28/11/2023
Welcome to the November edition of LA View – a monthly update summarising recent Government publications, legislation, cases and other developments relevant to those involved in the local authority sector. This will be our last edition for 2023, and we will return in January 2024.
LA Spotlight
Equal Pay
We have seen a lot of challenges, union activity and commentary in relation to equal pay within the sector over recent months and it is not likely to quieten down any time soon, especially in light of the current squeeze on household finances.
This is clearly an area under the spotlight with local authorities feeling the pressure of increased scrutiny of their pay arrangements. In particular we are seeing claims and challenges against local authorities who have implemented single status and job evaluation schemes (JES), thinking they had taken adequate steps to mitigate future equal pay risk and liability in doing so.
We know, however, that equal pay liability can persist even in these cases and it is absolutely imperative that local authorities are alive to this risk and do not “take their eye of the ball” having implemented their pay and grading and JES.
In this context, the risk is of equal pay claims where employees claim that the JES is discriminatory or "otherwise unreliable" and is not therefore an absolute defence to an equal pay claim. This means that the local authority will need to evidence a “material factor defence” (ie. a good, gender neutral, reason for the difference in pay) if it is to avoid liability.
Another risk is of “work rated as equivalent” claims where a claimant’s role has been given an equivalent rating to a comparator role under a JES but the pay terms are nevertheless not equal in some respect.
To avoid finding themselves on the wrong side of equal pay law, local authorities must ensure the integrity of their pay and grading arrangements and JES is maintained. We recommend councils take active steps to consider any equal pay risk areas and pro-actively address any issues uncovered, including ensuring appropriate systems and checks to regularly assess and mitigate future risk.
The Bevan Brittan team supports authorities across the country in relation to equal pay issues. If you want to find out more or you have concerns about the risk of equal pay claims against your local authority, please do contact Sarah Lamont, Rachel Newman, Anne Palmer or Charlotte Rose.
You may also be interested in attending the equal pay course we are running with Lawyers in Local Government on 12 December 2023.
Net Zero
The Energy Act 2023 becomes law
The Energy Act 2023, which received Royal assent and became law on the 26 October 2023, marks a pivotal moment in the United Kingdom’s commitment to shaping a sustainable and resilient energy future. The Act looks to lay the foundation for the UK to develop an energy system fit for delivering net zero in the most efficient and cost-effective way.
There is a lot of content to digest in the Act and we will be delving deeper into this in the coming weeks and months. Some of the key aspects for local authorities to note include:
- Carbon Capture and Storage (CCS): The Act places a significant focus on carbon capture and storage as a means to mitigate emissions from industrial processes by creating a new regulatory and licensing regime and a framework for provision of financial support.
- Heat networks: The Act introduce a number of changes regarding heat networks, including the creation of a new regulatory role for Ofgem, a framework to establish heat network zoning, and a mechanism to grant new powers to heat network operators (eg. regarding land consents and planning permission) to make it easier and quicker to deliver projects.
- Hydrogen projects: The Act provides a mechanism to provide new government funding for low-carbon hydrogen projects and introduces a framework regarding the production, transport and storage of hydrogen.
The Energy Act 2023 sets a bold agenda for the UK’s energy future, and local authorities are at the forefront of turning these ambitions into tangible outcomes. By embracing renewable energy, decentralizing energy systems, and supporting CCS initiatives, local authorities can play a transformative role in achieving a sustainable and resilient energy landscape.
If you would like to know how Bevan Brittan could help in understanding the impact and opportunities under the Energy Act, please do get in touch with one of our Energy specialists Nadeem Arshad, Nathan Bradberry or Rupert Lugg.
Legislation
The Public Charge Point Regulations 2023
These Regulations, passed on 24 October, introduce requirements to improve the experience consumers have when using electric vehicle public charge points. The Regulations will require contactless payment, payment roaming and a standard pricing metric of pence per kilowatt hour. The instrument will also put in place a 99% reliability requirement for rapid public charge points and ensures that charge point operators make data on their charge points available which will assist consumers in locating the right charge points for their needs. These changes are required to boost confidence and ensure a consistent experience. Read the government’s press release here: New laws to make charging an electric vehicle easier and quicker.
Publications & Guidance
Green Finance Institute | 1 November 2023
The Green Finance Institute (GFI) has published its Local Climate Bonds (LCB) Toolkit to support local authorities seeking to unlock a potential £3bn in green community municipal investment opportunities which will help deliver their net zero mission.
Council Climate Action Scorecards
Climate Emergency UK | 18 October 2023
Climate Emergency UK released the Council Climate Action Scorecards for 2023.
Climate Emergency UK have assessed all UK councils on the actions they've taken towards net zero. The Scorecard assessment consists of 91 questions or less, depending on council type, across seven different sections – building & heating, transport, planning & land use, governance & finance, biodiversity, collaboration & engagement and lastly, waste reduction & food. Each council was marked against these criteria and given a right to reply before the scores underwent a final audit. This work was completed between January and August 2023.
Air quality: policies, proposals and concerns
House of Commons Library | 10 October 2023
A briefing on evolving air quality policies and legislation across the UK, targets, statistics and health and inequality concerns.
UKGBC develops the first roadmap for climate change resilience in the UK built environment
UK Green Building Council | 6 October 2023
The UK Green Building Council (UKGBC) is developing a roadmap to support achieving a climate resilient built environment by 2050. For the first time, an evidence-based pathway will clearly map how the built environment should adapt to and be prepared for a changing climate – including protecting people, and the buildings, communities, towns and cities we inhabit, from the impacts.
Heat GB: Calculating the network costs for low carbon heating
Citizens Advice | 6 October 2023
28 million homes will need to be using low carbon heating systems by 2050 in order to meet net zero targets, according to research conducted by Citizens Advice.
Department for Transport | 2 October 2023
The plan for drivers sets out how government is working to improve the experience of driving and services provided for motorists.
It focuses on issues we know matter to drivers, including:
- smoother journeys
- stopping unfair enforcement
- easier parking
- cracking down on inconsiderate driving
- helping the transition to zero emission driving
The plan includes a list of actions that government will pursue with local authorities and others to ensure drivers get a fair deal alongside other road users.
News
Environmental principles duty comes into force
Department for Environment, Food & Rural Affairs | 1 November 2023
Under the duty set out in the Environment Act 2021, ministers and policy makers must consider the environmental impact of new policies.
Council leaders call on Government to back local climate action
Local Government Association | 24 October 2023
Councils have jointly written to the Secretary of State for Energy and Net Zero, Claire Coutinho MP, calling for a change of approach in delivering net zero.
Heat pump grants increased by 50%
Department for Energy Security and Net Zero | 23 October 2023
Homes can get £7,500 to install a heat pump, meaning they can be cheaper than gas boilers, thanks to one of the most generous schemes in Europe.
Revealed: £16bn in local government pensions fuelling climate crisis
Friends of the Earth | 23 October 2023
£16bn of the Local Government Pension Scheme is invested in the fossil fuel industry, according to new analysis by Platform and Friends of the Earth.
Simpler recycling collections and tougher regulation to reform waste system
Department for Environment, Food & Rural Affairs | 21 October 2023
Reforms to household and business bin collections and a crackdown on unscrupulous waste carriers will boost recycling rates and protect the environment. Read LGA’s response: LGA statement on simpler recycling collections announcement
The #Carbon Bubble – Engaging with residents around Climate Change | Local Government Association
Local Government Association | 20 October 2023
A giant orange inflatable #CarbonBubble sparked positive conversations on the streets of Staffordshire this summer. Its aim – encouraging people to talk about climate change and understand how they can reduce their carbon footprint.
Families to cut bills with energy saving tips and support for most vulnerable
Department for Energy Security and Net Zero | 16 October 2023
Campaign launches to offer new energy saving tips for families, alongside £150 in Warm Home Discount support for the most vulnerable.
Government sets out next steps for putting biodiversity net gain on statutory footing
Local Government Lawyer | 12 October 2023
The Government has confirmed biodiversity net gain guidance will be issued in November.
CCC assessment of recent announcements and developments on Net Zero
Climate Change Committee | 12 October 2023
Professor Piers Forster, Chair of the Climate Change Committee, said: “In June, the Climate Change Committee expressed concerns to Parliament about the pace of change required to meet the UK’s climate goals over the 2030s. Since then, there have been important climate announcements from Government, including the Prime Minister’s speech on 20 September. As promised, the Committee have run the numbers.”
Department for Energy Security and Net Zero | 10 October 2023
Public sector organisations can now bid for a share of £230m to help make low-carbon energy upgrades to their buildings.
We have a date in court with the Government to demand honesty about net zero
Good Law Project | 6 October 2023
“The Government is withholding vital information from the public about its net zero plans”, says Good Law Project. Good Law Project now going to the High Court in February with Friends of the Earth and ClientEarth to demand transparency.
Chris Packham legal challenge to Prime Minister over axing of timetable on vehicles and boilers
Leigh Day | 5 October 2023
Naturalist and environmental campaigner Chris Packham CBE is set to legally challenge Prime Minister Rishi Sunak’s decision to tear up the Government’s timetable to phase out motor vehicles and gas boilers to keep the UK on track to meet Net Zero by 2050.
Delivering Value
ZEBRA 2 Funding – Subsidy control implications
The deadline for applications for funding from the Government’s Zero Emission Bus Regional Areas (ZEBRA) 2 scheme is now less than a month away. Building on the success of the first ZEBRA scheme, the ZEBRA 2 scheme will provide £129 million to support the introduction of zero emission buses in the financial years 2023 to 2024 and 2024 to 2025. ZEBRA 2 will contribute towards delivering the Government’s aim in its national bus strategy for England to transition towards a fully zero emission bus fleet.
ZEBRA 2 is a single-stage funding competition targeted at local transport authorities (LTAs) based in England (but outside London) who have made an enhanced partnership or else begun the statutory process to decide whether to implement franchising. LTAs were asked to notify the DfT of their intention to apply for ZEBRA 2 funding by 20 October 2023, and 58 expressions of interest were received. The deadline for submission of applications is 4:00 pm on 15 December 2023.
As part of the ZEBRA 2 application process, LTAs are required to take legal advice on the subsidy control implications of their projects, and to provide both a summary and a full copy of that legal advice with their applications. Whilst the Government set up the original ZEBRA fund as a subsidy scheme which it published on the UK’s Subsidy Database, there is as yet no published subsidy scheme for ZEBRA 2 and no indication in the application guidance for ZEBRA 2 that the Government intends to make a subsidy scheme. Instead, LTAs are being asked to outline their plans for complying with the subsidy control rules.
Therefore, LTAs will need to consider all the ‘subsidy control requirements’ in the Subsidy Control Act 2022 (having first checked that it is the Subsidy Control Act 2022 which applies, and not the State aid rules). This includes a requirement to assess any proposed subsidy against the seven core subsidy control principles, as well as energy and environment principles A and B. However, the guidance confirms that LTAs are not required to include their full subsidy control principles assessment with their application.
Depending on the amount of funding involved, LTAs may also need to consider whether any subsidy could be a subsidy of interest (SoI) or subsidy of particular interest (SoPI). Generally, these categories of subsidy have a greater potential to distort competition and investment within the UK, or to have a negative effect on international trade or investment, and so a more in-depth assessment against the subsidy control principles is required. In the case of a SoPI, there is also a requirement for mandatory referral to the Competition and Markets Authority for review. For further information on the referral process, please see our earlier article.
We would recommend that LTAs pay close attention to the DfT’s guidance on the ZEBRA 2 fund when preparing their applications, as it contains detailed information on the application and assessment process and the eligibility criteria.
If you’d like to know how Bevan Brittan could help with the subsidy control advice for your ZEBRA 2 funding application, please get in touch with Helen Feinson, Edward Reynolds or Sally Stone.
Publications & Guidance
Local agencies struggle to prioritise early help for children and families
Ofsted | 7 November 2023
Ofsted, the CQC and HMICFRS have published a joint report on the multi-agency response to children and families who need help. The report draws on the inspections of five local authority areas to evaluate how local partners, including children’s social care, health services, schools, police and wider services work together to support children and families who need help. The report specifically considers how well local early help services are delivered and co-ordinated. Read ‘The multi-agency response to children and families who need help’ report.
Asylum system: Doubts and concerns raised around Government's approach to backlogs
UK Parliament | 27 October 2023
The Home Office faces a huge challenge in clearing asylum system backlogs by December. In a report published on 27 October, the Public Accounts Committee expressed a number of doubts and concerns about the Asylum Transformation Programme, including on its work to clear a backlog of cases, the unacceptable costs of an inefficient system, a lack of safeguards for vulnerable people, and greater risk of flawed decisions on people’s asylum claims. Read the press release here.
Child and family social worker workforce
Department for Education | 25 October 2023
The Department for Education has published its consultation response and analysis to its consultation on ‘Child and family social worker workforce’ which considered proposals to introduce national rules on the use of agency child and family social workers for local authority children’s social care.
House of Commons Library | 24 October 2023
This briefing paper provides an overview of the UK Government’s policies to support care leavers.
Care Quality Commission | 20 October 2023
State of Care is our annual assessment of health care and social care in England. The report looks at the trends, shares examples of good and outstanding care, and highlights where care needs to improve.
The state of the adult social care sector and workforce in England
Skills for Care | 11 October 2023
This report provides a comprehensive analysis of the adult social care workforce in England and the characteristics of the 1.52 million people working in it. Topics covered include: recent trends in workforce supply and demand, employment overview, recruitment and retention, demographics, pay, qualification rates, and future workforce projections.
Local Government Association | 10 October 2023
This guide is aimed at commissioning officers and managers within local authority adult social care teams. It provides advice on to how to set up effective local systems to identify and manage the risks of modern slavery in adult social care.
Children’s services improving despite systemic challenges – new LGA report
Local Government Association | 9 October 2023
Children’s services are continuing to deliver improvements and sustain strong performance, despite significant national challenges, a new report commissioned by the Local Government Association reveals today.
Mental health policy and services in England
House of Commons Library | 9 October 2023
This briefing covers mental health policy and services in England. As health is a devolved matter, the governments of Scotland, Wales and Northern Ireland are responsible for setting their own policies in this area. Links to policies of devolved administrations are provided in section 7 of this briefing.
A maturing approach to children’s services improvement: updating the key enablers of progress
Local Government Association | 3 October 2023
The LGA commissioned the Isos Partnership to work with councils and their partners to understand the key enablers and barriers to sustained improvement in Children’s Services.
News
Unite to continue strikes despite pay agreement
Local Government Chronicle | 2 November 2023
The Unite union will continue to take strike action despite Unison and GMB accepting the 2023 pay offer. The pay rise which was initially put forward by the National Employers in February offered £1,925 pay increase for all staff from April 1. The pay award ranged from a 9.42% rise for the lowest paid who currently earn £20,411 to 3.88% for those at the top of the pay spine.
Unite members voted “overwhelmingly” to reject the pay offer and in August and the union announced it would be taking strike action in 23 local authorities in England and Wales.
Local Government Lawyer | 1 November 2023
Councils have warned they are "running out of road" to prevent financial insolvency as they face a £600m budget overspend this year. According to analysis from the County Councils Network, the financial pressures are such that one in ten county and unitary authorities are unsure or not confident they can balance their budget this year, increasing to four in ten next year and more than half (six in ten) by 2025. The CCN's Vice Chair and Finance Spokesperson, Cllr Barry Lewis, said the pressures now mean that "well run" councils are at risk of financial failure, not just those suffering from poor governance.
‘Numerous authorities’ at S114 risk due to DSG deficits
Public Finance | 31 October 2023
Growing costs of supporting children with special educational needs and disabilities are creating huge deficits in school budgets and could force some councils to issue Section 114 notices, a senior officer has said.
Local Government Association | 29 October 2023
The largest independent providers of children’s social care brought in profits of more than £300m last year, a new report commissioned by the Local Government Association reveals.
Earlier mental health support announced for thousands nationwide
Department of Health and Social Care | 25 October 2023
The government has announced almost £5m to fund early support hubs nationwide to deliver mental health support for children and young people.
Government continues children's social care reform
Department for Education | 25 October 2023
Funding for over 460 new children’s social worker apprenticeship opportunities across the country.
‘District councils have no choice but to cut back our lifeline services’
District Councils' Network | 24 October 2023
Survey reveals how inflation and rising demand for services is forcing district councils to make unpalatable choices. Cherished local services – including many which support vulnerable people or take pressure off the NHS – are set to disappear or be cut as a result of district councils’ growing financial crisis.
Innovation projects in adult social care receive £42.6m boost
Department of Health and Social Care | 24 October 2023
Accelerating Reform Fund to support innovation in local areas to boost quality and accessibility of adult social care in England.
Government consults on safe and legal routes for refugees
Home Office | 20 October 2023
The government is continuing to deliver on the Illegal Migration Act, giving local authorities an opportunity to influence the cap on safe and legal routes.
New measures to protect children’s learning from strike action
Department of Education | 20 October 2023
Minimum service levels to protect children and young people’s education are set to be introduced in schools and colleges, the Government has announced.
Review into 50-year-old laws on social care for disabled children
Law Commission | 17 October 2023
The law on children’s social care in England is governed by a patchwork of legislation, some dates back more than five decades. This has contributed to variation in the amount and quality of support provided by local authorities, and unnecessarily complicated routes to accessing support for the parents and care givers of disabled children.
Commissioned by the Department for Education, the review’s objectives are to:
- Recommend a solution to the patchwork of legislation that currently governs social care for disabled children.
- Improve how the law on social care for disabled children fits in with the law relating to social care more broadly.
- Review the outdated language and definitions underpinning the law on social care for disabled children.
Place & Growth
The Key Reforms of the Social Housing (Regulation) Act 2023
The Social Housing (Regulation) Act gained royal assent in July 2023, and is set to proactively encourage the regulation of Registered Providers and will significantly enhance the Regulator of Social Housing’s (RSH) role in regulating the consumer standards.
It is anticipated that the Act will commence on 1 April 2024 and will cover four consumer standards:
- The Safety and Quality Standard
- The Transparency, Influence and Accountability Standard
- The Neighbourhood and Community Standard
- The Tenancy Standard
In these five video digests, we spotlight the key reforms of the Social Housing (Regulation) Act:
- Introduction to the new regulatory regime and RSH Powers
- Tenancy Standard and Neighbourhood and Community Standard
- Transparency, Influence and Accountability Standard
- Safety and Quality Standard
- Focus on Vulnerable Residents
For further help and guidance on the regulations, please contact Louise Leaver.
Legislation
King's speech: Requirement for councils to map road networks
Local Government Chronicle | 7 November 2023
A new requirement for local authorities to digitally map their road networks has been outlined in the King's speech. This is part of a proposed Automated Vehicles Bill, that the government hopes will "unlock a transport revolution by enabling the safe deployment of self-driving vehicle". Local highway authorities in England will be required to upload any traffic regulation orders to a central publication platform to create a digital map of the road network. Traffic regulation orders would have to be digitalised "to support the safe operation of self-driving vehicles". These legal documents outline "temporary, experimental or permanent restrictions" on traffic such as speed limits, restriction of HGVs from certain roads, parking restrictions and road closures for events like street parties or parades. Currently there is a legal requirement for traffic regulation orders to be published in the local print newspaper and notices posted on affected roads.
Renters Reform Bill: New portal to enable targeting of enforcement
Local Government Chronicle | 7 November 2023
A private rented property portal which will enable councils to “target enforcement” against a “minority of unscrupulous landlords” will form part of the Renters Reform Bill. The bill, which was announced in the King’s speech, set out the government’s plans to upgrade the private rented sector and improve renting for the long-term. The portal include a database of properties and will require landlords to demonstrate compliance. It will also bring together key information for tenants and councils such as when landlords are subject to banning orders and other relevant civil penalties and offences. The government also confirmed that it will not ban section 21 until “stronger possession grounds and a new court process is in place”.
New laws to speed up planning, build homes and level up
Department for Levelling Up, Housing and Communities | 26 October 2023
New laws have come in to force (26 October 2023) to speed up the planning system, hold developers to account, cut bureaucracy, and encourage more councils to put in place plans to enable the building of new homes. These measures have become enshrined in law after the Levelling-up and Regeneration Bill received Royal Assent.
Publications & Guidance
New Homes Facts Sheets and Capacity Analysis Tool launched
Homes England | 2 November 2023
Homes England has launched two new resources to support local government capacity.
The New Homes Fact Sheets have been designed to support local government in conversations with local communities. It consists of a series of ten fact sheets with key information and figures on different areas of homes building and regeneration. Each sheet has a different focus, based on feedback from local government officials, ranging from the need for more homes to how new homes are planned and sustainable design and placemaking.
The Capacity Analysis Tool is a downloadable tool that has been created to help local authorities and other organisations identify the skills and capacity within their organisation in relation to housing delivery and regeneration, and signpost actions to help improve this capacity.
Both resources are available on GOV.UK, along with the recently launched Housing Information Hub, which supports the sector by providing direct access to over 300 sources of guidance, information and tools relating to homebuilding, placemaking and regeneration.
Fire safety in houses and flats
House of Commons Library | 23 October 2023
In October 2023, new fire safety requirements for blocks of flats took effect in England. They are part of the government response to the Grenfell Tower fire.
Leasehold high-rise flats: Who pays for fire safety work?
House of Commons Library | 23 October 2023
This paper considers who's responsible for paying for fire safety works on blocks of flats in the wake of the Grenfell Tower fire.
School buildings and capital funding (England)
House of Commons Library | 19 October 2023
This briefing provides information on the different capital funding streams, and funding levels, for capital projects in English schools, as well as recent developments on the use of Reinforced Autoclaved Aerated Concrete (RAAC).
Work, health and growth: A guide for local councils
Local Government Association | 18 October 2023
This briefing provides local councillors with a strong business case to improve work and health and economic growth outcomes in their local council. The focus is on supporting people to stay in work; helping people return to work; and helping people who are not in work to find employment.
Make It Local: local government's vital role in addressing economic activity
Local Government Association | 18 October 2023
The LGA commissioned Shared Intelligence to research and review national and local opportunities in tacking economic inactivity both place-based and support for people.
Nutrient neutrality and housing development
The government announced plans to change Habitats Regulations which underpin nutrient neutrality. The amendments were rejected by the House of Lords.
Ombudsman’s Annual Complaints Review reveal a 323% rise in severe maladministration findings
Housing Ombudsman | 17 October 2023
The Housing Ombudsman’s Annual Complaints Review has revealed a sharp increase of severe maladministration findings, as individual performance reports were published for 163 landlords where the Ombudsman made most findings.
Together, they paint a challenging picture of social housing complaints which has seen a huge spike due to poor property conditions, legislative changes, media attention and the inquest into the death of Awaab Ishak.
The review also reveals an increase in maladministration findings where service requests were not handled reasonably and a decrease in findings of no fault. Combined this means more than half of findings were upheld for the first time. The Annual Complaints Review provides a unique and comprehensive assessment of complaints in social housing, including that the Ombudsman received over 5,000 complaints for the first time last year, a 28% increase on the previous year.
Government responds on RAAC housing risks correspondence
UK Parliament | 12 October 2023
Michael Gove MP, Secretary of State for the Department of Levelling Up, Housing and Communities (DLUHC) has responded to recent correspondence from Clive Betts MP, Chair of the Levelling Up, Housing and Communities (LUHC) Committee on the Department’s assessment of the risk of Reinforced Autoclaved Aerated Concrete (RAAC) in social and private housing.
News
October 2023 - update on government’s work to improve the quality of social housing
Department for Levelling Up, Housing and Communities | 31 October 2023
The government is committed to improving the quality of social housing in England. In response to the tragic death of 2-year-old Awaab Ishak, we are reforming the sector so that every tenant has a decent, safe and secure home.
Government announces support for flood-hit areas
Department for Levelling Up, Housing and Communities | 25 October 2023
Thousands of pounds of government funding to help communities recover from the impact of Storm Babet.
Major £150m funding boost for local bus services as fare cap set to be extended
Department for Transport | 23 October 2023
Reallocation of HS2 funding to improve bus services across every part of the North and Midlands.
£60m to transform brownfield land and build 6,000 homes
Department for Levelling Up, Housing and Communities | 9 October 2023
More than 6,000 new homes will be built on brownfield sites, through money given to councils to transform unused land into beautiful and thriving neighbourhoods. Across the country, from Hull to Somerset, nearly 100 regeneration projects will receive £60m from the Department for Levelling Up, Housing and Communities.
Homes England publishes Rural Housing Statement
Homes England | 2 October 2023
Homes England’s Strategic Plan sets out our mission to drive regeneration and housing delivery to create high-quality homes and thriving places across England.
Department for Levelling Up, Housing and Communities | 30 September 2023
Fifty-five towns given £20m endowment-style funds each over ten years to invest in local people’s priorities.
Governance & Reorganisation
Levelling Up and Regeneration Bill
Although perhaps not a surprise, it was nonetheless disappointing to hear that the amendments made to the Levelling Up and Regeneration Bill by the House of Lords, which would have paved the way towards local authorities in England being able to hold virtual meetings, were removed by the House of Commons.
Lords Amendment 22 had initially sought to give local authorities discretion as to the holding of virtual meetings as part of the substantive provisions of the Bill. When this was rejected by the House of Commons, a revised amendment was added by the House of Lords which would have permitted the Secretary of State to issue secondary legislation setting out circumstances in which local authorities in England could hold virtual meetings, however this met the same fate as its predecessor. During the final debate in Commons, then Minister of State at DLUHC Rachel Maclean MP stated that “the government has consistently expressed its strong view that councillors should be physically present to cast their votes and interact with citizens. Our position on this matter has not changed.”
The reintroduction of virtual meetings has been supported widely by the local government sector, with 95% of respondents to a recent LGA survey on the matter in favour of it. Notwithstanding the government’s latest rejection of these proposals, the issue of virtual meetings is unlikely to go away.
For help and advice on governance or reorganisation matters, please contact David Kitson, Philip McCourt, or Victoria Barman.
Publications & Guidance
Four-day working week arrangements in local authorities
Department for Levelling Up, Housing and Communities | 26 October 2023
This guidance is for local authorities in England who are considering adopting a 4-day working week – where staff have their working hours reduced by 20% but retain 100% of their pay (or equivalent/similar).
The government has issued this non-statutory guidance to state:
- The government does not support a 4-day working week in local authorities, as it does not believe that it delivers local taxpayers’ value for money.
- The government does not expect councils to adopt this arrangement.
- Should councils disregard this advice and there is evidence of service decline or failure, DLUHC or another government department may raise concerns directly with the authority, monitor performance more closely and consider options to correct declining performance.
Local Government Chief Executives' Development Framework: the foundations
Local Government Association | 19 October 2023
The Local Government Association (LGA) and Solace are delighted to present the first Local Government Chief Executives’ Development Framework, as part of the LGA's Sector Support programme 2023/24, funded by the UK Government.
News
Oflog to focus on spotting “warning signs” of governance and financial failure at councils
Local Government Lawyer | 3 November 2023
The new permanent chief executive of the Office for Local Government (Oflog), Josh Goodman, has said the watchdog will start out by searching for signs of governance and financial failures in local authorities. In a letter to council chief executives, Goodman said the new body would also prioritise helping councils use data to improve.
Council websites referred to equality watchdogs
The MJ | 31 October 2023
Some 56 local government websites have been referred to equality watchdogs in the last year. The Cabinet Office’s website accessibility monitoring team passes on all issues it finds to the Equality and Human Rights Commission or the equivalent in Northern Ireland to ‘determine if they want to take any further compliance or enforcement action, whether issues are fixed or not’.
Local Government Lawyer | 26 October 2023
The prospect of councils being able to hold virtual meetings has receded after amendments that would have enabled this were removed from the Levelling Up and Regeneration Bill.
Tory backbenchers pile pressure on Government
The MJ | 25 October 2023
The Government has withstood pressure from its own MPs to allow councils to hold remote meetings.
The MJ | 23 October 2023
Council senior officers are broadly united in their view that Oflog will not provide warning of local authority failure or improve performance. But what do five experts from the sector think about the Government’s new assurance watchdog?
Local Government Lawyer | 20 October 2023
There is “still a major problem” on local government standards, the outgoing chair of the Committee on Standards in Public Life has said at the end of his five-year term.
Chiefs split on need for improved assurance but united in Oflog discontent
The MJ | 19 October 2023
Senior council officers are split on whether improved assurance measures are needed but broadly agree Oflog will fail to improve performance or warn of failure.
Birmingham agrees to independent review of how it considers legal advice from Monitoring Officer
Local Government Lawyer | 13 October 2023
Birmingham City Council has accepted statutory recommendations made by its external auditors, including a call to commission an independent review of how it considers legal advice and whether its monitoring officer's advice was appropriately taken into account.
Contract Management
Procurement thresholds for 2024
The procurement thresholds for 2024 have been released via the Public Procurement (Agreement on Government Procurement) (Thresholds) (Amendment) Regulations 2023 which were laid before Parliament on 26 October 2023.
The new procurement thresholds will apply from 1 January 2024 to all procurements commenced on or after that date.
In terms of value and approach to calculating the thresholds, there is very little change from the thresholds that have been in place for the last two years, since 1 January 2022. As was the case over that period, and as distinct from the situation when the thresholds were set by EU legislation, the value of a procurement must be calculated inclusive of VAT. By way of example, a contract for services due to be awarded by a local authority (a sub-central authority) with a value net of VAT of £205,000 would be over the relevant threshold because once VAT was taken into account the total contract value would be £246,000.
Note that the threshold for Light Regime services has not changed.
A short summary of the main thresholds is below, with the 2022-2023 thresholds (which will remain in effect until 31 December 2023) shown in italic text by way of comparison:
|
Type of authority |
Type of contract |
|||
|
Works |
Supplies & services |
Light Touch Regime Services |
Concessions |
|
|
Central government bodies |
£5,372,609 £5,336,937* |
£139,688 £138,760* |
£663,540 £663,540* |
£5,372,609 £5,336,937* |
|
Sub-central authorities |
£5,372,609 £5,336,937* |
£214,904 £213,477* |
£663,540 £663,540* |
£5,372,609 £5,336,937* |
*2022-2023 thresholds
There are also changes to the thresholds for Utilities, with the threshold for contracts for supplies and services changing from £426,995 to £429,809 and the threshold for works changing from £5,336,937 to £5,372,609.
If you would like to discuss this topic in more detail, please contact Fran Mussellwhite, Partner.
Legislation
An Act to make provision about procurement. The Act received Royal Assent on 26 October and comes into force in October 2024. Read the government’s press release here: Small businesses to benefit from one of the largest shake ups to procurement regulations in UK history.
Health Care Services (Provider Selection Regime) Regulations 2023 (SI 2023 Draft)
These Regulations introduce the new Provider Selection Regime which will govern the procurement of health care services for the purpose of the health service in England by relevant authorities.
The Public Service Obligations in Transport Regulations 2023 (SI 2023 Draft)
These Regulations revoke and replace Regulation (EC) No 1370/2007 on public passenger transport services by rail and by road and to make consequential amendments to update cross-references in primary and secondary legislation and retained EU law. The purpose of these Regulations is to set out how competent authorities may act in the field of public passenger transport to guarantee the provision of services in the general interest. To this end, these Regulations set out the conditions under which competent authorities, when imposing or contracting for public service obligations, compensate public service operators for costs incurred or grant exclusive rights in return for the discharge of public service obligations. The Regulations come into force on 25 December 2023.
Publications & Guidance
Economic Activity of Public Bodies (Overseas Matters) Bill 2022-23
House of Commons Library | 23 October 2023
This briefing explains clauses of the Bill and summarises debates in the Commons and commentary, in advance of its report stage on 25 October 2023.
News
Op-ed: New procurement rules will strengthen our national security
Cabinet Office | 30 October 2023
An Op-Ed by Ministers Jeremy Quin and Alex Burghart, originally published in The Telegraph.
Part 1 Consultation on draft regulations to implement the Procurement Bill
Cabinet Office | 23 October 2023
The government has updated this consultation page to inform the audience that they will be publishing their response for Part 1 of the consultation alongside the response for Part 2.
Local Government Lawyer | 12 October 2023
The High Court has lifted the automatic suspension in a procurement challenge involving contracts for the provision of visa and citizenship application services to the Home Office. In Teleperformance Contact Ltd v Secretary of State for the Home Department [2023] EWHC 2481 (TCC) Mr Justice Constable concluded that the automatic suspension was no longer needed.
Reasonableness of exclusion of implied terms - UCTA
Bailii.org | 10 November 2023
Last Bus Limited and Dawson Group Bus and Coash Limited [2023] EWCA Civ 1297 – the Court of Appeal has allowed the appeal against a High Court decision in relation to the exclusion of a statutory implied term in a hire purchase agreement and whether that was reasonable under the Unfair Contract Terms Act 1977 (UCTA). The case considers in particular whether the parties were of equal bargaining position where the claimant was trading on the defendant’s standard terms and whether the effect of the exclusion was to leave the claimant without a remedy at all even if it received no value whilst still having to pay for the hire.
Disputes & Regulatory Support
Pro Bono Economics report: “Wasting money, wasting potential: The cost of SEND tribunals”
The charity Pro Bono Economics (PBE) has recently issued a report, commissioned by the Disabled Children’s Partnership, entitled “Wasting money, wasting potential: The cost of SEND tribunals”. The report notes that an increasing number of Education, Health and Care Plans (EHCP) are being issued, with twice as many issued in 2022 compared to 2015. However, in 2021-2022, over 11,000 SEND tribunal appeals were registered in England – a 29% increase from the previous year. Further, 96% of tribunal decisions found in favour of the person challenging the local authority’s decision. The conclusion of the report was that in 2021-2022 the public sector wasted almost £60 million in EHCP tribunal disputes. There are also costs to children, young people and their families in having to challenge an EHCP.
PBE suggests the money spent on defending tribunal cases should be invested into providing support for young people and their families. The report concludes that while EHCPs were widely regarded as a positive step when introduced, their delivery has been “hampered by lack of funding and pressure on councils and schools”. This has led to delay and distress for parents, carers, young people and children, resulting in the increase in tribunal cases. The report acknowledges these problems are not straightforward and many local authorities face significant budget challenges. However, these issues need to be addressed, and resource directed towards making the EHCP system work more effectively.
The report may be of interest to local authorities as it provides an overview of relevant statistics in this area, as well as a number of case studies. Local authorities are under significant pressure in this area, and are entitled to defend their decisions in the tribunal. However, this report is a reminder of the importance of ensuring well-reasoned decisions are being made at each stage.
For further help and guidance in this area please contact Olivia Carter or Hannah Bergin.
Publications & Guidance
‘Councils wasted £60m on tribunals over children with special educational needs,’ report finds
Pro Bono Economics | 25 September 2023
Councils wasted £60m in a year on unsuccessful court disputes with parents and carers seeking support for children and young people with special educational needs and disabilities (SEND), according to new research.
A new report by Pro Bono Economics, commissioned by the Disabled Children’s Partnership, reveals that more than 11,000 SEND tribunals – contesting decisions by local authorities – were registered in England in 2021-22, an increase of 29% on the previous year.
Fresh ideas for 21st century justice
The Law Society | 9 October 2023
The Law Society of England and Wales has published a Green Paper – 21st Century Justice Project. It puts forward some fresh ideas for practical, affordable changes to the civil justice system that will enhance access to justice and could save the system £72m over a five-year period.
News
Local Government Lawyer | 7 November 2023
The Court of Appeal (8-10 November) heard an appeal by Merthyr Tydfil County Borough Council in a Japanese knotweed case where the local authority will argue that the claim should be stayed until the claimant has engaged with its internal complaints process.
Local Government Lawyer | 7 November 2023
The Court of Appeal has allowed a local authority’s appeal against a judge’s decision to reject its application that a young person should be made subject to a care order. In EY (Fact-Finding Hearing) [2023] EWCA Civ 1241, Lord Justice Baker concluded that the judge “fell into error” in the treatment of an expert’s report, and that there were “substantial flaws” in the judge's evaluation, in particular his disregard of some of the findings as "historic".
High Court reserves judgment on judicial review over airfield asylum accommodation
Local Government Lawyer | 2 November 2023
The High Court has reserved judgment in the judicial review challenge of the Home Office's use of permitted development rights to accommodate asylum seekers on Wethersfield airfield and RAF Scampton.
Local Government Lawyer | 2 November 2023
The High Court in R (on the application of SB & Anor) v London Borough of Newham [2023] EWHC 2701 (Admin) has quashed a decision by the London Borough of Newham that a man with care needs and his carer mother were ineligible for accommodation because they could seek housing provided for asylum applicants under the Immigration and Asylum Act 1999.
London borough fails in Upper Tribunal appeal over Education, Health and Care Plan
Local Government Lawyer | 31 October 2023
The London Borough of Camden has lost an appeal against the First-tier Tribunal's conclusion that it would be inappropriate for a teenage boy’s special educational provision to be made in a school. In London Borough of Camden v KT [2023] UKUT 225 (AAC), Upper Tribunal Judge Jacobs concluded the decision of the First-tier Tribunal “did not involve the making of an error on a point of law”.
Local Government Lawyer | 31 October 2023
The High Court has granted permission for a judicial review claim that argues that the Department for Transport's decision to cut its Active Travel Fund by almost £200m breached climate, air quality and equalities duties.
Home Office has “segregated” asylum seekers at airfield, letter before claim argues
Local Government Lawyer | 31 October 2023
The Home Office is facing a fresh legal challenge over housing asylum seekers at Wethersfield Airfield after a charity claimed conditions on the site amount to "detention" and that the asylum seekers have been segregated from the British population.
UK Parliament | 26 October 2023
The Justice Committee has launched a new inquiry to examine the work of the County Court amid long-standing concerns over court capacity and resources.
Permission granted for judicial review of Environment Agency enforcement of regulations at River Wye
Local Government Lawyer | 23 October 2023
A campaign group that claims the Environmental Agency is failing to enforce regulations meant to protect the River Wye from pollution has won permission to have a judicial review claim heard by the High Court.
Supreme Court to hear appeal this week on local authorities and duty to take child into care
Local Government Lawyer | 23 October 2023
The Supreme Court will this week hear two unconnected cases whether the central issue is whether a local authority had assumed responsibility to protect a child from harm through its conduct, and therefore owed them a duty of care at common-law.
Newham wins landmark cladding removal case
The MJ | 19 October 2023
Newham LBC has become the first council in Britain to successfully prosecute a building owner for failing to remove flammable cladding.
PSPO banning abortion clinic demonstrations to be challenged in High Court
Local Government Lawyer | 17 October 2023
The High Court heard claims brought by two Christian campaign groups over Bournemouth, Christchurch and Poole Council's (BCP Council) decision to implement a Public Spaces Protection Order (PSPO) forcing campaigners to keep away from an abortion clinic.
Ministry of Justice | 16 October 2023
Turnaround is a youth early intervention programme led by the Ministry of Justice. The programme is providing £56.5m multi-year grant funding to Youth Offending Teams (YOTs) across England and Wales until March 2025, enabling them to intervene earlier and improve outcomes for children on the cusp of entering the youth justice system. This additional funding will enable YOTs to support children who they currently do not work with – up to 17,500 more children across England and Wales.
The programme was announced in May 2022 and entered delivery in December 2022. It will run until March 2025.
High Court to hear urgent legal challenge against council over use of migrant barge
Local Government Lawyer | 13 October 2023
An urgent High Court challenge against Dorset Council is to be heard over the use of the Bibby Stockholm barge to accommodate asylum seekers in Portland Harbour.
Local Government Lawyer | 11 October 2023
In Delo, R (On the Application Of) v Information Commissioner [2023] EWCA Civ 1141, the Court of Appeal has handed down its ruling in a long-running dispute over the UK Information Commissioner's responsibilities when a data subject lodges a complaint that a data controller has infringed data protection law.
Local Government Lawyer | 10 October 2023
In S (Children: Findings of Fact) [2023] EWCA Civ 1113, the Court of Appeal has allowed an appeal by a local authority and remitted for rehearing a case concerning findings of fact in care proceedings.
Local authority threatens judicial review over proposed transfer of hospital services
Local Government Lawyer | 10 October 2023
North Lincolnshire Council has threatened judicial review proceedings over proposals to move some services out of Scunthorpe General Hospital, “if local people’s views are not given the weight they deserve when deciding on the future of health services in the area”.
Taking control of goods regulations consultation
Ministry of Justice | 10 October 2023
The government is seeking views on amendments to the regulations that govern the recovery of fees that enforcement agents and High Court Enforcement Officers (formerly known as bailiffs) can recover when enforcing debts. This consultation closes at 11:59 pm on 4 December 2023.
Resources Library
Zebra 2 Funding – Subsidy Control Implications
Building Safety – Key Changes from 1 October 2023
Supported Accommodation for 16-17 Year Olds: New Ofsted Registration and Regulation
Procurement: updated thresholds for January 2024 published
Landmark Case Declares Adjudicator's Decision Unenforceable Due to Apparent Bias
All Bevan Brittan articles and news
Events
Have you registered for…
Online
5 December, 12:30 – 1:30 pm
PSIRF and the Duty of Candour
Online
12 December, 12:30 – 1:30 pm
Distinguishing unwise decision-making from lacking capacity
On Demand
Hoarding Disorder: a panel discussion on practical and legal steps
Prosecuting Successfully – Practical Lessons and Insights
Special Educational Needs and Disabilities Snapshot
Inquest Update
