30/05/2023
LA Spotlight
The role of local authorities in developing the Hydrogen economy
We are seeing an increasing momentum gather around the opportunity for Hydrogen to support in decarbonising elements of the UK economy that are hard to electrify such as gas heating systems or powering heavy vehicles (think freight or construction vehicles).
The volume of hydrogen required remains an open question, but in its Energy Security Strategy the UK Government has its eyes set on ten GW of production capacity by 2030. This will require a concerted effort from all stakeholders to design, fund and implement projects across the hydrogen ecosystem from production, storage, distribution and usage across the built environment and transportation sectors.
The role of local government in supporting and developing this emerging economy will inevitably be bespoke to each authority’s location, market, priorities and decarbonisation plans. However, there are a range of common interfaces and issues that will likely be common to all authorities across the UK:
- Transport – although the focus for decarbonisation of cars and lighter vehicles has been on electric solutions for heavier vehicles the weight of the battery required means hydrogen solutions remains a viable solution. For local authorities this could include the potential to support pilot hydrogen projects for busses, fire engines, ambulances or refuse vehicles.
- Planning – the planning function of local authorities in respect of a consenting regime for hydrogen projects will be critical, particularly in respect of the speed of delivery of hydrogen projects. Hydrogen refuelling stations, hydrogen storage infrastructure, distribution networks etc. will all require local authorities to understand the hydrogen economy and potentially how zoning or hubs (as per the direction of travel for district heating and onshore wind) may need to play a role in local development planning.
- Funding – to support the Hydrogen economy funding is being made available to innovative Hydrogen projects (including potentially local authorities partners) across the UK, notably initial rounds of the Net Zero Hydrogen Fund. Given the interfaces with the transport sector and planning matters the likelihood of being granted successful funding for hydrogen on a local authority patch will be increased with the early engagement and support of the authority.
Our Energy Team supports clients across the country on the preparation for and delivery of innovative energy projects, fielding a team of commercial, construction, procurement/subsidy control, property and governance lawyers. For further information on how we can help you, contact:
Net Zero
Using the Energy Usage Streamlined Subsidy Scheme to Give Subsidies for Energy Efficiency Projects
As progress towards Net Zero gathers momentum, analysis is often required to ensure that public subsidies for energy efficiency measures are compliant with the subsidy control rules. Local authorities may be interested in the Energy Usage Streamlined Subsidy Scheme which has been set up under the Subsidy Control Act 2022 to enable subsidies to be given more quickly and easily for a range of purposes, including for projects to retrofit energy efficiency measures and low carbon heating into buildings and for the upgrade or construction of green heat networks.
When a local authority proposes to give a subsidy, it must ordinarily assess whether the subsidy complies with seven subsidy control principles and, where relevant, additional principles relating to energy and the environment. This can be an onerous exercise and can often slow down the decision-making process. Where the Scheme applies, an assessment of the subsidy against the principles is not required and the local authority need only check that the subsidy falls within the terms of the Scheme. There is also the advantage that a subsidy will not be vulnerable to challenge under the Subsidy Control Act 2022 provided it complies with the terms of the Scheme.
The Scheme covers subsidies within the following categories:
- Category 1: subsidies for Energy Demand Reduction Projects
- Category 2: subsidies for Green Heat Network Projects
- Category 3: subsidies for Green Skills Training
Category 1 is designed to help decarbonise over 30 million homes, as well as non-domestic buildings, and lower their energy usage. An Energy Demand Reduction Project is a project involving the installation of any of the following measures in buildings where they have been identified following an energy audit of the building:
- Energy efficiency measures (such as upgrading of insulation or installation of double glazing);
- Low carbon heating measures (such as installation of a heat pump or connection to a low carbon heat network)
- Additional energy infrastructure (such as solar photovoltaic (PV) or energy storage infrastructure for on-site generation).
Subsidies can be given for up to 40-60% of the eligible costs of the project (depending on the size of the recipient) but subject to an overall cap of £3m per enterprise per project. Where the project involves the installation of low carbon heating, the eligible costs which can be subsidised are limited to the additional costs of installing the low carbon heating over and above what it would have cost to install a normal heating system.
Category 2 is designed to support the upgrade or construction of green heat networks, in recognition of the fact that developing low-carbon heat networks is currently more expensive than fossil fuel alternatives. The Scheme can be used to support up to 50% of the combined commercialisation and construction costs of a project, subject to an overall subsidy cap of £15m per enterprise per project, and subject to no more than 5% of the subsidy being used for commercialisation costs. There are a number of technical conditions in relation to the capacity of the network and a cap on its CO2e/kWh output. A key limitation is that there must be a competitive bidding process for the subsidy to ensure that the best enterprise and project plan is supported. Fortunately, this competitive bidding process can be relatively light touch.
Category 3 supports subsidies for accredited training to national standards in relation to the installation of energy efficiency and low carbon heating measures, and training for retrofit coordinators and retrofit professionals.
If you would like to discuss the Energy Usage Streamlined Subsidy Scheme, please get in touch with one of our subsidy control specialists, Bethan Lloyd or Edward Reynolds.
Publications & Guidance
NIC and CCC call for urgent action to protect infrastructure from climate risks
National Infrastructure Commission | 27 April 2023
The National Infrastructure Commission and Climate Change Committee have written jointly to government urging ministers to take steps to improve the resilience of key infrastructure services to the effects of climate change.
International Energy Agency | 26 April 2023
Global sales of electric cars are set to surge to yet another record this year, expanding their share of the overall car market to close to one-fifth and leading a major transformation of the auto industry that has implications for the energy sector, especially oil.
The new edition of the IEA’s annual Global Electric Vehicle Outlook shows that more than ten million electric cars were sold worldwide in 2022 and that sales are expected to grow by another 35% this year to reach 14 million. This explosive growth means electric cars’ share of the overall car market has risen from around 4% in 2020 to 14% in 2022 and is set to increase further to 18% this year, based on the latest IEA projections.
CIPFA report to help public bodies develop sustainability reporting strategies
Chartered Institute of Public Finance and Accountancy | 24 April 2023
CIPFA has published a major report on sustainability reporting in the public sector providing guidance, best practice and advice to help public sector bodies prepare sustainability reports and disclose their sustainability impacts.
“Public sector sustainability reporting: time to step it up”, authored by accounting professor Carol Adams, examines the barriers to widespread adoption of sustainability reporting in the public sector. In the private sector the practice is already common.
Government emissions slashed to deliver millions to public purse
Cabinet Office | 21 April 2023
New figures, released in the government’s annual State of the Estate Report, show that overall emissions from the government have fallen by 35% compared to 2017-18 levels, with emissions from buildings down by 10%.
Moving on: greener travel for the UK
Green Alliance | 20 April 2023
Transport is the highest emitting sector in the UK, despite the rise in electric vehicles (EVs). To reduce the number of miles driven by car, we must travel differently, using more public transport, walking and cycling. This move away from cars to other types of transport is known as ‘modal shift’. To achieve this, it is important to understand the intersections of the UK’s transport system, how the public responds to changes in policy and what the costs to the government or the public might be.
The Green Alliance worked with academics at the University of Cardiff to build a ‘modal shift model’ which allowed them to experiment with combinations of measures to reduce car miles driven, such as improving public transport or changing speed limits. Its outputs show the impact a mix of policies could have, the cost to the government and users, and the revenue the government might expect to gain. Using this, they developed a set of scenarios, each designed to cut total UK car mileage by 25%. This report showcases alternative transport futures decision makers could opt for to meet climate targets and the considerations to be taken into account when designing modal shift policies.
Delivering net zero, climate resilience and growth
National Infrastructure Commission | 18 April 2023
In February 2023, the government asked the Commission to undertake a study on the infrastructure planning system and the role of National Policy Statements. The full terms of reference for the study can be found on gov.uk. This report sets out the Commission’s recommendations on how to improve the consenting process for Nationally Significant Infrastructure Projects (NSIPs). Over the course of the study the Commission has sought input from a range of stakeholders and this report provides an independent, expert assessment of what could be done to strengthen and improve the current system both in the short and longer term.
Global Electricity Review 2023
Ember | 12 April 2023
Ember’s fourth annual Global Electricity Review aims to provide the most transparent and up-to-date overview of changes in global electricity generation in 2022 and a realistic summary of how “on track” the electricity transition is for limiting global heating to 1.5°C.
News
UK Government to face High Court challenge over oil and gas expansion plans
edie | 26 April 2023
Uplift and Greenpeace are challenging the decision, made under Liz Truss, on the basis that the emissions generated from the consented projects would undermine the UK’s legally binding commitment to net-zero by 2050 and its signing of the UN’s Paris Agreement on climate change.
Sadiq Khan embarks on ULEZ expansion counter-offensive
AirQualityNews | 26 April 2023
Embattled by critics of his ULEZ expansion plans, the Mayor of London has begun fighting back with a succession of science-backed pronouncements that all seem to confirm the city’s need for an expanded Ultra Low Emission Zone.
Oxford’s unique EV infrastructure procurement platform
UK100 | 25 April 2023
Oxford City Council has simplified procurement of electric-vehicle (EV) infrastructure with a platform available free of charge to the UK public sector. Local authorities who use Oxford’s ‘EV dynamic purchasing system’ (DPS) avoid having to tie up resources in this new and complex market. Since its launch in 2021, it has helped procure over £23m. That equates to about 4,000 charge points to support the UK’s target of at least 300,000 by 2030.
Guidance on business support to reduce area wide carbon footprint
Local Government Association | 21 April 2023
The London Borough of Barking and Dagenham declared a climate emergency in 2019 and committed to making the Council zero carbon by 2030, supporting the borough to do so by 2050.
Share the Warmth: Using behavioural insights to reduce energy usage among homeowners
Local Government Association | 14 April 2023
To effectively support homeowners in adopting energy-saving behaviours and reducing their bills, the LGA funded a consortium of nine local authorities from Kent and Medway and the NHS in collaboration with The Behaviouralist to develop an intervention that leveraged behavioural insights to encourage local residents to reduce energy usage at home.
Office for Environmental Protection | 13 April 2023
The Office for Environmental Protection (OEP) has been granted permission by the Supreme Court to intervene in the appeal of R (Finch) v Surrey County Council to highlight the importance of clarity in the law to promote good environmental decision-making.
The appeal concerns a judicial review of the grant of planning permission for new oil wells on a site in Surrey. The Supreme Court will consider whether Surrey County Council (SCC) acted lawfully by not requiring the development’s environmental impact assessment (EIA) to assess the impact of greenhouse gas emissions resulting from the future combustion of oil produced by the new oil wells. The OEP’s intervention is prompted by this failure or alleged failure of SCC to comply with environmental law.
OEP General Counsel, Peter Ashford, said: “Environmental impact assessment is so important for integrating the environment into planning decision-making. We are interested in this case because of the opportunity to clarify the law here to ensure proper decision-making that enhances environmental protection. We hope that the Supreme Court will take this opportunity, and will develop principles for determining the proper approach to the assessment of indirect effects under the EIA legislation.”
Nottingham's whole-city approach to delivering net zero
The MJ | 13 April 2023
Nottingham is staking a claim as the UK’s greenest Core City, having achieved a 58% reduction in carbon emissions per capita against a 2005 baseline.
Cumbria coal mine: High Court refuses to hear legal challenge, green groups vow further action
edie | 12 April 2023
The UK’s High Court has refused to hear a case against the Government’s decision to permit a new deep coal mine in Cumbria, tabled by environmental groups including Friends of the Earth.
£30m government boost to capture and store more renewable energy
Department for Energy Security and Net Zero | 12 April 2023
Cutting edge businesses, in locations including Scotland and Nottingham, are set to benefit from a share of £30m to be at the forefront of designing and testing innovative technology of the future that will modernise our energy system and store renewable energy for later use.
Delivering Value
The Government’s Announcement to Delay Implementation of the Liberty Protection Safeguards: What Does This Mean?
On 5 April 2023, the Government announced that it would be delaying the implementation of the Liberty Protection Safeguards (LPS) to replace the Deprivation of Liberty Safeguards (DoLS) “beyond the life of this Parliament”. We answer some key questions regarding this announcement below.
Will the LPS be implemented?
Unfortunately, it remains unclear at this point as the decision on whether to progress with the implementation of the LPS will need to be made by the new Government after the next general election. This is likely to be in late 2024 (at the latest early 2025).
When is the earliest the LPS could be implemented?
If, following the next general election, the new Government makes the decision to implement the LPS, we would not expect the implementation date to be before 2027.
Realistically, the earliest date for the new Government making a decision on the implementation for the LPS is likely to be early 2025. However, there would then need to be sufficient time to allow for any draft Code of Practice and accompanying regulations to be finalised and time for organisations to prepare and build up / train their staff teams and develop processes. Also, the Government has confirmed that those civil servants working on the LPS have been re-assigned, so this team would need to be re-established before being able to progress that work.
What should the priority for organisations now be with regards to the DoLS / LPS?
It seems clear that the DoLS are here to stay for at least another four years.
Consequently, local authorities, health bodies and care providers will need to have clear and robust process for managing the DoLS process and applications for Court authorisations that fall outside of the DoLS framework. Staff need to be well-trained to identify a deprivation of liberty, understand what steps need to be taken to authorise this and be familiar with the limits of Section 4B.
Please see The Government’s Announcement to Delay Implementation of the Liberty Protection Safeguards: What Does This Mean? | Bevan Brittan LLP for our full publication.
We regularly provide training sessions on the MCA and DoLS and we also offer a DoL streamline application fixed-fee service. If you would like further information please contact Hannah Taylor or Ruth Atkinson-Wilks.
Publications & Guidance
Department of Levelling Up, Housing and Communities | 17 May 2023
Information on local precepting authorities (town and parish councils, charter trustees and Temples) and the amount of Council Tax collected on their behalf by their billing authorities in England.
Nuffield Trust | 5 May 2023
Social care in England entered the pandemic in a fragile state. With much already written about the government’s response to the Covid-19 pandemic in the social care sector, our new report in collaboration with the Care Policy and Evaluation Centre analyses the structural and systemic factors that influenced that initial national response. Covid had far-reaching impacts on social care and exacerbated many longstanding issues. This work seeks to highlight progress and identify where action is needed to create a more resilient system.
House of Commons Library | 28 April 2023
Strikes have been taking place across the NHS in England. This briefing looks at Government pay offers, what unions are asking for and when strikes will happen.
Public spending during the Covid-19 pandemic
House of Commons Library | 26 April 2023
This briefing looks at the very high level of UK public spending on tackling the Covid-19 pandemic, including how the money was spent and where it came from.
Time to Act - roadmap to reform adult social care in England
Association of Directors of Adult Social Services | 26 April 2023
With waiting lists spiralling leaving many of us who are older or disabled without the care we need, carers burnt out and staff leaving, social care leaders warn “we’ve run out of road” to carry on like this as they publish a roadmap to transform adult social care in England.
Time to act: a roadmap to reform care and support in England, says that there’s a consensus on what sort of care and support system we need, but for decades no political or collective will to make it happen.
Trusts an integral part of school inspections
Ofsted | 25 April 2023
The new research finds that trusts are an important part of school inspection and have some involvement at each stage of the process. However, Ofsted’s legal remit only permits inspections to operate at an individual school level, limiting the extent to which inspectors can report on the work of the trust, and its influence. Read the full report here: ‘How multi-academy trusts are involved in school inspections report’.
Child Safeguarding Practice Review Panel | 20 April 2023
The Child Safeguarding Practice Review Panel has published recommendations to improve the care, welfare and outcomes for children with disabilities and complex health needs living in residential settings.
Last October, the panel published a review into very serious abuse to a significant number of children with disabilities and complex health needs at three residential special schools registered as children’s homes (Fullerton House, Wilsic Hall and Wheatley House, located in Doncaster and operated by the Hesley Group). Looking at the experiences of 108 children and young adults, it found a culture of abuse and harm, including evidence of physical abuse and violence, neglect, emotional abuse and sexual harm.
Delivery of support in domestic abuse safe accommodation: annual progress report 2021-22
Department of Levelling Up, Housing and Communities | 5 April 2023
An overview of outcomes across England of the first year’s delivery of the provision of support for victims of domestic abuse and their children in safe accommodation duties.
News
New plan to make it easier for patients to see their GP
The MJ | 8 May 2023
Action to make it easier for patients to contact their GP and end the 8:00am rush, with £240m given to practices across England to embrace latest technology.
Health services' concerns over council cuts
The MJ | 4 May 2023
Health services have voiced concerns over local government cost-cutting measures as both sectors grapple with constricted budgets.
Council staff respond to Sudan evacuation
The MJ | 4 May 2023
Councils have been urged to ‘apply maximum flexibility’ when UK nationals returning from Sudan present as homeless.
Councils ‘better-placed’ to deliver welfare spending than DWP
Public Finance | 28 April 2023
Better knowledge of local needs means councils could guarantee more value for money from welfare spending than the Department for Work and Pensions achieves, an authority leader has claimed.
Taxi licensing toughened up to protect passengers across England
Department for Transport | 27 April 2023
Councils in England mandated to use a national database that records taxi drivers who have had their licences removed for misconduct.
Record number of doctors and nurses in the NHS helping to cut waiting lists
Department of Health and Social Care | 27 April 2023
There are over 1.27 million full-time equivalent staff working in NHS trusts and commissioning bodies in England.
Prepayment meter customers urged to claim £160m in energy bill support
Department for Energy Security & Net Zero | 25 April 2023
Government calls on prepayment meter users to claim bills support by redeeming their Energy Bills Support Scheme vouchers.
Cyber attack led to data breach
The MJ | 21 April 2023
Capita has admitted data was stolen during a cyber attack that disrupted council services.
New ADCS President calls for “fundamental” regulatory review across children’s services
Local Government Lawyer | 20 April 2023
The incoming President of the Association of Directors of Children’s Services (ADCS) has welcomed the government’s implementation strategy for children’s social care reform, while calling for a “fundamental regulatory review”.
Law Commission invited to review legislation on social care for disabled children
Law Commission | 20 April 2023
The Child Safeguarding Practice Review Panel has published recommendations to improve the care, welfare and outcomes for children with disabilities and complex health needs living in residential settings.
London community leisure charity “poorly managed”, inquiry finds
The Charity Commission | 12 April 2023
The Charity Commission's statutory inquiry into Newham Community Leisure Trust has concluded, with the charity being wound up and one trustee disqualified.
Place & Growth
What is Biodiversity Net Gain and how will it impact you?
Biodiversity net gain (BNG) is a strategy to develop land and contribute to the recovery of nature. A BNG approach seeks to make a new development’s impact positive on the environment, making sure the habitat for wildlife is in a better state than it was before development. BNG is measured using the biodiversity metric.
From November 2023 mandatory BNG will apply to all new planning applications under the town and country planning regime in England that result in loss or degradation of habit (with some exceptions). It will apply to small sites from April 2024, the Department for Environment, Food and Rural Affairs (Defra) defines small sites as follows:
- For residential: where the number of dwellings is between one and nine inclusive on a site having an area of less than once hectare, or where the number of dwellings is not known, a site area of less than 0.5 hectares
- For non-residential: where the floor space is less than 1,000 square metres or where the site area is less than one hectare.
On 2 May 2023, Defra published guidance for England entitled “What can you count towards a development’s biodiversity net gain (BNG)”.
The guidance confirmed that if developers are creating or enhancing habitat as part of the development it may be counted towards BNG. This is still the case even if the habitat that is created is required to:
- comply with statutory obligations or policy, for example green infrastructure, environmental impact assessment compensation, or sustainable drainage
- provide river basin management plan (RBMP) mitigation and enhancement measures (however, note at least 10% of BNG should come through separate activities for RBMP mitigation, no separate activities are required for RBMP enhancement)
- provide mitigation or compensation for protected species or sites.
The guidance note further confirms that off-site mitigation and compensation for protected sites and species may also count towards BNG, but at least 10% of BNG should come through other activities for example on-site habitat creation and enhancement.
Any off-site units need to be legally secured for at least 30 years and registered before they can count towards BNG. Therefore, forward planning will be required to ensure any offsite units are available, including the creation of habitat banks which are sites created in advance, prior to any loss occurring.
The guidance further states that the following do not count towards BNG: activities if already required for restocking conditions relating to a tree felling licence or restocking notice, marine licensing, and remediation under the environmental damage regulations.
Further guidance from Defra is expected.
Legislation
Government has laid draft affirmative regulations to implement the first phase of the Responsible Actors Scheme. Eligible developers who do not join and comply with the Scheme conditions will have planning and building control prohibitions imposed on them. The Building Safety (Responsible Actors Scheme and Prohibitions) Regulations 2023
Publications & Guidance
The Everett Review of Britain’s Housing Sustainability
British Property Federation | 2 May 2023
A new independent review has found that building homes with straw could enable the UK to meet its housing delivery targets while mitigating climate change.
Mapping access to nature in England
Wildlife and Countryside Link | 1 May 2023
Lack of access to thriving natural spaces such as parks, woodland, rivers and wetlands, which are vital for health and wellbeing, is an issue across the country, across income and ethnic groups and in both urban and rural communities.
Our mapping research, utilising official datasets, reveals a number of key findings and trends, which are essential to consider in the context of the Government’s commitment to deliver access to nature for all within 15 minutes-walk of home.
April 2023 – update on government’s work to improve the quality of social housing
Department for Levelling Up, Housing and Communities | 28 April 2023
The government has a programme of reform to improve the quality of social housing. Every month, progress on our commitments will be shared on these pages, as part of our commitment to respond to the tragic death of two year old Awaab Ishak.
High stakes: gambling reform for the digital age
Department for Culture, Media & Sport | 27 April 2023
This white paper sets out the government’s plan for reform of gambling regulation following the review of the Gambling Act 2005.
Social housing lettings in England, April 2021 to March 2022
Department for Levelling Up, Housing and Communities | 13 April 2023
Statistics on new social housing lettings in England in 2021/22 by local authorities and private registered providers, covering tenancies and tenants.
News
Compulsory purchase changes a 'slippery slope'
The MJ | 4 May 2023
A row has broken out in the House of Lords over proposed changes to compulsory purchase orders (CPOs).
Government's planning proposals will 'erode local democracy'
The MJ | 2 May 2023
A new poll has revealed 82% of councillors believe Government proposals for National Development Management Policies (NDMPs) will erode local democracy.
‘Cakeism’ hurting levelling up
Public Finance | 28 April 2023
The government’s flagship ‘levelling up’ policy has so far not effectively funded some of the country’s most deprived areas because of tensions within its approach, a group of researchers has said.
Dame Carolyn McCall appointed to the Levelling Up Advisory Council
Department for Levelling Up, Housing and Communities | 28 April 2023
Dame Carolyn McCall, chief executive of ITV plc, has been appointed as a member of the government’s Levelling Up Advisory Council.
Asylum seekers could be left in 'limbo' by Bill
The MJ | 27 April 2023
Ministers risk leaving vulnerable asylum seekers in ‘limbo’ and reliant on scarce council funding unless amendments are made to the Illegal Migration Bill, experts have warned.
Councils in poorest areas hit by cuts nearly three times the richest
Public Finance | 27 April 2023
Local authorities in the most deprived areas of England have faced government cuts far outstripping those faced by the richest areas – a situation one council leader said needs to be reversed “for ‘levelling up’ to mean anything”.
Warning that planning fees increase comes too late
Local Government Chronicle | 25 April 2023
The government’s proposed planning fees increase could be too late to stop departments from making redundancies, senior sector figures have said.
Adults’ activity levels in England bounce back to pre-pandemic levels
Sports England | 20 April 2023
The number of people playing sport and taking part in physical activity has returned to where it was before Covid-19, but inequalities remain. For LGA’s reaction, please see: Adult activity levels bouncing back: LGA statement on Sport England report
‘Severe consequences’ for cladding companies who refuse to remediate, government warns investors
Department for Levelling Up, Housing and Communities | 20 April 2023
Housing Secretary warns cladding shareholders of “severe consequences” for manufacturers if they do not bring forward comprehensive remediation package.
Scale of exploitation of refugees unrecorded
The MJ | 19 April 2023
The Department for Levelling Up, Housing and Communities (DLUHC) has no figures tracking the scale of abuse and exploitation of Homes for Ukraine refugees, it has been forced to admit.
Plans for new smart motorways cancelled
Department for Transport | 17 April 2023
The government has announced that all plans for new smart motorways have been cancelled.
This will mean that the 11 schemes already paused from the second Road Investment Strategy (2020 to 2025) and the three earmarked for construction during the third Road Investment Strategy (2025 to 2030) will be removed from the government’s road-building plans in recognition of the current lack of public confidence felt by drivers and cost pressures.
Department for Levelling Up, Housing and Communities | 19 April 2023
Social housing tenants will be empowered to hold their landlords to account as part of a new government funded training scheme. From free advice on addressing damp and mould to webinars on how to complain about anti-social behaviour, the training programme will share information like that handed out by shows such as ‘Watchdog’ or ‘Rip Off Britain’, offering tips and advice so tenants know their rights and how to access the Housing Ombudsman service.
Research on tenancy fraud estimates 148,000 homes fraudulently occupied
Local Government Lawyer | 21 April 2023
A new report by the Tenancy Fraud Forum (TFF) and Fraud Advisory Panel (FAP) has claimed that 148,000 social housing homes in England are fraudulently occupied.
Governance & Reorganisation
Political change – what does this mean for your Governance?
The recent round of local elections have seen widespread changes in the political make-up of many local authorities. These elections have seen the Green party win a majority control of a Council for the first time ever in the UK, and many local authorities are now in a position where there is no overall control.
Whilst this is not of course anything new in the history of local government, such changes can be a catalyst for compromise between politicians, and can result in constitution reviews and rewrites, or even changes in governance structures, including moves from an executive form of governance to a committee system, and vice versa.
Changes in governance should not of course be taken lightly. Indeed where a resolution is passed to change the form of governance, a local authority cannot pass another such resolution for a period of five years, unless that resolution is approved in a referendum. Once a resolution is passed, the new form of governance will come into operation at the next annual meeting, or at a later annual meeting if this is specified in the resolution.
So what does this mean? In short, it means a significant amount of work will be required in order for the change to be effected. Not only will the governance and decision making structure of the authority change substantially, the authority’s constitution will also need to reflect the new structures, meaning that it will often need a complete re-write.
Where such changes are afoot, it is important to put a clear and realistic timetable in place from the outset, and to ensure that all relevant stakeholders are able to input into the process in a managed and proportionate way.
We are regularly instructed to provide advice and assistance to local authorities considering or undergoing changes in governance, or in relation to reviews and rewrites of constitutions and other governance frameworks.
For help and advice on governance or reorganisation matters, please contact David Kitson, Philip McCourt, or Victoria Barman.
Legislation
This Act makes provision for ensuring the secrecy of ballots cast in polling stations at elections, and for connected purposes. This Act came into force partly on 2 May 2023, and comes into force fully on such day or days as the Secretary of State may, by Regulations, appoint.
Publications & Guidance
Supporting transition to ‘no overall control’ – a 30-step framework
Local Government Association | 2 May 2023
Developed by Dr Stephanie Snape, this 30-step framework explores the role of the chief executive in supporting a transition to 'no overall control' (NOC) and successful NOC working.
UK Parliament | 26 April 2023
Clive Betts, Chair of the Levelling Up, Housing and Communities (LUHC) Committee has today written to John Pullinger, Chair of the Electoral Commission, to raise concerns about the accuracy of data due to be collected on voter turnout at the upcoming local elections on 4 May 2023.
Toolkit: Partnership working with the voluntary and community sector
Local Government Association | 26 April 2023
Strong relationships between councils and the local Voluntary and Community Sector (VCS) are the bedrock of successful places. This toolkit aims to support councils on this journey. It builds upon research commissioned by the Local Government Association and conducted by Locality, into the state of strategic relationships between councils and their local voluntary and community sector.
Performance management guide for councillors
Local Government Association | 26 April 2023
This guide contains ideas, tools and approaches to help councillors manage performance effectively, in collaboration with local authority officers.
Technical Guidance on the Public Sector Equality Duty: England
Equality and Human Rights Commission | 20 April 2023
The Equality and Human Rights Commission has issued updated its technical guidance on the operation of the public sector equality duty in England, with examples from case law on how public authorities should implement it.
The use of call-in: guidance for English authorities
Centre for Governance and Scrutiny | 17 April 2023
This guide covers the law relating to call-in for English local authorities only. Call-in is also a feature of the governance framework for Welsh authorities, but the legal basis is different. Welsh members and officers should have regard to separate statutory guidance produced by the Welsh Government.
Reviewing schemes of delegation: guidance for English authorities
Centre for Governance and Scrutiny | 17 April 2023
This guide covers only the delegation of decisions that relate to the Council’s budget and policy framework. There are other forms of “delegated decision” which do not relate to this framework, and which are not covered here. For example, the “delegated authority” by which a young person’s carer might make decisions about that person’s welfare.
The review and redrafting of constitutions: guidance for English authorities
Centre for Governance and Scrutiny | 17 April 2023
The intention of this material is not to set out “best practice” but:
- to introduce key features of modern council constitutions, and the governance framework, to an audience which might not be specialists in those areas;
- to provide officers with responsibility for governance, with general advice to assist them in digging into the technical detail of their constitutional material;
- to ensure that, between members and officers, material exists which gives everyone a common understanding of what good governance is, what its key components are (and what the usual components of a council constitutions are), and to introduce the kinds of technical issues that usually need to be addressed to support it.
News
Elections watchdog to conduct analysis of implementation of voter ID
Local Government Lawyer | 5 May 2023
The Electoral Commission has revealed it will conduct a “full report” on the May 2023 local elections, which will analyse the impact of the voter ID requirement.
Voters reminded to bring photo identification to polling booth
Department for Levelling Up, Housing and Communities | 2 May 2023
The government is reminding people to bring their photo identification with them to vote in local elections.
Warning against ‘knee-jerk reaction’ over Oflog plans
The MJ | 27 April 2023
Local government finance expert Rob Whiteman has urged the sector to ‘not be defensive’ as ministers plan their new watchdog.
4.5% of voters without ID apply for certificate
The MJ | 27 April 2023
Less than 5% of people thought to lack valid ID have applied for a voter authority certificate ahead of next week’s elections.
LGA: No abuse at local elections
Local Government Association | 26 April 2023
The Local Government Association (LGA) has joined forces with the Jo Cox Foundation to call for people to show respect and civility towards candidates standing in and officers running the local elections in much of England on 4 May.
Government needs to better understand faith, independent review claims
Department for Levelling Up, Housing and Communities | 26 April 2023
A landmark review into faith engagement has found the government needs to recognise faith groups as a force for good.
Fiscal Devolution: why we need it and how to make it work
New Local | 26 April 2023
Fiscal devolution is coming out of the policy wilderness. Despite localised revenue-raising powers being the norm in many countries, it has long been viewed as far too radical in the UK. But now, policymakers are beginning to recognise the value of letting local areas grow their own economies, rather than take a begging bowl to Westminster.
But the term needs demystifying, and the various ways to do it need a thorough examination. In the latest in our New Thinking series, Jessica Studdert explains what fiscal devolution is, busts myths that it will lead to higher taxes, explores different ways to do it, and recommends how to make it happen.
Local Government Lawyer | 21 April 2023
The Supreme Court has refused the Good Law Project permission to appeal the rejection of its judicial review challenge over the use of private communication platforms such as WhatsApp to conduct government business.
Local Government Lawyer | 21 April 2023
An independent review of the Disclosure and Barring Regime has recommended a mandatory enhanced criminal record check for all councillors in unitary and upper tier authorities who are being considered for appointment to “any committee involved in decisions on the provisions of children’s services or services for vulnerable adults”.
One in 10 voters confused over ID rules, poll finds
The MJ | 21 April 2023
Voters are confused over new ID rules just days before local government elections, researchers have warned.
Government urges public to check their photo identification ahead of polls
Department for Levelling Up, Housing and Communities | 20 April 2023
The government is encouraging people to check that they have accepted photo identification ahead of local elections and apply for a free voter authority certificate if needed.
Government launches new cyber security measures to tackle ever growing
Cabinet Office | 20 April 2023
New and enhanced cyber security measures will better protect the UK government’s IT systems, which run key services for the public, from growing cyber threats.
Local Government Lawyer | 20 April 2023
The Local Government Association has called on the Government to amend its Online Safety Bill to include stronger provisions that protect councillors from online abuse.
The MJ | 18 April 2023
Fresh doubts have been raised about the recording of people turned away from polling stations due to voter ID.
Voter ID certificate system crashed last week
Local Government Chronicle | 18 April 2023
Electoral administrators are struggling with a system that lacks functionality and even crashed last week, MPs heard yesterday. Meanwhile political parties are encouraging voters to dodge new ID requirements by applying for postal votes.
Cornish push for nation status defeated
The MJ | 18 April 2023
Calls for Cornwall Council to pursue devolution on the scale of Wales or Scotland have been narrowly defeated by councillors.
Contract Management
Contract management under the Procurement Bill 2022
The existing Public Contracts Regulations 2015 (PCR) are mainly concerned with the procurement and award process and only contain very limited obligations around the rest of the contract lifecycle (such as modifications to existing contracts). In its publication “Transforming Public Procurement: our transparency ambition” published in June last year, the Cabinet Office stated that making information on the actual costs and performance of public contracts available to the public is a key part of its transparency agenda.
The provisions covering the life-cycle of the contract are set out in Chapter 5 in Sections 62 – 73 and Schedule 8. Sections 50 and 51 relate to the tender and award stage rather than the contract management stage, but have a key interface with the contract management side.
Key changes for the life of the contract are focused on:
- publication of information throughout the life of the contract – including modifications and details of payments made (and, for contracts with a value over £2m, the obligation to publish copies of the contract and at least three KPI’s, as well as ongoing performance against those KPIs)
- ongoing performance monitoring – with annual reviews and obligation to publish information about the review, together with obligations to publish information where a supplier is in breach of contract;
- implied terms to deal with invoicing and payment issues – including statutory implied terms that flow down through the supply chain in relation to electronic invoicing, payment terms, payments compliance notices and payment terms in sub contracts
- implied term giving a right of termination – building on the implied right to terminate the contract included in the PCR at 73(1) to include where the contract has been awarded or modified in material breach of the provisions in the Bill, or where the supplier or subcontractors are excluded or excludable.
Implementing these requirements successfully will require joint effort and buy-in from both the procurement and contract management teams within contracting authorities. This is particularly the case for provisions that start life in the procurement team but in practice will be implemented by the contract management team, for example monitoring of performance.
For more information please contact Emily Heard or Jessica Boardman.
Publications & Guidance
PPN 02/23: Tackling Modern Slavery in Government Supply Chains
Cabinet Office | 27 April 2023
New selection criteria guidance has been published by the Cabinet Office following the publication of PPN 03/23: Standard Selection Questionnaire. This can be found in Section 3 of the guidance document.
News
Partnership working between councils and their communities - a case study
Local Government Association | 16 May 2023
Brentwood Borough Council and Rochford District Council formalised their strategic partnership in February 2022 following a six-month trial period with a joint chief executive. The agreement sees each council retain its sovereignty and independent governance while exploring meaningful co-working opportunities to use their combined resources for the good of local residents. The case study looks at the approach to collaborative working and how this works when the councils are just over 20 miles apart and do not share a boundary.
Commercial contracts: the Supreme Court in Barton v Morris
Local Government Lawyer | 28 April 2023
A Supreme Court ruling has emphasised the importance of preparing for every eventuality in commercial contracts, write Judith Hopper and Louise Ducasse.
Council workers jailed over £1.5m false repair contracts fraud
Local Government Lawyer | 28 April 2023
Two council workers who defrauded Greenwich Council of £1.5m through bogus lift repair contracts have been sentenced to five years and three and a half years, respectively. Stephen Johnson of Pinewood Avenue, Sidcup, and Stuart Wickham, of Briar Road, Bexley, were found guilty last month of conspiracy to commit fraud by abuse of position at Woolwich Crown Court. The pair defrauded the Royal Borough by raising unnecessary lift repairs that were completed by an external contractor who invoiced the council for the repairs.
Rowley orders Birmingham finance review over chaotic IT contract
The MJ | 25 April 2023
A Government-imposed governance review of Birmingham City Council has been expanded after massive failures in its accounts IT system emerged.
Disputes & Regulatory Support
Section 117 Aftercare: Is your organisation aware of the recent changes to determining health responsibility?
With the Supreme Court having recently heard the Worcestershire appeal on local authority responsibility for section 117 aftercare, we consider the current legal framework for health responsibility.
New regulations for determining Integrated Care Board (ICB) responsibility for section 117 Mental Health Act aftercare came into force on 1 July 2022. Indeed, it is curious that these regulations have been in force for nearly a year now but very few ICBs and local authorities appear to be aware of them and their implications for determining section 117 aftercare responsibility.
But the implications are worth knowing about. By way of example, these regulations move the basis of section 117 aftercare health responsibility from ordinary residence to GP registration and appear to amount to a wholesale shift in responsibility based on where a person was registered with GP on 1 July 2023 (for individuals already eligible for section 117 aftercare or detained in hospital under a qualifying detention as at that date). The regulations also remove the split between commissioning and funding responsibility that was put in place by the 2020 Who Pays guidance (albeit not for all cases!).
In time, the regulations are likely to make determining responsibility simpler; however, for persons who were eligible for section 117 or detained under the Mental Health Act on 1 July 2022, determining responsibility will likely be a tricky exercise.
We have put together a training package to provide commissioners with an up to date overview of the current section 117 legal framework for health and social care. For further information on this training package, please see here.
For further information or advice on section 117 responsibility or to book a training session please contact Anna Davies,or Ruth Atkinson-Wilks.
Publications & Guidance
Publication of the Public Law Working Group Supervision Order Report
Courts and Tribunals Judiciary | 24 April 2023
The President of the Family Division, Sir Andrew McFarlane, has welcomed and endorsed the publication of the President’s Public Law Working Group (PLWG) Supervision Order Report (April 2023).
News
Council defeats High Court challenge to enforcement notice
Local Government Lawyer | 4 May 2023
Luton Borough Council has defeated a developer’s challenge to a planning enforcement notice in the High Court.
Council leader hits out after being cleared of electoral malpractice
Local Government Lawyer | 3 May 2023
The Leader of Warrington Borough Council, Cllr Russ Bowden, has been unanimously cleared this week (2 May) of allegations of electoral malpractice.
Neighbourhood forum crowd funds legal challenge to adoption by council of Local Plan
Local Government Lawyer | 3 May 2023
A neighbourhood planning forum has raised more than £11,000 in a bid to fund an application to the High Court for permission for a judicial review over Calderdale Council’s decision to adopt its Local Plan.
School set to take Ofsted to court over inspection
Local Government Lawyer | 3 May 2023
A primary school has said it is in the “initial stages” of bringing legal proceedings against Ofsted over the regulator’s decision to give it an “inadequate” overall rating.
In a letter to parents and carers, Queen Emma Primary School in Cambridge said that it “totally refutes” the findings of the Ofsted report, which concluded that the school’s safeguarding arrangements were “ineffective”.
Council agrees Grenfell compensation
The MJ | 2 May 2023
Kensington & Chelsea LBC is among the defendants that have agreed a £150m civil compensation settlement for victims of the Grenfell tragedy.
Family members taking on vulnerable children to receive better legal support
Ministry of Justice | 1 May 2023
Extra £6m to support up to 2,000 more people in complex family cases.
Council launches judicial review over asylum plan
The MJ | 28 April 2023
West Lindsey DC has launched judicial review proceedings against Home Office plans to house asylum seekers at an airbase earmarked for a £300m regeneration scheme.
Local Government Lawyer | 27 April 2023
A High Court judge has rejected a judicial review challenge to the Secretary of State for Health and Social Care’s decision not to make regulations for appeals against local authority decisions under Part 1 of the Care Act 2014.
Mr Justice Julian Knowles heard an application for judicial review brought by HL, who said the Secretary of State should have made regulations pursuant to s72 of the Act to make provision for appeals by individuals.
Group considers legal action against council over introduction of beach metal detecting ban
Local Government Lawyer | 25 April 2023
North-East Lincolnshire Council has introduced a ban with the threat of £100 fines for anyone using a metal detector in the Cleethorpes beach area, a move which the National Council for Metal Detecting (NCMD) wants to overturn.
District loses bid to stop placement of asylum seekers at former RAF base
Local Government Chronicle | 24 April 2023
Braintree DC lost its High Court bid to prevent government plans to house asylum seekers at a former RAF base.
Court of Appeal quashes council direction requiring travellers to leave site
Local Government Lawyer | 21 April 2023
Thanet District Council failed to give notice to a Pavee Traveller and her family that it had withdrawn consent for them to stay on land at Ramsgate Port in Kent, before issuing a direction demanding they leave, the Court of Appeal has ruled.
Judgment reserved in council asylum seeker airfield injunction case
Local Government Lawyer | 20 April 2023
A High Court judge has reserved judgment following a hearing yesterday (19 April) regarding Braintree District Council's application for an injunction against Home Office proposals to accommodate asylum seekers at Wethersfield Airfield.
Local Government Lawyer | 20 April 2023
Some 977 children have been the subject of applications for authorisation of a deprivation of liberty (DoL) since the launch in July 2022 of the national DoL court by the President of the Family Division.
Local Government Lawyer | 20 April 2023
Bakery chain Greggs is seeking mediation over a licensing dispute with Westminster City Council ahead of court action due next month.
London borough defeats legal challenge to use of remote licensing hearings
Local Government Lawyer | 20 April 2023
A Magistrates' Court has ruled that neither the Licensing Act 2003 nor the Licensing Act (Hearings) Regulations 2005 require hearings to be held in a physical "place", in a case that challenged the London Borough of Lewisham's use of a remote hearing procedure to revoke a premises' license.
Legal threat pushes Devon CC to pause care cuts
The MJ | 17 April 2023
Devon CC will pause its plans to cut adult day and respite services after the mental health charity Mencap threatened to take legal action.
Resources Library
All Bevan Brittan articles and news
Supreme Court is to hear Worcestershire Case on local authority responsibility for Section 117 aftercare on 27 April 2023
The power to withdraw under scrutiny in the Court of Appeal
Squaring the Circle: What steps can a local authority take to ensure a lawful deprivation of liberty in an unregistered children's home in England for children under 16?
The Government’s Announcement to Delay Implementation of the Liberty Protection Safeguards: What Does This Mean?
Events
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8 June, 12:30–1:30pm
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14 June, 12:30–1:30pm
What is the inherent jurisdiction for vulnerable adults and when might it apply?
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22 June, 12:30–1:30pm
Eating disorders and disordered eating: treating the body and the mind
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11 July, 12:30–1:30pm
Children and Young People: Placement and Restrictive Support Packages
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Reluctant Discharges from and Ending Placements in Health and Social Care settings
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