would see employers with more than 10 spaces charged £550 per space per year for a licence to provide car parking for their employees. The council hopes the scheme will help meet environmental and air quality targets, and also reduce congestion in the city centre.
Boost for high streets and businesses as markets and outdoor marquees allowed permanently
Department for Levelling Up, Housing and Communities | 20 December 2021
High streets and local business are set to benefit from changes to planning rules, which mean markets can be held more often and marquees put up in pub and restaurant gardens without the need for planning permission.
Pubs, cafes and restaurants will now be able to install gazebos on their own land without planning permission, helping them to better make use of their outside space all year round. Councils will also be able to hold street markets as required without the need for a planning application. These measures were originally introduced during the pandemic will now be made permanent following public consultation.
Council publishes £250m plan to revitalise Blackburn
LocalGov | 17 December 2021
Blackburn with Darwen Council has published a £250m draft plan for developing Blackburn town centre over the next decade. The new framework, which has been led by BDP Architects, sets out proposals for bringing forward development sites, with the council anticipating up to 500 town centre homes and 1,000 new jobs linked to the development of a new business district.
London sees highest number of council homes built since 1970s
LocalGov | 16 December 2021
London has seen the highest number of new council homes built since the 1970s, the Mayor of London Sadiq Khan has announced. A total of 4,689 new council homes were started in London in the 2020-21 financial year, thanks to the Mayor’s Building Council Homes for Londoners programme. The number of council homes started annually has increased six-fold since 2016 and more than three-quarters (3,411) of the council homes started in London last year received funding support from the Mayor.
Birmingham to receive £72m in government funding for vital transport link
Department for Transport | 15 December 2021
Birmingham will benefit from £72m in government funding for essential maintenance work on a vital road link between the city centre and the M6. The Tame Valley Viaduct, which forms the northern section of the Aston Expressway, is starting to show signs of deterioration. This investment will ensure the link remains open for years to come. Maintaining the link’s future will also support and uphold access to other initiatives in the region, including the Birmingham City Centre Enterprise Zone, HS2 Curzon Street rail station and the Food Hub in Witton.
Mayor announces ambitious new plans to rewild London
Mayor of London | 13 December 2021
The Mayor of London, Sadiq Khan, has today announced a new £600,000 Rewild London Fund, that will help restore London’s wildlife sites and create more natural habitats for plants and animals to thrive. The new Rewild London Fund will be delivered with expert advice from London Wildlife Trust and will support 20-30 of sites to ensure that London’s special species thrive
Wider housing options would stop older people fleeing urban areas, report argues
LocalGov | 6 December 2021
More should be done to slow the flow of older people from urban areas to rural and coastal communities, a think tank has argued. In a new report, the Social Market Foundation (SMF) said new urban retirement housing should be developed to help older people spend their later years in town and city centres. It shows that by 2043, several coastal and rural local authorities will have a majority of households that are retired creating an unequal pressure on services and local economies.
Mayor announces £2m to support high street recovery in 15 boroughs
Mayor of London | 3 December 2021
The Mayor of London, Sadiq Khan, has today announced the 15 projects receiving more than £2m in funding through his High Streets for All (HSfA) Challenge. The projects will breathe new life into our town centres and high streets, helping them to flourish and thrive as we emerge from the pandemic and deliver on the Mayor’s mission to build back London’s economy and society. Full list of projects.
Governance & Reorganisation
Levelling Up Agenda: The State of the North Report
On 17 January 2022, the Institute for Public Policy Research North published its report entitled ‘State of the North 2021/22’. The report suggests that the levelling up agenda is not providing sufficient initiatives or investment to make up for the decreases that were seen as a result of the austerity policies pursued in the last decade. In December 2021 the Government announced that the release of the ‘Levelling Up White Paper’ would be further delayed into January 2022, however, as the end of January approaches, it looks as though publication could be delayed yet again.
IPPR North warn that despite the idea behind levelling up being one of devolution and providing greater powers and resources to regional authorities, their report highlighted that the country was becoming more centralised, with public spending becoming increasingly concentrated in central Government. The report also states that for every job created in the North, just under three were created in London by comparison, which it states is illustrative of a gulf between levelling up promises and the reality of one of the Government’s flagship policies.
The Department for Levelling Up, Housing and Communities has described the IPPR North report as ‘misleading’, stating that it only focussed on one part of the wider levelling up investment. The Department referred to infrastructure investment of over £96bn, affordable housing investment of £12bn and a further £2.6bn in a Shared Prosperity Fund. Notwithstanding those figures, for many this does not represent the shift in focus that sits at the heart of ‘levelling up’, which is the dissemination of power and resources to the regions.
In accordance with that sentiment, the IPPR North’s findings suggest that far more is needed in terms of broad and deep devolution. As the wait for the Levelling Up White Paper continues, it appears that local authorities, particularly in the North, will have to continue to work within the constraints of the powers and resources that they have, together with what IPPR North describes as a thinly stretched and overburdened workforce.
For further help and advice contact: Victoria Barman or Mark Robinson
Publications & Guidance
Election reform proposals ‘lack evidence base, consultation, and transparency’
Public Administration and Constitutional Affairs Committee | 13 December 2021
MPs on the cross-party Public Administration and Constitutional Affairs Committee are calling for the Government to stop the passage of a Bill that would introduce a requirement to show photographic ID to vote at polling stations and could give Downing Street more power over the election watchdog until more thorough consultations take place. In a wide-ranging report on the Government’s Elections Bill published today, the Committee said the Government’s case for mandating the presentation of photo ID at polling stations has ‘simply not been good enough’.
County Councils Network | 9 December 2021
The long-awaited levelling up white paper should include a framework for how the government will negotiate devolution deals with county areas, what powers it is willing to devolve and what conditions it will set, says a new Institute for Government report, published today in partnership with the County Councils Network (CCN) and Grant Thornton UK LLP. How to make a success of county devolution deals, published today and drawing on a private roundtable held on 22 November, sets out a series of recommendations for both central and local government. The report argues that a devolution framework would provide much needed clarity about how the devolution process will be taken forward. This should build on the principles set out last July that put county and unitary authorities in the driving seat for negotiating deals based on existing county geographies. And comment in LocalGov.
MPs to assess Coronavirus powers renewal procedures in new probe
Public Administration and Constitutional Affairs Committee | 9 December 2021
The PACAC have launched an inquiry that will examine the renewal and extension processes of the Coronavirus Act. A sunset clause in the Act means that the special powers it grants to combat the pandemic will lapse permanently on 25 March. Up to now, they were renewed by a Parliamentary vote at 6-month intervals. Committee Chair William Wragg said, “If the Government decides to maintain the sweeping powers of the Coronavirus Act, it is vital that the rationale behind their extension is fully open to scrutiny and the data supporting it is not only satisfactory, but also readily and rapidly available in good time.”
Life in a northern town: Why levelling up must be delivered up North
The Northern Powerhouse Partnership | 6 December 2021
Levelling up northern towns must focus on helping local people access well-paid, skilled jobs in order to drive up wages and productivity, primarily through devolution to Metro Mayors to invest in transport infrastructure, education and skills, as well as innovation backed by government. Jessica Bowles, Head of Strategy at Bruntwood, said: “This report provides a vitally needed blueprint towards realising this vision. This is an important piece of work in the wider context of Levelling Up, and it shows that the North knows what’s needed to solve its challenges. We now just need Whitehall to listen.”
News
Local Government Lawyer | 7 January 2022
A former Cabinet member for housing at Southwark Council breached the local authority’s Code of Conduct by acting anonymously through a Twitter account, an independent investigation by law firm Bevan Brittan has found. After his exposure in the local press as being behind the anonymous account (@SouthwarkYIMBY), Cllr Leo Pollak resigned his cabinet role in February 2021 and read out an apology at a full council meeting. He also referred himself to the monitoring officer, while one of the campaigners mentioned made a complaint in March 2021 about him to the council.
Regulator fines Mazar £314,000 for audit failures
LocalGov | 6 January 2022
The Financial Reporting Council (FRC) has fined Mazars LLP £314,000 for failures relating to an audit of an unnamed local authority’s 2019 financial statements. The fine, which was reduced to £250,000 after Mazars accepted the FRC’s findings and cooperated, was for a failure to comply with the Regulatory Framework for Auditing. The most significant failure identified by the FRC’s Enforcement Committee was in respect to property valuations relating to the council’s buildings which ‘could indicate a material overvaluation.’
Council-backed energy firm close to collapse
LocalGov | 5 January 2022
Together Energy, which is 50% owned by Warrington Council, is close to running out of funding, according to reports. A national outlet has quoted sources claiming the firm’s efforts to secure external funds has failed to find new investment and it faces collapse by the end of the month. The council has declined to comment.
Local Government Lawyer | 5 January 2022
The Government has reiterated the current position that any permanent change allowing local authorities to meet remotely requires primary legislation, after calls last month from organisations including the Local Government Association (LGA), Lawyers in Local Government (LLG) and the Association of Democratic Services Officers (ADSO) for councils to be given the ability - even if only on a temporary basis - to hold meetings in this way in light of the impact of the Omicron variant. Baroness Bennett of Manor Castle, a Green Party peer, had submitted a written question asking whether, further to the spread of the Omicron variant, “local government bodies can hold meetings remotely if they choose”. In a written statement issued on 31 December 2021, Lord Greenhalgh,, Minister of State for Building Safety and Fire jointly at the Department for Levelling Up, Housing and Communities and the Home Office, said: “A High Court judgement handed down on 27 April 2021 confirmed that the Local Government Act 1972 specifies that council meetings must take place in person at a single, specified, geographical location and being “present” at such a meeting involves physical presence at that location. “This judgement confirmed that the regulations which allowed local authorities to meet remotely during the Covid-19 pandemic did not apply to meetings after 6 May 2021.” He added: “Any permanent change would require primary legislation, and would depend upon Parliamentary time being available. Non-statutory or other informal meetings where local authorities deem that in-person attendance is not required can be held virtually.”
Local Government Lawyer | 5 January 2022
The Association of Democratic Services Officers (ADSO) and Lawyers in Local Government (LLG) have launched a petition calling for councils to be given the choice to meet remotely. On a Change.org page the two organisations said: “We do not wish to impose remote meetings on councils. They should have the choice to decide how they run their meetings depending on local circumstances. They know best. “The period of lockdown showed that remote meetings bring so many benefits to local democracy and residents, apart from the obvious public health safeguards. It is no longer just a response to Covid.”
Council forecasts no capitalisation direction this year
Public Finance | 4 January 2022
An improved financial outlook means Peterborough City Council is unlikely to need to use capital financing flexibilities which it previously requested from central government, it has emerged. In February, Peterborough City Council was given conditional permission for a £20m direction for 2020-21, allowing it to use capital funding to meet revenue pressures, after it used £5.8m in a similar way in 2019-20. However, a report going to a cabinet meeting next week said that the council does not expect to need this year's direction, with the budget balanced by £3.3m from reserves.
Councils to get £100m to support businesses hit by Omicron
LocalGov | 22 December 2021
Council leaders have welcomed the Government’s announcement that more than £100m will be made available for local authorities to support businesses affected by COVID-19.
Chancellor Rishi Sunak yesterday announced £1bn in support for businesses most impacted by Omicron across the UK. This includes a £102m top up for the Additional Restrictions Grant (ARG).
MP opposes 'undemocratic' council merger
LocalGov | 21 December 2021
The proposed merger of two district councils has been labelled ‘undemocratic’ by a local MP.
Stratford-on-Avon and Warwick DCs formally voted with comfortable majorities to put forward the case for a new South Warwickshire Council to the Department for Levelling Up, Housing and Communities. However, MP for Warwick and Leamington Matt Western has spoken out against the merging of the two councils, calling it a ‘power grab’. Mr Western has collected 1,408 signatures on a petition calling for the formation of a citizens’ assembly and referendum on the issue. He claimed the number of those signing the petition was more than the total respondents to Warwick’s consultation on the issue.
Revised Prudential Code published
Public Finance | 20 December 2021
The final version of CIPFA’s Prudential Code has been adopted after a consultation taking the best part of a year. The new version of the code replaces wording which previously guided UK local authorities away from borrowing ‘in advance of need’. The new iteration creates three new categories of investments. New restrictions on borrowing are focused on just one of these categories – investments that are made ‘primarily for financial return’, including commercial property. Richard Lloyd-Bithell, senior policy and technical manager at CIPFA, said: “There has been a lot of misrepresentation about the code revision’s wording recently. “The new code does not introduce any new restrictions on councils borrowing for purposes core to their core aims, such as for housing and regeneration projects, or for treasury management purposes. “What it does do is state that it is not prudent for authorities to undertake borrowing that has the main aim of producing commercial income.” The new code states that authorities “must not borrow to invest primarily for financial return”.
Gove unveils £54bn finance settlement
LocalGov | 16 December 2021
A funding package worth up to £53.9bn for councils next year has been announced by local government secretary Michael Gove. The provisional local government finance settlement for 2022-23 represents an additional £3.5bn or 4% increase in real terms compared to 2021-22.
Sector voices disappointment over 'stop-gap' local government settlement
Public Finance | 16 December 2021
Local authorities are set to receive a share of a one-off £822m services grant in 2022-23, to help meet service demands, as part of a single-year provisional local government settlement announced on Thursday. The un-ring fenced grant will go to all local authorities in England, to help manage services pressures including funding to cover the increase in employer national insurance contributions, a consultation published alongside the settlement said. The single-year settlement would give the government the time to assess how it will share out resources fairly in future years, the consultation said.
Nottingham issues Section 114 over 'unlawful' finances
LocalGov | 16 December 2021
Nottingham City Council has issued a Section 114 notice following the recent discovery that it unlawfully diverted cash from its housing revenue account (HRA) to general funds. Unlike a more conventional S114 notice issued when a council runs out of cash, one issued for unlawful finances does not immediately halt spending. And comment in Public Finance.
Slough’s financial pressures could hit £300m
Public Finance | 14 December 2021
Cash-strapped Slough Borough Council could be facing financial pressures of more than £300m by 2025, according to its finance director. In July, when Slough became just the third authority in the last twenty years to issue a section 114 notice, freezing all non-essential spending, it forecast a gap of £174m by 2024-25. However, Steven Mair finance director at the authority, said that the figure is now forecast at £308m, 77% more than the quoted figure five months ago.
Two districts approve merger plans
LocalGov | 14 December 2021
Warwick and Stratford-on-Avon district councils have both agreed to merger plans which will see the establishment of a single South Warwickshire District Council. Following full council meetings, the district councils have agreed to formally submit a request to the secretary of state at the Department for Levelling Up, Housing and Communities (DLUHC) to create a South Warwickshire District Council. The local authorities argue that the merger is the best way to deal with ‘significant financial challenges’ and ensure that local government in the South Warwickshire area is financially sustainable.
Spending review prompts more calls for long-term funding answers
Room151 | 13 December 2021
When the chancellor delivered this autumn’s spending review it was not without merit. But despite claims of a three-year settlements, experts worry funding structures remain distinctly short term.
Government urged to allow remote council meetings
LocalGov | 10 December 2021
Council leaders have urged the government to rethink the rules to allow remote council meetings.
During the initial stages of the pandemic, councils were able to hold official meetings via video conferencing while the country was in lockdown. But when the emergency legislation ran out, councillors were forced back into council chambers. Now that the government has put Plan B in place to deal with the Omicron variant, which requires people to work from home where possible, the Local Government Association (LGA) has urged central government to ‘urgently bring forward emergency legislation’ to allow remote and hybrid meetings.
Interim extension of current Transport for London funding settlement
Department for Transport | 13 December 2021
An interim extension of the current Transport for London funding settlement has been granted until 17 December 2021. The current Transport for London (TfL) funding settlement that was due to expire on 11 December 2021.
Extend outbreak funding as part of Plan B to protect local contact tracing support
Local Government Association | 10 December 2021
Councils across the country continue to lead the local fight against the pandemic. However, the Government’s Contain Outbreak Management Fund is set to end in March 2022, which poses a threat to councils' ability to ramp-up efforts in response to the Omicron variant. Councils will need an extension to the Government’s COVID-19 outbreak funding to tackle rising Omicron cases and meet a surge in demand for local contact tracing.
Counties face funding shortfall of over £500m next year
LocalGov | 10 December 2021
County councils are facing a funding gap of over £500m in 2022 resulting in council tax rises or service cuts, leaders have warned today. New analysis by the County Councils Network shows that even if the extra £1.5bn for local government in 2022/23 is targeted at addressing pressures in adult social care, it would still leave counties with a shortfall of at least £561m next year.
Peterborough to halt capital spending and limit borrowing
Public Finance | 10 December 2021
Cash-strapped Peterborough City Council is set to freeze its capital spending in 2021-22, and nearly eliminate new borrowing next year. In a financial action plan to go before an extraordinary council meeting next week, the authority has proposed postponing new capital spending this year to help manage financial pressures. This would mean a reduction of £9.4m on the forecast end-of-year spend of £95.8m, with existing spending commitments meaning a capital programme of £86.4m during the year. As part of the action plan, a new capital strategy would be adopted in 2022-23, including no new borrowing, unless failure to do so would result in a breach its statutory duties, the report said.
Leaked White Paper reveals reorganisation master plan
LocalGov | 9 December 2021
A leaked version of the Levelling Up White Paper has revealed plans to scrap two-tier local government in England. The delayed paper, seen by The Independent, lays out plans for devolution to directly elected leaders, across a defined economic geography, as expected. But it also argues for a simpler local government structure, reorganising all councils into a unitary structure.
LGA calls for urgent legislation for remote council meetings in light of Omicron variant
Local Government Association | 9 December 2021
Cllr James Jamieson, Chairman of the LGA, calls for urgent legislation to facilitate councils being able to host remote meetings in light of the Omicron variant.
Borough in section 114 ‘territory’
Public Finance | 8 December 2021
Copeland Borough Council is at risk of issuing a section 114 notice unless it receives further exceptional support, according to a government-commissioned review. The council’s 2021-22 budget was approved on the basis of a £1.5m capitalisation direction, allowing it to use capital resources for day-to-day spending, alongside a £1.8m drawdown in its reserves, a finance review from CIPFA said. However, the organisation said that a forecast £4.2m gap in next year’s budgets, combined with the draining level of reserves, puts the authority at “significant financial risk” in the short term. The report said: “The scale of the financial challenge facing the council in 2021-22 is considerable.
Nottingham uncovers serious finance error
LocalGov | 3 December 2021
Nottingham City Council is taking urgent action after uncovering a serious accounting error while it battles with its failing finances. The on-going review of the council’s financial governance discovered the council was putting cash from its Housing Revenue Account (HRA) – money that should be ring-fenced – into its general fund. It is thought that around £15.86m which should have been ring-fenced for housing related functions has been misdirected into the council’s general funds since 2014/15.
CIPFA reveals support for Prudential Code changes
Public Finance | 3 December 2021
Two-thirds of respondents to a consultation on a strengthening of the Prudential Code support adopting the proposed new wording without amendment, a senior CIPFA figure has revealed.
Struggling council drops proposal to create community bank
Public Finance | 1 December 2021
Wirral Council has approved a financial recovery plan which includes suspending a planned £5m investment to create a community bank, following a critical government-commissioned review.
Commissioners sent into Slough Borough Council
Department for Levelling Up, Housing and Communities | 1 December 2021
Commissioners have been sent in to address serious financial and management failures at Slough Borough Council at the request of the Secretary of State for Levelling Up, Housing and Communities. The commissioners will be led by Max Caller CBE, who led the best value inspections at Northamptonshire and Liverpool Councils and was a commissioner at Tower Hamlets. He will be supported by finance commissioner Margaret Lee, former statutory finance officer at Essex County Council and member of the London Borough of Croydon Improvement and Assurance Panel. See also comment in Public Finance Government confirms Slough commissioners
Contract Management
Reclaiming insurance costs in PFIs with ‘insurance gain sharing provisions
Local authorities with PFIs which include ‘insurance gain sharing” provisions could potentially claw back significant sums by challenging the finding of insurance cost reports.
Bevan Brittan is currently acting for several public bodies challenging the findings of the jointly appointed insurance broker, with six figure sums likely to be recovered in some cases.
Insurance gain sharing provisions
Some PFIs include provisions around “Insurance pain/ gain sharing” and SOPC4 included standardised wording for PFI contracts. These provisions set out that any savings made when placing insurance, which are as a result of market movement or as a result of the required insurances being placed within a portfolio, are shared between the parties.
The drafting was included on the assumption that insurance costs would rise and that Project Cos would seek to claw back those additional costs from the public sector. In reality, the insurance market has proved steady and, far from costing more, the cost of placing insurance has in fact fallen.
Despite this, there is a pattern of appointed insurance brokers finding that there is no exceptional saving, and that accordingly no sums are due to the local authority. Local authorities should consider challenging that finding. Bevan Brittan’s appointed experts are often finding there is a significant saving that can be reclaimed by public bodies.
Act quickly
However, it is important to note, that under the Project Agreement, any challenge needs to be raised within the requisite timescales.
The timescales are strict, and often public bodies have just 25 days to respond after the insurance broker produces its report. There is a risk that the report will be deemed to be accepted if public bodies do not respond within that timescale.
What local authorities need to do
If PFIs are part of your portfolio, the first step is to check when any joint insurance cost reports are due. This is usually set out on the insurance schedule to the Project Agreement.
You should be aware that the report you receive may not comply with the contractual provisions and may not accurately reflect the market conditions. Accordingly, you may be able to challenge it and reclaim insurance savings. However, you need to act quickly.
Bevan Brittan is helping a number of local authorities challenge insurance brokers’ reports in PFIs with insurance gain sharing provisions. This includes reaching a settlement for one body with an exceptional saving of approximately £900,000, and another case being pursued through adjudication.
Our market leading PFI and PPP team can work with you to challenge the findings, and advise as to whether a commercial negotiation, or a more formal dispute resolution process can be undertaken. We advise clients across a range of sectors, including health, education, highways, street lighting, waste and accommodation.
If you think this issue may affect you, please get in touch with Judith Hopper to find out how we can help you.
Publications & Guidance
Phase 1 PFI Expiry Health Learnings Report
Infrastructure and Projects Authority | 16 December 2021
An analysis of the first 52 PFI Expiry Health Checks completed in 2021/22. The IPA offers all PFI projects within 7 years of expiry an initial expiry health check, with further reviews at 5 and 3 years. The health check involves a review by the IPA of key project documentation and a structured interview with the contracting authority. The review uses a diagnostic tool to help assess and benchmark the project’s readiness for expiry.
The analysis from these first 52 health checks provides some vital lessons for the public sector. See also Majority of PFI projects not prepared for expiry in Public Finance.
An Independent Review of Public Sector Construction Frameworks
Cabinet Office | 16 December 2021
Review commissioned by Lord Agnew and led by Professor Mosey with a brief to create a new ‘Gold Standard’ for public sector frameworks and framework controls. Full report Constructing the Gold Standard - An Independent Review of Public Sector Construction Frameworks
Public-Private Partnerships: Driving Growth, Building Resilience
Local Government Association | 12 December 2021
The LGA has commissioned Partnering Regeneration Development and Newbridge Advisors to produce this good practice guide. It aims to support councils to plan and establish more effective public-private partnerships, which can deliver the investment, development and services that are essential to boosting economic growth and recovery.
True Value: towards ethical public service commissioning
Localis | 7 December 2021
The public sector should strive to be more ethical and place-sensitive when buying goods and services worth up to £300bn each year, the think-tank Localis has argued. In a report published today entitled ‘True Value: towards ethical public service commissioning’, the place experts examine the current state and likely future of the public service marketplace, as well as the role of social procurement reforms to advance the ‘levelling up’ agenda. The paper urges the public sector to make the most of the freedom from EU directives to reform public spending on goods and services so the process becomes more strategic, innovative and delivers better services and local outcomes for communities. Among key recommendations for place-based procurement reform, Localis calls for central government to prove the impact of their procurement spend, especially in priority areas of the country, to show how they are achieving goals outlined in the Levelling Up White Paper. And comment in LocalGov.
Green Paper: Transforming public procurement. Consultation outcome
Cabinet Office | 6 December 2021
This publication summarises the Government response to the consultation and elaborates on its plans for how public procurement will be transformed.
Procurement Policy Note 10/21 – Thresholds and Inclusion of VAT
Cabinet Office | 6 December 2021
This note provides the new threshold values for the Public Contracts Regulations and sets out a change for estimating contract values to be inclusive of VAT.
Government levels playing field for SMEs
Cabinet Office | 4 December 2021
The government has published a ‘Selling To Government Guide’ which will give small and medium-sized enterprises (SMEs) essential information on how to bid for and win government contracts.
3 December 2021 | Welsh Government
The purpose of WPPN 12/21 is to provide public sector bodies in Wales with advice on the actions that can be taken on Scope 3 Green House Gas (GHG) CO2e emissions with a particular focus on the purchased goods and services element. CO2e = Carbon dioxide equivalent, is a term for describing different greenhouse gases in a common unit. For any quantity and type of greenhouse gas, CO2e signifies the amount of CO2 which would have the equivalent global warming potential GWP impact. This supports the journey to a carbon neutral UK by 2050 and more specifically Welsh Government’s ambition of achieving a carbon neutral public sector by 2030.
News
Local Government Lawyer | 18 January 2022
The Government has won an appeal over a High Court ruling that its decision to award a £560,000 contract for the provision of focus group and communications support services during the pandemic to Public First without public notice or competition gave rise to apparent bias and was unlawful. Relying on the grounds of “extreme urgency” under Reg 32(2)(c) of the PCR 2015, the Minister for the Cabinet Office successfully appealed against the finding of apparent bias. The Good Law Project is understood to be seeking permission to take the case to the Supreme Court.
Use of VIP lanes in government PPE procurement unlawful
Local Government Lawyer | 14 January 2022
The High Court has ruled in Good Law Project Ltd & Anor, R (On the Application Of) v The Secretary of State for Health and Social Care [2022] EWHC 46 (TCC) that operation of the ‘High Priority Lane’ for awarding PPE contracts during the height of the Covid-19 pandemic was in breach of the obligation of equal treatment under the PCR 2015, and therefore unlawful. However, the judge also concluded that the contracts in question would likely have been awarded to the same companies with or without the VIP lane, and declined to grant declaratory relief to the claimants.
Borough to end services joint venture
Public Finance | 4 January 2022
Great Yarmouth Borough Council is to set up a new subsidiary company to manage services, after it decided against extending a joint venture. In 2003, the authority set up Great Yarmouth Borough Services in collaboration with Norse Commercial Services, a subsidiary of Norfolk County Council, to provide services including facilities management, property services and care homes. However, Great Yarmouth confirmed last month that it will not renew the joint venture agreement when it expires in March 2023, and will set up its own company to provide services.
Regulator to progress Veolia and Suez investigation
LocalGov | 22 December 2021
The competition regulator has announced that it will progress its investigation of the proposed merger between Veolia and Suez to the next stage. The Competition and Markets Authority (CMA) warned earlier this month that the merger could lead to a loss of competition in the supply of several waste and water management services in the UK.
Council to bring waste and recycling centres in-house
LocalGov | 16 December 2021
Kirklees Council will bring Household Waste and Recycling Centres in-house as part of an effort to give the council more control over public-facing services. The local authority’s cabinet met yesterday to decide on new proposals that will see a transformation in how waste is collected, recycled and disposed of in Kirklees. The council is in year 24 of a 25-year waste PFI contract with the waste management company Suez. However, the contract was recently extended and will now end in 2025.The council now intends to deliver the Household Waste Recycling Centres in-house, so that they can recycle more materials at them.
Local Government Lawyer | 15 December 2021
A TCC judge has lifted the automatic suspension arising from a challenge by the incumbent (Kellogg Brown & Root) to a procurement by the Mayor’s Office for Policing and Crime (MOPAC). The ruling in Kellogg Brown & Root Ltd v Mayor's Office For Policing And Crime & Anor [2021] EWHC 3321 (TCC) concerned a £400m framework agreement and call-off contract for the provision of services to support the efficient running of MOPAC's estate of properties through contract, financial and operational management of the property supply chain, supported by systems and information technology. The court found that there was a public interest in MOPAC achieving the savings envisaged from the contract and that damages would be an adequate remedy for the claimant.
MEPs want the new international procurement instrument to apply more widely
European Parliament | 14 December 2021
Parliament has adopted its position on the international procurement instrument, a tool to help provide EU companies with more opportunities to tender outside the EU. Parliament backed the overall aim of the proposed International Procurement Instrument (IPI) but tweaked its design, scope and member states’ discretionary powers in the way it is applied. The IPI encourages public procurement markets in countries that protect this sector to be more open. It does so by introducing measures that limit non-EU companies’ access to open EU public procurement tenders if they come from countries that do not offer similar access to EU enterprises. The instrument would empower the Commission to determine whether and to what extent companies from a third country must be subject to an IPI measure.
Somerset Waste Partnership faces £1.2m deficit due to rising costs
MRW | 14 December 2021
Somerset Waste Partnership (SWP) has predicted a £1.2m budget deficit due to rising costs with its contractors. The council’s joint scrutiny panel were told that costs have risen because of higher waste volumes and Covid-19 precautions, as well as inflationary pressures. Under the contract, different contractors deal with Somerset’s waste. Suez carries out kerbside collections and Biffa runs 16 household waste recycling centres.
The meeting learned that the SWP predicts a £1.2m overspend on the year’s budget – 2.5% of the total. The figure does not include costs or savings associated with Somerset’s associated 'Recycle More' programme, which have not been applied.
Auditor critical of council contract management
Public Finance | 10 December 2021
External auditors have issued a number of statutory recommendations to Sandwell Council, following what it said was a breakdown of relations between senior officers and members and a lack of clear contract responsibility. In a Value for Money report published earlier this week, external auditor Grant Thornton noted a deteriorating officer and senior member relationships over a number of years, which has led to poor progress on resolving service and governance issues. It also identified a number of key contracts which were impacted by either poor specification during procurement, or a lack of clear contract management responsibility.
Haringey Council calls for halt to £600m EfW at Edmonton
MRW | 8 December 2021
Haringey Council has broken ranks with other members of the North London Waste Authority (NLWA) by calling for a rethink of a £600m energy-from-waste (EfW) project. The North London Heat and Power Project at Edmonton is intended to replace an ageing EfW plant with a new one able to divert 700,000 tonnes of waste a year from landfill, and will also house a recycling facility capable of handling 135,000 tonnes a year of material. Authority members are due next week to award further construction contracts, but Haringey’s Labour leader Peray Ahmet has called for a halt while other options are examined.
Veolia and Suez merger criticised by competition authority
LocalGov | 8 December 2021
The merger of Veolia and Suez could lead to a loss of competition in the supply of several waste and water management services in the UK, according to the Competition and Markets Authority (CMA). Veolia and Suez are two of the largest suppliers of waste management services to councils in the UK. After the two companies decided to merge, the CMA received a number of complaints from customers who had competition concerns.
Veolia and Suez are two of only a small number of suppliers active within the UK that are able to service the largest and most complex waste management contracts with councils. As a result, the merger could lead to higher prices and lower quality services across a range of waste management activities in the UK.
Government revises procurement proposals to maintain flexibility
Public Finance | 7 December 2021
The Cabinet Office has dropped proposals for some changes to post-Brexit procurement processes, after councils complained that they need the ability to tailor contracts for health and social care services. The government’s procurement green paper, published in December 2020, proposed the removal of the current 'light touch' regime, a move which would have restricted councils ability to adopt different procurement processes for certain services, including social care and education. However, a number of bodies argued that these contracts are often highly-tailored, specialised services requiring shorter timescales, and that these should be separate from standard procurement regulations, a consultation response published yesterday said.
The response said: “In light of additional stakeholder engagement, we agree it is helpful to retain the light touch regime, but plan to make some improvements to its scope and application.”
Disputes & Regulatory Support
Court of Appeal upholds the dismissal of a teacher’s compensation claim for assault by a pupil
Colin Cunningham v Rochdale Metropolitan Borough Council - Court of Appeal 19 November 2021
Why is the judgment important?
Firstly it confirms that if an employer fails to meet the standards it has set itself in its own policies, this can represent a breach of duty of care towards its employees.
However the judgment also highlights the crucial importance of causation – it is not enough for an employee to show that the employer was in breach of duty; the employee must also go on to establish that the breach of duty actually caused the injury complained of.
The basis of the appeal
Mr Cunningham appealed the trial judge’s dismissal of his compensation claim, following a serious assault on him by a pupil on 3 November 2015. The same pupil had assaulted him previously, on 22 September 2015.
Mr Cunningham argued that the trial judge should have found that the school was in breach of its duty of care to him, on account of its failure to comply with its own written policies. He alleged that the school should have carried out a risk assessment following the first assault, and arranged a return to school interview and a restorative justice meeting between the pupil and Mr Cunningham.
The Court of Appeal unanimously decided that the trial judge, having accepted (with some concern) that the above measures had not been taken, should have concluded that they constituted breaches of duty on the school’s part. Employers generally are required to carry out suitable and sufficient risk assessments, so that reasonable steps can be taken to reduce workplace risks.
The Court commented that “the unexplained failure by the school to comply with its own policies was a breach of duty, because it fell below the standards of care that the school had set for itself.”
However, and crucially, the Court of Appeal rejected Mr Cunningham’s contention that the second assault would have been avoided had these measures been taken. In doing so the Court distinguished the previous decision in Vaile v Havering LBC.
In that case, a pupil with Autistic Spectrum Disorder had attacked a teacher. The Court concluded that, on the balance of probabilities, the provision of appropriate training would have prevented the assault. Mr Cunningham, in contrast, was experienced and trained, and the senior teaching staff knew of the deterioration in the pupil’s behaviour. A careful analysis of the relevant factual situation was required, in keeping with the conventional approach to the issue of causation.
The school had made many interventions and involved outside agencies in respect of the pupil’s behaviour. Mr Cunningham was unable to highlight precisely what would have appeared in the “missing” risk assessment which would have prevented the second attack on him.
The Court of Appeal concluded that had a return to school interview or restorative justice meeting taken place, it was possible, but not on the balance of probabilities probable, that this would have prevented the second assault.
As a result, whilst Mr Cunningham was successful in establishing breaches of duty, he could not establish that those breaches were causative of the second assault, and his claim for compensation against the LEA was therefore dismissed.
For advice on dispute matters, please contact Olivia Carter.
Publications
Committee recommends amendments to Judicial Review and Courts Bill
The Joint Committee on Human Rights | 7 December 2021
The Joint Committee on Human Rights has called on the Government to amend proposals in the Judicial Review and Courts Bill which have the potential to deny effective judicial remedies and remove a safeguard against flawed asylum decisions. Judicial review is a crucial component of the rule of law, holding public authorities to account by checking that their decisions and actions comply with the law and enabling those affected to enforce their rights. The Judicial Review and Courts Bill makes changes to how judicial review operates and the Joint Committee on Human Rights has undertaken legislative scrutiny to examine the impact of these changes on human rights. Full report Legislative Scrutiny: Judicial Review and Courts Bill.
News
Local Government Lawyer | 6 January 2022
Winchester City Council has been threatened with a judicial review by a local campaign group over its plans to turn over a former leisure centre site to the University of Southampton. The council said the Friends of River Park had sent a pre-action letter, which voiced concern about the consultation process.
Council ends legal fight over permission for 133-home retirement village
Local Government Lawyer | 6 January 2022
South Oxfordshire District Council last month confirmed it has dropped any further legal challenges to a planning inspector’s approval of a 133-homes retirement village in Sonning Common, which the council had rejected as it would be in the Chilterns Area of Outstanding Natural Beauty (AONB). The council leader argued that planning inspectors’ discretion is too wide in deciding appeals in such cases. South Oxfordshire said it made two unsuccessful attempts to challenge the planning appeal decision, and following legal advice decided not to pursue the matter.
Government wins appeal over which council was responsible for s.117 after-care services
Local Government Lawyer | 23 December 2021
The Department for Health and Social Care (DHSC) has won its appeal in a much-anticipated Court of Appeal ruling on which of two local authorities should pay for after-care services pursuant to s.117(3) of the Mental Health Act 1983 where the user has been detained, released and then, sometime later, detained again under the Act. In the High Court Mr Justice Linden had concluded that the answer in the particular case was Swindon Borough Council because that was where the user (JG) was living at the time of her second detention. The DHSC maintained that it should have been Worcestershire County Council to pay, because it had originally placed JG in a care home in Swindon. It was accepted that JG was ordinarily resident in Worcestershire prior to her first detention. In Worcestershire County Council, R (On the Application Of) v Secretary of State for Health and Social Care [2021] EWCA Civ 1957 the Court of Appeal allowed the Department’s appeal.
Local Government Lawyer | 22 December 2021
Hillingdon Council has lost an attempt in the High Court to challenge a decision by London mayor Sadiq Khan to allow a tower block to be built in the borough. In London Borough of Hillingdon, R (On the Application Of) v Mayor of London [2021] EWHC 3387 (Admin) Mrs Justice Lang said the only ground on which Hillingdon partially succeeded was the mayor’s failure to disclose a technical note to it. But she refused relief under section 31(2A) of the Senior Courts Act 1981 “as it appears to me to be highly likely that the outcome…would not have been substantially different if the conduct complained of had not occurred”.
Council-owned waste business secures judgment for £460k over refuse removal contract
Local Government Lawyer | 2 December 2021
A waste company wholly-owned by Neath Port Talbot Borough Council has been awarded damages exceeding £460,000 against a firm it contracted to remove waste from its refuse sites.
In Neath Port Talbot (Recycling) Ltd v James Heys & Sons Ltd [2021] EWHC 3157 (Comm) HHJ Keyser found that James Heys & Sons had breached contracts with Neath Port Talbot (Recycling) (NPTR) concerning the removal of refuse derived fuel (RDF) - a fuel made from unrecyclable wastes - green waste and recyclable materials. NPTR contracted Heys in 2017 for an RDF disposal contract, and another, known as the LOTS contract for the recyclables and green waste. Heys was contractually bound to remove 30,000 tonnes of RDF but shifted only 6,139.92 tonnes. NPTR said this was a breach of contract and claimed damages for the costs of disposing of the remaining 23,862.84 tonnes using other firms.
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Legal Review: ESG (Environmental, Social and Governance)
In this event we discussed the different ESG elements to be aware of, and what action you should be taking now to be prepared
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Our presenters discuss mandatory ADR, the new practice direction for witness statements, dangers when instructing experts, and a recent case on legal privilege.
Legal Review: Commercial and Projects
This event looked at the House of Commons PAC report on the successful delivery of infrastructure projects, the future of smart contracts, and a review of case law on liquidated damages, restrictive covenants and contractual limitation periods.
Legal Review: Construction Update
Our presenters look back at key cases in the previous year, and looked ahead to legislative changes for the sector in the coming year, including the Building Safety Bill.
Legal Review: Property and Environment Act
In this session we highlighted the key topics in property from the last 12 months, including service charge developments, electric vehicles and the Environment Act 2021.
