LA View October 2023 Edition

30/10/2023

Welcome to the October 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.

LA Spotlight

Have you actioned the Building Safety reforms?

October 2023 marks the introduction of a number of new requirements outlined in the Building Safety Act 2022 (BSA), mainly but not solely for higher-risk buildings. Given the fundamental importance of this legislation to the design, construction and management of higher-risk buildings, it is key that those in local authorities managing buildings or involved in their construction are fully aware of what these new requirements entail.

Construction work to higher-risk buildings

The newly created Building Safety Regulator (BSR) will automatically become the building control body for higher-risk buildings (those above 18m / seven storeys with at least two residential units). In this role, it will be responsible for, and able to recover its costs for:

Assessing compliance with the Building Regulations (non-compliance now being a criminal offence).
Implementing a new registration system and competency framework for building control approvers and registered building inspectors.
Providing building control approval via stop / go points; approving plans before construction work begins (Gateway 2), and approving completed buildings before occupation is permitted (Gateway 3).
Making and recovering charges in connection with the performance of relevant functions.
Maintaining a register of newly occupied higher-risk buildings

Local Authorities will remain the building control body for other, non-higher-risk buildings.

From 1 October 2023, existing duty holders under the Construction (Design and Management) Regulations 2015, namely clients, designers, principal designers, contractors and principal contractors, will have additional duties to plan, manage and monitor their activities in relation to building regulations. These duties apply to all building work, not just higher-risk buildings.

Occupied Buildings – Safety Case, Building Assessment Certificates and the Golden Thread

All existing occupied higher-risk buildings had to be registered with the BSR by 1 October 2023. Failure to appropriately register, or to allow occupation of un-registered buildings, is a criminal offence that could result in a fine, imprisonment or both.

Principal Accountable Persons must now, as soon as possible, prepare a safety case report which identifies the building’s safety risks (spread of fire or structural failure) and explains how the risks are being managed. This must be updated when improvement work is carried out to manage building safety risks or work on the building impacts building safety risks.

The BSR will be carrying out checks to make sure that the people who are responsible for occupied high-rise residential buildings are managing building safety risks, complying with their duties under the new legislation, and keeping residents safe. This will be done through the Building Assessment Certificate process where the Principal Accountable Person must apply to the BSR for a certificate, when directed by the BSR to do so.

The people responsible for a building must put in place and maintain a golden thread of information. This must include all relevant information about how a building is constructed (ie. the information and documents produced for registration and certification), the safety case, details of mandatory occurrence reporting and evidence of resident engagement.

It is important that those responsible for all buildings are aware of these changes and their on-going duties for ensuring building are safe throughout the lifecycle of a building.

If you require help or advice on the implementation of the Building Safety Act, please contact Louise Mansfield.

Louise Mansfield, Legal Director

Overview Quick Links

• Net Zero
• Place & Growth
• Governance & Reorganisation
• Contract Management
• Disputes & Regulatory Support
• Resource Library
• Events

Your Contacts

Nathan Bradberry & Rupert Lugg
Rebecca Pendlebury
David Kitson & Victoria Barman
Richard Lane & Liz Fletcher
Olivia Carter & Judith Hopper

Net Zero

Retrofit, give us a Wave (2.2)

Recent announcements to improve energy efficiency in social housing are welcome but still fall short of the long-term policy and funding certainty required for faster delivery of housing retrofit at scale.

The Department for Levelling Up, Housing and Communities have confirmed plans to launch a consultation by early 2024 on minimum energy efficiency standards in the social housing sector, following the Social Housing (Regulation) Act recently gaining Royal Assent.

Separately, the Government has recently announced a Wave 2.2 of the Social Housing Decarbonisation Fund (SHDF), which is designed to upgrade social housing stock currently below Energy Performance Certificate (EPC) band C up to that standard. This new “top up” competition is expected to open to applications from local authorities, combined authorities and registered providers towards the end of November 2023 and will allocate up to £80m of grant funding from April 2024.

Currently, fewer than half of homes in England and Wales currently having an EPC rating of C or higher, while Moody’s have estimated it will cost between £12bn and £18bn to retrofit social housing units to EPC C by 2030-2035. And, although government initiatives like the SHDF will help deliver more comfortable, energy efficient homes and reduce carbon emissions, Bevan Brittan LLP are currently advising multiple local authorities and housing associations (who have successfully applied for government funding) about a number of commercial and practical issues that may arise including:

the need to spend grant funding within fairly tight project timetables
selection of delivery model
compliance with procurement legislation
occupier engagement
access to properties
managing delay risk

If you would like to discuss any of the above topics please get in touch with any member of our dedicated team of specialists, including Nathan Bradberry, Thomas Graham and Carrie Davies.

Publications & Guidance

The Energy Bill and households: FAQs

House of Commons Library | 29 September 2023

This briefing answers frequently asked questions about what the Energy Bill would do if it became an Act in its current form. It covers energy performance regulations, energy smart appliances, smart metering and hydrogen heating.

New data reveals that there is just one electric vehicle charger for every ten miles in England’s county and rural areas

County Councils Network | 28 September 2023

A new report has found that the number of publicly-available electric vehicle charge points in England’s county and rural areas lags far behind major towns and cities – as councils warn that much more needs to be done to close the gap in order to meet demand.

The Future Is Local: The Local Mission Zero Network Report

Mission Zero Coalition | 26 September 2023

The report, a follow-up to the Government-commissioned Independent Review of Net Zero, Mission Zero, reasserts the need for “a local big bang” on Net Zero and assesses the progress of ambitious local and regional authorities driving Net Zero progress in their communities. It also details the barriers stopping local leaders from realising their ambitions.

Government must get a grip on the haphazard implementation of environmental regulations

UK Parliament | 21 September 2023

The Built Environment Committee has published its report, ‘The impact of environmental regulations on development’, which calls for the Government to show a strong display of political leadership to deliver and implement a comprehensive strategy for both driving development and protecting the environment.

Approaches to achieving net zero across the UK

National Audit Office | 15 September 2023

This report is a joint piece of work between the public audit offices of the four UK nations – Audit Scotland, Audit Wales, National Audit Office and Northern Ireland Audit Office – and has been produced with engagement from each respective government or administration. It sets out the UK and devolved governments’ legislation, policy, strategy, governance and monitoring arrangements, relevant to achieving net zero greenhouse gas emissions.

This work has several aims:

To set out how the responsibilities and powers for achieving the net zero target are split between the UK government and each of the devolved governments.
To provide insight and stimulate public discussion on each UK nation’s overall approach to achieving net zero.
To support the scrutiny of governments’ arrangements to achieve net zero.
To lay the foundations for potential further work on climate change by the UK’s public audit offices.

News

Council pension funds call for climate vote

The MJ | 3 October 2023

Local authority pension fund managers have urged big companies to give shareholders more of a say on plans to reach net zero.

Sustainability programme, funded by Crown Commercial Service, to support councils tackle climate change

Local Government Association | 2 October 2023

“Councils are at the forefront of local sustainability action and through this programme and partnership with Crown Commercial Service, the LGA will be able to support councils with carbon reduction and adaptation measures.”

Social housing tenants helped to cut energy bills with £80 million for home upgrades

Department for Energy Security and Net Zero | 2 October 2023

More social housing tenants to receive energy efficiency upgrades in their home, with an additional £80 million under Social Housing Decarbonisation Fund.

Manchester's West Gorton climate-resilient ‘sponge park'

UK100 | 28 September 2023

The community 'sponge park' in West Gorton has been designed to demonstrate how green infrastructure can reduce flood risk. The new park opened in June 2020 and includes a number of sustainable urban drainage features such as swales, rain gardens, permeable paving and bio-retention tree pits to reduce the amount of rainwater entering the sewer system. The park also aims to improve local biodiversity and provide a much-needed green space for local residents to exercise, socialise and relax.

Recycling centres at risk of closure amid ban on DIY waste charges, warn councils

Local Government Association | 28 September 2023

“For many councils, reducing their abilities to charge for the disposal of DIY waste will lead to funding reductions that will have to be passed on to reduced waste services popular with our residents."

Biodiversity Net Gain moves step closer with timetable set out

Department for Environment, Food & Rural Affairs | 27 September 2023

Government has set out next steps on plans for new housing, commercial and infrastructure developments to be “nature positive” by confirming that upcoming legislation to bring in these rules will be laid in November.

Cheaper bills and a more reliable heating supply for thousands of homes and businesses on heat networks

Department for Energy Security and Net Zero | 26 September 2023

Old and inefficient heat networks to be upgraded, to offer a more reliable service for thousands of homes and businesses.

Biodiversity Net Gain moves step closer with timetable set out

Department for Environment, Food & Rural Affairs | 27 September 2023

Few councils' homes meeting energy efficiency target

The MJ | 25 September 2023

New figures have revealed just 18 councils have energy efficient housing stock, laying bare the challenge of tackling the climate emergency for local authorities.

Mayor announces further funding to rewild London and make capital more resilient to climate change

London City Hall | 25 September 2023

The Mayor of London, Sadiq Khan, has committed a further £710,000 to fund projects that will help to rewild the capital. The third round of the Rewild London Fund is now open for applications until noon on 27 November for schemes that will increase biodiversity and create more habitats for animals and plants to thrive, making the city more resilient to climate change.

Screeching U-turn on waste proposals

The MJ | 21 September 2023

The Government has claimed it is scrapping its ‘top-down approach’ on recycling while still ensuring ‘all homes in England recycle the same materials’.

What does Sunak's statement on net zero mean for the clean energy industry?

Regen | 22 September 2023

Now the dust has settled on the Prime Minister’s statement on net zero, Regen’s CEO Merlin Hyman gives his take on the policy announcements and what they might mean for the clean energy industry.

Levelling-up and Regeneration Bill: reforms to national planning policy

Department for Levelling Up, Housing and Communities | 21 September 2023

A partial response in relation to onshore wind has been published by the government. In December 2022 the government consulted on a number of proposed changes to the National Planning Policy Framework, including changes relating to onshore wind development in England. That consultation concluded on 2 March 2023 and the government received over 26,000 responses.

Having considered the responses, the government are proceeding with changes to national planning policy for onshore wind which take forward the proposals which were consulted upon, with minor changes to reflect responses and provide clarity on how policy should be applied in practice.

Government accused of 'paralysing' councils on waste

The MJ | 20 September 2023

The Government has been accused of leaving frustrated councils ‘paralysed’ by ‘painfully slow’ progress pushing through its waste strategy.

PM recommits UK to Net Zero by 2050 and pledges a “fairer” path to achieving target to ease the financial burden on British families

Prime Minister’s Office | 20 September 2023

UK’s over-delivery on reducing emissions provides space to take a more pragmatic, proportionate, and realistic approach to reaching net zero.

UK100 launches new Powers in Place: Nature report

UK 100 | 13 September 2023

Powers in Place: Nature is a comprehensive assessment of local authorities’ duties and powers to restore nature and biodiversity. It also underscored the urgent nature crisis in the UK.

Former rubbish dump in Essex becomes UK’s third largest solar farm

The Guardian | 11 September 2023

The largest solar farm in Europe to be built on a closed landfill site has begun generating renewable electricity from a former rubbish dump in Essex. The Ockendon solar farm, the third largest in the UK, includes more than 100,000 solar modules covering 70 hectares (173 acres) of land.

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Place & Growth

Damp and mould: understanding and addressing the health risks for rented housing providers

On 11 September 2023, the Secretary of State for Levelling Up, Housing and Communities, Michael Gove, sent a letter to social housing providers regarding the government's guidance Damp and mould: understanding and addressing the health risks for rented housing providers, which was published on 7 September 2023.

The Guidance clearly sets out social and private landlords' legal responsibilities to their tenants, and cautioned of the serious health risks that damp and mould pose.

The government's letter urges landlords to read the guidance and highlights the key points, including that:

damp and mould should not be dismissed by a landlord as a tenant's "lifestyle choice"
landlords should identify the underlying causes of damp and mould, such as structural issues or inadequate ventilation, and find long-term solutions to these
people with certain health conditions, children and older adults are at greater risk of more severe health problems arising from damp and mould.

The Guidance also sets out to landlords the existing laws around damp and mould and the penalties for not complying with them.

In the letter, the government urges landlords to read the guidance and adopt the best practices it sets out.

The secretary of state further confirms that the Guidance forms part of the government’s wider work on improving standards in the rented sector which includes commitments to:

introduce “Awaab’s Law” to set out new requirements for landlords to address hazards such as damp and mould in social homes
provide new powers for the Housing Ombudsman and change the law so that social housing residents can complain directly to the Ombudsman
review the Decent Homes Standard and apply it to private rented homes;
introduce new professional standards that will require senior housing staff to hold, or work towards, recognised housing management qualifications, and
introduce the new Private Rented Property Portal and give all private tenants access to an Ombudsman if their landlord fails to resolve legitimate complaints.

It is clear from the secretary of state’s letter and the Guidance that the government is keen to implement measures in order to improve standards in the rented sector, therefore landlord’s should carefully review the Guidance and act promptly when tenant’s raise issues of damp and mould in their property.

For further information please contact John Cox or Neil Brand.

Publications & Guidance

Local pubs deliver invaluable socio-economic value, ministers must act to save them – new report states

Localis | 29 September 2023

Government must give pubs which serve as the beating hearts of their communities greater support with tax rebates to safeguard the nation’s locals as vital social lifelines, a report from the think-tank Localis has urged.

In a report entitled ‘Inn-Valuable: unlocking the socio-economic potential of our nation’s pubs’, Localis also argued that a minister for pubs role be reinstated to join up help for the country’s pubs sector – which cumulatively supports 936,000 jobs, generates £28bn in GVA to the economy and delivers £15bn in tax revenues to the Exchequer annually.

3/2023: The Non-Domestic Rating Bill

Department for Levelling Up, Housing and Communities | 28 September 2023

Business rates information letters are issued by the Department for Levelling Up, Housing and Communities at regular intervals throughout the year.

Unleashing the potential of the UK's cities

RSA | 28 September 2023

A great many of the UK’s great cities are hives of activity, hubs of culture, mechanisms of delivery, envied around the world. Yet so much of their potential remains untapped. There is huge scope for them to add dynamism to our economies, cohesiveness to our communities, redemption to our environment. The long-term dividends from doing so are enormous. The practical question is – how it is to be done?

This report seeks to provide practical and implementable answers to that question. It is the culmination of 12 months’ work by the Urban Futures Commission which we had the honour to co-chair. It has drawn on contributions from an outstanding set of fellow Commissioners, partners and staff, in a joint initiative between the RSA and Core Cities UK.

Leasehold high-rise flats: Who pays for fire safety work?

House of Commons Library | 25 September 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.

Turning the Tide on Rising Homelessness and Rough Sleeping

The Kerslake Commission | 24 September 2023

The Kerslake Commission was convened to learn the lessons from the ‘Everyone In’ initiative which supported people who were sleeping rough during the pandemic, and which led to a 37% drop in rough sleeping. The landscape is now vastly different, with the 2022 official figures showing a 26% increase in rough sleeping and the more recent statutory homelessness figures showing the number of households who are homeless and living in temporary accommodation is the highest since records began.

The report recognises where progress has been made but fundamentally seeks to explain the key challenges driving this trend. The Commission advises what measures the current Government should take to reduce the numbers and what should be the priorities of the next administration in tackling homelessness and rough sleeping. Its findings and recommendations have been developed through consultation with its Advisory Board and other key homelessness stakeholders.

Leasehold and commonhold reform

House of Commons Library | 22 September 2023

This paper considers trends in leasehold ownership, ongoing problems associated with the sector, and Government plans for future legislation.

A Smoother Ride: Reviewing the Bus Services Act 2017 to empower local areas

Local Government Association | 22 September 2023

Local government know their communities and their transport needs best. This joint report between the LGA and Urban Transport Group (UTG) reviews the provisions of the Bus Services Act and contains recommendations for legislative change as well as quick wins that could better support bus services in our communities.

School buildings and capital funding (England)

House of Commons Library | 22 September 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).

Measuring the placemaking impacts of housing-led regeneration

Homes England | 12 September 2023

The first in a series of Homes England research reports on measuring social value.

News

PM redirects HS2 funding to revolutionise transport across the North and Midlands

Prime Minister’s Office | 4 October 2023

A revolution in the country’s transport infrastructure will see billions of pounds redirected from spiralling HS2 costs to build the daily connections that people depend on – unlocking potential, driving growth and transforming communities.

Action to support rural communities announced

Department for Environment, Food & Rural Affairs | 2 October 2023

100,000 homes and businesses in rural parts of the UK will be further supported to access improved broadband connections.

Grenfell Tower site update October 2023

Department for Levelling Up, Housing and Communities | 2 October 2023

A summary of current activity at the Grenfell Tower site.

Prime Minister puts local people in control of more than £1bn with long-term plan for left-behind towns

Department for Levelling Up, Housing and Communities | 30 September 2023

Fifty-five towns given £20mn endowment-style funds each over ten years to invest in local people’s priorities.

Funding for night shelters to help rough sleepers off streets

Department for Levelling Up, Housing and Communities | 29 September 2023

Rough sleepers to access a safe place to stay and vital support to help turn their lives around as funding is given to 26 night shelters across England.

New regeneration plans announced to level up Hull and Sandwell

Department for Levelling Up, Housing and Communities | 28 September 2023

Sandwell and Hull the first areas to benefit from new major bespoke regeneration project.

Consultation on directions to the Regulator of Social Housing: tenant rights and complaints

Department for Levelling Up, Housing and Communities | 27 September 2023

This consultation seeks views on Directions from the Secretary of State to the Regulator of Social Housing in relation to the provision of information on tenants’ rights and complaints. This consultation closes at 11:59 pm on 22 November 2023.

Technical consultation on a Community Wealth Fund in England

Department for Culture, Media and Sport | 21 September 2023

The Department for Culture, Media and Sport is seeking views on the key design principles of a dormant assets-funded community wealth fund in England. This technical consultation follows a commitment made by the government in its response to the consultation on the English portion of dormant assets funding. This stated that community wealth funds would be the fourth cause to receive dormant assets funding in England.

Updated List of Education Settings with RAAC

Department of Education | 19 September 2023

An updated list of education settings with confirmed Reinforced Autoclaved Aerated Concrete.

Ofsted statement for schools affected by RAAC

Ofsted | 12 September 2023

We know that the situation with reinforced autoclaved aerated concrete (RAAC) in some education settings is challenging for parents, pupils and school staff.

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Governance & Reorganisation

Professional Standards

In the light of the upsurge in public interest reports, the issuing of s.114 reports and the government looking at new best value guidance and assurance frameworks, LLG, CIPFA and SOLACE have proposed for the first time to issue a shared set of guidance and professional standards to support how an authority’s monitoring officer, chief finance officer and head of paid service should go about their work, and we have been requested to draft these documents on their behalf.

The three organisations regularly discuss issues of shared concern, including how to promulgate best practice in the workings of the three members of the governance ‘golden triangle’ and their incredibly difficult roles to ensure good governance, financial stability and high ethical standards in a local authority. Once agreed, it is intended that the documents will take the form of a high level set of professional standards, or a code, that will be accompanied by more in-depth guidance and explanation to support it.

A first draft is being prepared by Bevan Brittan, which will then be shared for consultation with the three organisations, beginning in person at the LLG Governance Conference in November.

Bevan Brittan is undertaking this exercise as a corporate partner. We are delighted to do so because it further recognises our place as a leading Tier 1 local government firm, and the considerable expertise we have in providing governance advice to local authorities. The team includes several former monitoring and deputy monitoring officers, who have written extensively on the subject and between whom have many years’ experience in advising on monitoring officer, chief finance officer and head of paid service issues.

For those that are attending, we look forward to discussing this exciting initiative with you at the LLG Governance conference.

For help and advice on governance or reorganisation matters, please contact David Kitson, Philip McCourt, or Victoria Barman.

Publications & Guidance

An introduction to archives for councils

Local Government Association | 1 October 2023

Archives hold the unique and irreplaceable story of organisations, businesses, communities and individuals across the country. The National Archives, as archive sector lead in England, has written this reference guide to help councils better understand what archives are, why they are so important, and where to go for further information.

Councillor workbook – Scrutiny

Local Government Association | 26 September 2023

This workbook has been designed to provide councillors with insights and information on the 'overview and scrutiny' function of councils to assist them in their role as a councillor.

Levelling Up Committee criticises ‘repeat offender’ DLUHC for delayed Government responses to Committee reports

UK Parliament | 19 September 2023

The cross-party Levelling Up, Housing and Communities (LUHC) Committee has published a Special Report which expresses ‘concern and disappointment’ at the Department for Levelling Up, Housing and Communities (DLUHC) for its persistent poor performance in the timeliness of Government responses to Committee reports.

Voter ID

House of Commons Library | 18 September 2023

Voters must now show photo ID at UK Parliamentary elections, police and crime commissioner elections and at local elections in England. This briefing looks at the background to voter ID in the Great Britain.

News

Monitoring officer at Birmingham "under investigation" despite no evidence she gave incorrect legal advice, external auditors reveal

Local Government Lawyer | 5 October 2023

Birmingham City Council's monitoring officer is subject to an investigation in relation to the provision of legal advice amid "strained" member-officer relations at the financially-beleaguered council, the authority's external auditors have revealed.

Woman arrested on suspicion of bribery as Essex Police investigate planning matter involving Thurrock Council

Local Government Lawyer | 4 October 2023

Police investigating a recent allegation of bribery in relation to a planning application in Thurrock have made an arrest, Essex Police have said.

ICO Refuses to Over Turn Government's Decision Not to Release Call For Evidence Information

Lawyers in Local Government | 4 October 2023

Lawyers in Local Government (LLG) and the Association of Democratic Services Officers (ADSO) have said they are “profoundly disappointed” after the Information Commissioner's Office (ICO) found their freedom of information (FOI) request asking for all information received with the responses to the Government’s call for evidence on remote meetings to be “vexatious”.

Gove attacks four-day week 'nonsense' in conference speech

The MJ | 3 October 2023

Local government secretary Michael Gove delivered a speech to the Conservative Party Conference light on new policies and laden with election slogans.

Monitoring officer rejects allegations made against planning committee chair but proposes reforms to relations between councillors and officers

Local Government Lawyer | 2 October 2023

Blackburn with Darwen Borough Council’s monitoring officer has proposed reforms to relations between councillors and planning officers after accusations were made against planning committee chair Dave Smith.

City explores four-day week

Local Government Chronicle | 29 September 2023

Norwich City Council is to explore introducing a four-day week for staff after a motion by a Green councillor passed at a meeting on Tuesday.

Error in officer report sees councillors consider extra £95m in unnecessary funding for road project

Local Government Lawyer | 29 September 2023

Councillors at Shropshire Council earlier this month voted to approve a draft capital strategy that mistakenly designated an extra £95m in funding for a road works project.

Share information to protect children and young people at risk, urges UK Information Commissioner

Information Commissioner’s Office | 28 September 2023

The Information Commissioner, John Edwards, has issued an advisory notice to public authorities calling for an immediate end to the use of original source excel spreadsheets when responding publicly to Freedom of Information Act (FOI) requests.

Information Commissioner calls on public authorities to stop using spreadsheets in FOI responses

Information Commissioner’s Office | 28 September 2023

Ombudsman offices open joint consultation on Complaint Handling Code ahead of statutory requirements

Local Government and Social Care Ombudsman | 28 September 2023

The Local Government and Social Care Ombudsman and the Housing Ombudsman have launched consultations on a joint Complaint Handling Code.

Incoming Ombudsman rules out easing standard of scrutiny for councils in financial difficulties

Local Government Lawyer | 22 September 2023

The proposed Local Government and Social Care Ombudsman has said there will be no reduction in the standard of scrutiny for councils that are facing financial issues, despite the rising number of authorities issuing section 114 notices.

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Contract Management

PPN 09/23: Updates to the Cyber Essentials Scheme

The Cabinet Office has recently published PPN 09/23 relating to the Cyber Essentials scheme. This is a government backed scheme to improve cyber resilience within the public sector and which prospective suppliers for certain types of public sector contracts are required to hold (or demonstrate equivalent controls are in place). The Note replaces the previous PPN regarding Cyber Essentials (PPN 09/14) and requires all in scope organisations (central government departments, executive agencies and NDPBs, and all NHS bodies) to implement the requirements of PPN 09/23. Whilst not mandatory for other public bodies, they are advised to consider applying the approach set out in the PPN.

The Note sets out the technical requirements and minimum standards suppliers to all in-scope organisations are required to meet in order to be able to deliver contracts or services that include a number of attributes relating to personal data of either citizens or government workers, day to day government business, or systems designed to process data at Official level or above. Annex A of the Note provides a helpful list of examples of the types of contracts where compliance with the Cyber Essentials scheme would be required and also where the Scheme would not be relevant to other types of contracts. Evidence of holding a Cyber Essentials certificate (or evidence of an equivalent standard for cyber security) is considered essential at the point when data is to be passed to the supplier.

The Note highlights that Cyber Essentials may not be appropriate for certain requirements, and where the relevant organisation deems that there is a higher risk of being subject to cyber-attack, it may be necessary to apply more sophisticated strategic measures to deal with such threats. Conversely, the Note also advises that in-scope organisations should not over-burden suppliers or deter SMEs or other third sector enterprises from bidding from public contracts. Organisations will need to be able to record their decision-making around the use of the Scheme in any procurement exercise in case of challenge. However, given the Scheme’s requirements include some relatively basic cyber hygiene measures, it may be more pertinent for organisations to be able to demonstrate their reasons for not applying the Scheme, depending on the nature of the procurement being run and contract being offered. Equally organisations will need to consider whether to apply the basic Cyber Essentials Scheme in their Contract Notice, or whether the more stringent requirements of the Cyber Essentials Plus scheme should be specified. The Note confirms in its FAQs at Annex C, that any applicable Scheme requirements should be discussed with potential suppliers in the pre-procurement stage and specified in the Contract Notice.

Bevan Brittan can help with reviewing your cyber security requirements as part of your ongoing business resilience and your procurement needs. We are able to offer specialist cyber security advice from experts in our Information Law and Privacy team, together with dedicated commercial support from our Commercial and Infrastructure teams.

Publications & Guidance

PPN 09/23: Updates to the Cyber Essentials Scheme

Cabinet Office | 19 September 2023

Cyber Essentials is a Government backed scheme to help businesses of any size protect themselves against a range of the most common cyber-attacks and to demonstrate their commitment to cyber security. Since 2014 the government has required suppliers bidding for certain types of public contracts to hold Cyber Essentials or Cyber Essentials Plus certification (or demonstrate that equivalent controls are in place) to ensure appropriate cyber security controls are in place and reduce cyber security risks in supply chains.

This PPN provides an update to PPN 09/14 and sets out the actions In-scope organisations should take to identify and mitigate cyber threats for certain types of contracts, along with resources to support implementation. PPN 09/14 will be withdrawn. For more information, please read Bevan Brittan’s recent article.

News

Public sector procurement – social value

The MJ | 3 October 2023

A look at how Crown Commercial Service (CCS) is working with local government to build social value into procurement.

Referral of the proposed subsidy to Loganair Limited by Dundee City Council

Competition and Markets Authority | 15 September 2023

The Subsidy Advice Unit (SAU) has accepted a request for a report from Dundee City Council concerning its proposed subsidy to Loganair Limited.

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Disputes & Regulatory Support

Freedom of Information Compliance – avoid a backlog!

As the ICO continues to carry out investigations and enforcement actions regarding FOI backlogs, ensuring your approach is compliant is more important than ever.

The Information Commissioners Office (ICO) has recently delivered a number of reprimands against public bodies for Freedom of Information (FOI) non-compliance; the area is clearly becoming a priority for the regulator. In particular, the enforcement notices have called out organisations with:

substantial backlogs of outstanding requests, or
a high percentage of requests being responded to outside of statutory time limits.

In light of these enforcement notices, public bodies subject to the FOI Act should be urgently looking at their own resourcing and prioritisation to prevent or minimise ICO investigation. In this first in a series of articles and updates, we sketch out the core obligations and timescales of FOI.

Core duties

Under FOI, public bodies have three obligations:

to proactively publish information
in response to a request for information, to confirm whether that information is held, and
in response to a request for information, to disclose that information.

Who can make a request and how?

Any individual can make an FOI request to a body subject to FOI, and that request can be made to any employee of that body – while you can direct requests to a dedicated FOI function, all public-facing staff should be trained to recognise an FOI request, and to direct it appropriately.

Exemptions

Numerous exemptions apply that allow a body to refuse to comply with above, depending on the nature of the information or the effects its release could have.

Some of the most common exemptions include:

Personal data
Requests for the requestor’s personal data should be treated under the UK GDPR; requests including third party personal data will need to be considered under a balancing act.

Prejudice to commercial interests
Where information would impair a party’s (the public body, a private sector supplier/partner, or any other body) commercial interests, depending on the public interest in the information it may not need to be disclosed – this might be disclosing a trade secret, confidential pricing, proposed plans or failures to meet contractual targets.

Prejudice to conduct of public affairs
Where information would impair the public body’s ability to carry out its duties or would otherwise impede its ability to discuss and exchange views internally it may not need to be disclosed – for example information about a crisis while the public body is in the midst of that crisis.

Law enforcement
Where a public body processes information, or releasing that information could expose the public body to crime, it may be able to withhold information – this would include for example financial data such as whether business rates have been paid by individual properties, which would allow fraudsters to launch a ‘man in the middle’ attack.

Timescales
At first instance, FOI requests should be handled within 20 working days of receipt. In some circumstances, this can be extended by a further 20 working days, but organisations should not assume this will always be the case.

If you have any queries regarding FOI matters, or would like to discuss compliance more generally, please contact Ben Pumphrey or Alastair Turnbull.

Publications & Guidance

Ordinary residence: resolving disputes in health and social care

Department of the Health and Social Care | 5 October 2023

The Department of the Health and Social Care (DHSC) has set out its position on the determination of ordinary residence disputes in light of the outcome of a recent landmark Supreme Court ruling.

‘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.

Modern-day ‘ASBOs’ highly discriminatory and fail to protect victims according to report

JUSTICE | 20 September 2023

JUSTICE has published a robust report, ‘Lowering the Standard: A review of Behavioural Control Orders in England and Wales’, which describes how the use of Behavioural Control Orders should not be seen as “a magic bullet” in addressing matters of public safety and security.

News

Pilot launched of information-sharing meetings between social workers and Cafcass Guardians ahead of first case management hearings

Local Government Lawyer | 5 October 2023

The Department for Education (DfE) has commissioned a pilot to test whether information-sharing meetings between social workers and Cafcass Guardians after the issuing of care proceedings but prior to the first Case Management Hearing would curb delays. The five-month pilot commenced in August and runs until December 2023.

Council obtains High Court injunction to secure compliance with improvement notices

Local Government Lawyer | 5 October 2023

The London Borough of Barking and Dagenham has been granted a High Court injunction in order to secure compliance with improvement notices served under the Housing Act 2004. In London Borough of Barking And Dagenham v Gbadegesin & Anor [2023] EWHC 2371 (KB), Mrs Justice Hill concluded that the leasehold owner of the property and the second defendant had shown “no intention” to comply with the notices and that “their disregard of it will continue unless restrained by an injunction”.

Local authority challenges Tribunal costs awards decision following specialist school legal battle

Local Government Lawyer | 29 September 2023

East Sussex County Council has submitted a request for permission to appeal a decision ordering it to pay school fees costs to the family of a young autistic boy.

High Court gives green light to challenge to Local Plan

Local Government Lawyer | 28 September 2023

A local activist group has gained permission from the High Court for a judicial review of Calderdale Metropolitan Borough Council’s local plan.

Judge set deadline for Home Office to transfer unaccompanied asylum-seeking children housed in Kent to local authorities

Local Government Lawyer | 27 September 2023

A High Court judge earlier this month (15 September) ordered the Home Office to take all possible steps to transfer unaccompanied asylum-seeking (UAS) children already housed in Kent hotels to the care of a local authority by Friday 22 September.

Borough council mulls legal action amid dispute with Southern Water over repeated raw sewage floods

Local Government Lawyer | 27 September 2023

Hastings Borough Council may consider legal action against Southern Water if it fails to respond to the council's demands concerning sewage problems that have caused a series of damaging floods in the town.

City council hit by equal pay claim with union suggesting some workers are underpaid by £11k a year

Local Government Lawyer | 26 September 2023

Thousands of women are set to launch an equal pay claim against Sheffield City Council, the GMB has revealed.

Judge rejects legal challenge over storm overflows discharge reduction plan

Local Government Lawyer | 21 September 2023

In Wildfish Conservation, R (On the Application Of) v Secretary of State for Environment, Food and Rural Affairs [2023] EWHC 2285 (Admin), the High Court has dismissed a series of challenges brought against the Secretary of State for Environment, Food and Rural Affairs over the lawfulness of August’s Storm Overflows Discharge Reduction Plan.

Private sector landlords demand court reform, saying it takes “far too long” to process legitimate possession claims

Local Government Lawyer | 21 September 2023

The National Residential Landlords Association has urged Lord Chancellor Alex Chalk to set out details of how courts will speed up their workflow once the Renters (Reform) Bill becomes law.

Step forward to online lasting powers of attorney

Ministry of Justice | 19 September 2023

The most vulnerable in society will be better protected as reforms to simplify and streamline lasting powers of attorney are given Royal Assent.

One in five listed judgments not published: research

Local Government Lawyer | 18 September 2023

The Incorporated Council of Law Reporting for England and Wales has said that not all courts and tribunals are routinely sending their judgments to The National Archives for publication.

The ICLR report noted that by the end of its first full year of operation, the ‘Find Case Law’ database operated by The National Archives was “largely achieving” its aim of routinely publishing new judgments from the senior courts and tribunals of England and Wales on the day they were handed down, or soon after.

High Court refuses second request by council for tree felling judicial review to be thrown out

Local Government Lawyer | 15 September 2023

Plymouth City Council has lost its latest bid to set aside legal proceedings brought by campaign group ‘Save the Trees of Armada Way’.

Almost all children deprived of liberty in national court subject to “constant supervision”

Local Government Lawyer | 13 September 2023

Almost all the children deprived of their liberty in the first 12 months of the National Deprivation of Liberty (DoLs) Court were subject to “constant supervision”, often by more than one adult, the Nuffield Family Justice Observatory (NFJO) has found.

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