30/04/2024
Welcome to the April 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
Procurement Act 2023 to go live on 28 October
As we finalise this month’s edition of LA View, the Cabinet Office has announced an intended “go-live” date of Monday 28 October 2024 for the new Procurement Act 2023.
So what will this mean for procurement practitioners and suppliers?
- The Procurement Act 2023 received Royal Assent on 26 October 2023 but is not yet “in force”
- “Working towards” a “go-live” of 28 October 2024 (this will be formalised in Commencement Regulations - which we understand will be passed in May)
- Secondary legislation containing extensive detail about transparency (the Central Digital Platform and the content of notices) has already been laid before Parliament and are expected any day now (to be the Procurement Regulations 2024)
- Technical Guidance being published from March through to June
- Government delivering training - Transforming Public Procurement.
One of the biggest tasks facing suppliers and contracting authorities will be registration on the new Central Digital Platform. This is where all notices will be published, including whether any exclusion grounds apply.
Each supplier will have to do this for themselves, and also any connected persons, as defined in the Procurement Act 2023.
If a procurement is going to be commenced after Go Live, there will still be planning to do to ensure that the post-Go Live procurement complies with the Procurement Act 2023. For example, the authority will need to ensure that the forthcoming procurement complies with obligations to have regard to the NPPS, the procurement objectives set out in the Procurement Act 2023, setting of KPIs and record keeping.
A full summary of the impact of the Act, can be accessed via this link.
As mentioned above, the government will be delivering training and guidance documents. However if you would prefer bespoke training for your organisation along with reference materials, please contact Emily Heard or find out more in our Talking Heads series.
Net Zero
Navigating the Impact of the Energy Act 2023: District Heating
In continuation of our article in last month’s LA View, we again delve deeper into the provisions of the Energy Act 2023 and its far reaching implications. In this month’s article we summarise some of the key issues regarding the district heating aspects of the Act.
Heat Networks Regulation
The Energy Act 2023 provides the legislative framework for the appointment of Ofgem as the heat network regulator. This appointment will help ensure fair prices, transparency, and high-quality service within the heat network sector. Ofgem's monitoring powers and intervention capabilities in pricing discrepancies should help to foster a resilient and consumer-friendly heat network sector.
The Energy Act 2023 creates a legislative framework to give Ofgem powers to:
- monitor compliance and take enforcement action where heat networks are not meeting the required standards
- investigate and intervene in relation to consumer prices, and
- grant licences that give heat network developers rights and powers similar to those held by other utilities including in relation to planning, street works licences and consents to install heat network infrastructure within the street.
Heat networks zoning
The Act empowers the government to implement heat network zoning in England, whereby central and local government will work with industry and local stakeholders to identify and designate areas where heat networks are expected to be the lowest-cost solution to decarbonising heat. Significantly, it will be mandatory for certain types of building within a zone to connect to a heat network.
Hydrogen heating trial
The Act facilitates a hydrogen heating trial under which a closed gas network would be converted to hydrogen with a view to assessing the feasibility, costs and benefit of using hydrogen for heating and cooking.
The Energy Act 2023 unfolds as a comprehensive legislative framework poised to reshape the UK's district heating sector. Understanding and navigating the intricacies of this legislation is paramount, as the energy landscape evolves.
If you would like to know how Bevan Brittan could help, please do get in touch with one of our Energy and commercial specialists Nadeem Arshad, Nathan Bradberry or Rupert Lugg.
Publications & Guidance
Domestic and Non-Domestic Renewable Heat Incentive Regulations: Approved Standards
Department for Energy Security and Net Zero | 04 April 2024
This bulletin lists:
- the current codes of practice, standards and calculators applicable in the Domestic Renewable Heat Regulations 2014
- the current standards and calculators applicable in the Non-Domestic Renewable Heat Incentive Regulations 2018
- any subsequent versions of these codes of practice, standards and calculators that have been approved by the Secretary of State for use in both Renewable Heat Incentive schemes as set out in:
- The Domestic Renewable Heat Incentive Regulations 2014 Regulation 2B
- The Non-Domestic Renewable Heat Incentive Regulations 2018 Regulation 18 Regulation 47A
National Energy System Operator (NESO) Licences and Other Impacted Licences: Statutory Consultation
Ofgem | 28 March 2024
Ofgem has, in conjunction with the Department for Energy Security and Net Zero, launched a statutory consultation on National Energy System Operator (NESO) licences. Views are being sought on the proposal to grant Electricity System Operator and Gas System Planner licences to the NESO company when created. This includes the licences, new roles, financial design and incentives, and consequential changes to other licences.
Net Zero Moves Closer with New Guidance for Carbon Storage Industry
The North Sea Transition Authority (NSTA) | 28 March 2024
The North Sea Transition Authority (NSTA) has) published two sets of guidance which will help the developing carbon storage industry.
The first publication, (Guidance for Measurement of Carbon Dioxide for Carbon Storage Permit Applications), provides licensees with information on NSTA expectations regarding the proper measurement of CO2 being injected in a storage site and suggestions on how that can be achieved.
The second set of guidance, (Requirements for the definition of a carbon storage site, storage complex and hydraulic unit), provides clarity on determining the extent of subsurface storage site and focus for licensees on the area they must manage to prevent/detect leakage.
Annual Statement of Emissions for 2022
Department for Energy Security and Net Zero | 25 March 2024
The Department for Energy Security and Net Zero (DESNZ) has published the annual statement of emissions for 2022, as required by section 16 of the Climate Change Act 2008. The purpose of the statement is twofold: first, it shows the total amount of UK GHGs emitted to and removed from the atmosphere in the base year, 2021, and 2022; the methods used to calculate those figures; and whether there was an increase or a decrease in emissions and removals between 2021 and 2022. Second, this statement sets out the steps taken to calculate the “net UK carbon account” for 2022 The net UK carbon account is used to determine whether the carbon budgets are being met, but not exceeded at the end of each budgetary period.
Phase 5 Public Sector Low Carbon Skills Fund
Department for Energy Security and Net Zero | 17 March 2024
Phase 5 of the Public Sector Low Carbon Skills Fund will provide up to £16m of grant funding for public sector organisations to engage the specialist and expert advice and skills required to create robust heat decarbonisation plans to prepare for heat decarbonisation and energy efficiency works. The scheme will be delivered in the 2024/2025 financial year.
Successful applicants will be required to complete their funded activity by March 31 2025.
You can submit your applications for Phase 5 of the scheme between 2pm on 17 April 2024 and 2pm on 1 May 2024.
The scheme guidance, eligibility criteria and application forms are now available on the Salix Finance website.
Hydrogen Heating: Overview
Department for Energy Security and Net Zero | 18 March 2024
An overview of hydrogen heating and the community trials being carried out by government. The hydrogen heating overview explains the role that hydrogen can play in decarbonising heat in the UK. The article considers the following topics:
- Building the evidence base for hydrogen heating
- The H100 Fife neighbourhood trial
- How the Government will make the decision on hydrogen heating
- Safety
- International activity and research
Decarbonising Home Heating Report
The National Audit Office | 18 March 2024
This report examines the progress DESNZ has made in decarbonising home heating since the government published its Heat and Buildings Strategy in 2021, including whether it has established a clear pathway to decarbonising home heating in a way that is value for money. The Report includes recommendations on the pathway and the deployment of heat pumps.
Review of Electricity Market Arrangements (REMA): Second Consultation
Department for Energy Security and Net Zero | 12 March 2024
This consultation seeks views on a narrowed range of options to deliver an enduring electricity market framework which moves away from fossil fuels and one that will work for businesses, industry, and households.
The consultation considers the following challenges:
- Passing through the value of a renewables-based system to consumers
- Investing to create a renewables-based system at pace
- Transitioning away from an unabated gas-based system to a flexible, resilient, decarbonised electricity system
- Operating and optimising a renewables-based system, cost-effective
- Options compatibility and legacy arrangements
This second consultation is an opportunity to provide feedback to government on the ongoing review of electricity market arrangements (REMA). This consultation closes at 11:59pm on 7 May 2024
Energy Code Reform: Code Manager Licensing and Secondary Legislation - Open Consultation
Department for Energy Security and Net Zero | 11 March 2024
The Department for Energy Security and Net Zero and Ofgem are seeking views on governance code reform which dictate participation in gas and electricity markets.
The existing code governance arrangements were successful when dealing with an energy system that was more predictable and primarily subject to incremental changes over time. However, the Competition and Market Authority’s (CMA) 2016 Energy Market Investigation found that the current system of energy code governance was having an adverse effect on competition, stemming from, among other things, conflicting interests, lack of incentives to carry out policy changes, and Ofgem’s limited ability to influence the code change process. This consultation closes at 11:59pm on 5 May 2024.
News
UK-First for Runcorn Energy Facility Leading The Way To Net-Zero
Runcorn and Widnes World | 4 April 2024
A Runcorn resource recovery and recycling business has become the UK’s first negative emissions project to progress to the next stage.
Viridor is a leading resource recovery and recycling business that has 11 locations across the UK. The company has been working on a negative emissions project at its Runcorn energy recovery facility, which generates electricity from waste which cannot be easily recycled or reused. Viridor will now progress the project to the next stage after agreeing a statement of principles with the UK Government’s Department for Energy Security and Net Zero.
New Tool to Help Local Authorities Site Solar And Wind Projects
Air Quality News | 2 April 2024
A new tool has been created that will allow local authorities across London and the South East to identify where best to locate new green energy projects such as wind and solar farms.
This project has been led by Anglia Ruskin University and University of East Anglia, supported by UK Power Networks’ Distribution System Operator (DSO) and the Greater South East Net Zero Hub. The tool combines spatial and land use datasets for ground-based solar PV and onshore wind, over 18,000m², taking into account relevant details such as Areas of Outstanding Natural Beauty and solar irradiance data, along with the existing local electricity network.
UK Half Way To Net Zero
Department for Energy Security and Net Zero | 28 March 2024
Provisional data shows UK territorial greenhouse gas emissions fell further across several key sectors between 2022 and 2023.
DESNA reports that the UK is now half way to net zero as emissions have been cut by 53% between 1990 and 2023 or 50% when including emissions from international aviation and shipping. Further electricity supply and homes show big decline in emissions, as country shifts to renewable energy sources
The reports surpassed last March’s official 2022 data that saw the UK become the first major economy to halve its emissions, while growing the economy by around 80%.
Heat pumps in demand as grant applications soar by 75%
Department for Energy Security and Net Zero | 28 March 2024
New figures show applications to the government's heat pump grant rose by 75% in February compared to the same month in 2023. Families can receive grants of £7,500 off installation, making Boiler Upgrade Scheme one of the most generous in Europe. This release by the Government follows announcement of upcoming changes to scheme which will make heat pumps cheaper and easier to install.
Bradford Courts Sign up To City’s New Energy Network
Air Quality News | 26 March 2024
HM Courts and Tribunals Service has signed a 20-year agreement to connect to the £70m Bradford Energy Network, which will prevent 8,000 tonnes of carbon dioxide being emitted. The heat network is being funded partly through the Green Heat Network Fund, a source of grant funding from the Department for Business, Energy and Industrial Strategy, and partly through private investment from 1Energy.
When it begins operating in 2026 it will become the UK’s largest low-to-zero carbon district heating network.
Prioritisation Of Electricity Transmission Network Charging Reforms
Ofgem | 21 March 2024
Ofgem has released an open letter which sets out its prioritisation of activities for the remainder of 2024 on electricity transmission network charging reforms, and their view on the most appropriate vehicles for these reforms.
The letter highlights Ofgem’s views of Use of System Charges. It also welcomes industry proposals on the Connections Action Plan, Offshore Transmission Network Review and Holistic Network Design.
National Grid Unveils £60bn Investment Plan to Turbocharge Net-Zero Power Grid
Edie | 19 March 2024
The National Grid’s Electricity System Operator (ESO) has unveiled a new £60bn investment plan to fast-track Britain’s transition to a net-zero power grid by 2035 by boosting clean energy jobs and growing the offshore wind sector.
The plan would seek to connect an additional 21GW of offshore wind off the coast of Scotland to the grid in an efficient and coordinated way, delivering a world-leading offshore wind sector with more than 86GW of capacity.
Low heat pump uptake slowing progress on decarbonising home heating
National Audit Office | 18 March 2024
Boiler Upgrade Scheme has achieved lower than expected uptake. Government expects to see an eleven-fold increase in heat pump installations by 2028 based on optimistic assumptions.
NAO report recommends steps for DESNZ to improve heat pump rollout as well as calling for earlier clarity over the role of hydrogen in home heating.
Yorkshire GREEN development consent decision announced
Planning Inspectorate | 14 March 2024
The Yorkshire GREEN application has been granted development consent by the Secretary of State for Energy Security and Net Zero. This is the 134th Nationally Significant Infrastructure Project and 79th energy application to have been examined by The Planning Inspectorate within the timescales laid down in the Planning Act 2008. The Examining Authority, tasked to consider input from stakeholders, listened and gave full consideration to all local views and the evidence gathered during the Examination before making its recommendation to the Secretary of State.
Liverpool Unveil Plans for World’s Largest Tidal Range Scheme
Air Quality News | 12 March 2024
Liverpool City Region’s Mayor Steve Rotheram has unveiled plans to build the world’s largest tidal scheme between the Wirral and Liverpool, for the city region’s flagship Mersey Tidal Power project.
The barrage scheme would be the first of its kind in the UK and could generate clean, predictable energy for 120 years and create thousands of jobs in its construction and operation. The design also incorporates a first-ever cycling and pedestrian route over the river between Liverpool and Wirral and could also provide a defence against future flooding risks associated with climate change.
Energy Secretary Takes Action to Reinforce UK Energy Supply
Department for Energy Security and Net Zero | 12 March 2024
In a plan set out on Tuesday 12 March 2024, the government committed to support the building of new gas power stations to maintain a safe and reliable energy source for days when the weather forecast doesn’t power up renewables.
£7.6m to explore renewable heating technologies
Air Quality News | 8 March 2024
Addressing the fact that 23% of total emissions in the UK are generated from heating 30 million buildings, Innovate UK ran a competition, Design Engineering Innovation Lab, to invest in the development of innovative renewable heating technologies that can be scaled across the UK. Three projects have been awarded funding from Innovate UK to research and develop more sustainable solutions for heating. The projects are:
- Let Zero: for its efforts to work with landlords in the private sector to improve decision-making on renovations and improvements in their properties for the benefit of their tenants, especially vulnerable people.
- Transform ER: for its project that aims to help deliver retrofit solutions to one million homes per year by 2030
- Elemental Power: for a project that aims to transform how retrofits are carried out on non-domestic buildings in the UK.
Delivering Value
Ten year enforcement period for unauthorised development comes into force
The Town and Country Planning Act 1990 – new enforcements as of 25 April
The Levelling-up and Regeneration Act 2023 brought a raft of changes to planning law. Provisions have gradually been coming into force, and most recently (in the Government’s fourth set of Regulations on the Act) the changes to the enforcement period for unauthorised development are coming into force.
Building, engineering, mining or other operations and conversion of a building to use as a single dwelling house carried out without planning permission become immune from enforcement action after a certain time period, under The Town and Country Planning Act 1990.
This time period has been four years commencing after the operations have been substantially completed or the conversion occurred – but from 25 April 2024, this period becomes ten years. This matches the existing ten year enforcement period for breaches of any other planning control (e.g. other changes of use or breaches of conditions).
The practical implication is that any such operation or conversion carried out without planning permission that was not substantially completed or converted before 25 April 2024, will be at risk of enforcement action for ten years from the date of substantial completion or conversion.
Other amendments coming into force on 25 April include increases to financial penalties for non-compliance with some planning enforcement offences and limitations on the scope of appeals against enforcement notices.
The extension to the enforcement period is significant, and should be kept in mind by those who are unsure about the lawfulness of a development – in particular lenders or prospective purchasers.
If you are unsure, please contact a member of our planning team who will be happy to assist.
Publications & Guidance
Open call for evidence: Duty of candour review
Department of Health & Social Care | 16 April 2024
This call for evidence forms part of a review by the DHSC to consider the operation (including compliance and enforcement) of the statutory duty of candour for health and social care providers in England. This call for evidence closes at 11.59pm on 29 May 2024.
Transparency in health and social care
Information Commissioner’s Office | 16 April 2024
The ICO has published new guidance to help organisations that process health and social care information to understand our expectations about transparency.
Ofsted updates inspection complaints policy
Ofsted | 5 April 2024
Ofsted has reported that it has updated its policies for making complaints about inspections and for pausing inspections. The new complaints policy comes into effect on 5 April 2024 and applies to all inspections and regulatory activities after 4 April 2024.
DHSC updates statutory guidance on Care Act 2014
Department of Health & Social Care | 28 March 2024
DHSC has updated the care and support statutory guidance on the Care Act 2014. This update reflects new capital and income disregards, and clarifies the position around occupational pensions and personal pensions annuities paid to a spouse or civil partner.
News
Rebuilding local services key to restoring trust, says think-tank
Public Finance | 23 April 24
Only 25% of voters trust the government to act in their interests, finds LGIU.
Productivity plans criticised as ‘diversion tactic’ ahead of election
LGC | 19 April 2024
Productivity plans are a "diversion tactic" from central government to "change the narrative" ahead of the general election, local government figures claim. Local government minister Simon Hoare wrote to council chiefs on Tuesday asking them to "formally begin" compiling productivity plans, which were first proposed in the as part of this year's financial settlement.
DLUHC will not make 'league table' out of productivity plans
LGC | 18 April 2024
The government will not "rate or score" council productivity plans or create "any kind of league tables", a letter to chief executives has revealed. Local government minister Simon Hoare wrote to council chiefs on Tuesday asking them to "formally begin" compiling productivity plans.
New DfE group to examine ‘unacceptable profiteering’ in social care
LGC | 17 April 2024
A governmental advisory group on “unacceptable profiteering” in residential children’s services will meet for the first time this week, the DfE has revealed. Director General for families at the DfE Justin Russell told attendees at the Association of Directors of Children’s Services reception yesterday that former president Steve Crocker will be chairing a new advisory group on the private sector’s involvement in the children’s social care market.
Fighting for the children
MJ | 16 April 2024
The new leader of England’s children’s services chiefs showed his mettle early when he praised moves to crack down on offshore firms providing council-commissioned services.
Councils placed 706 children in unregulated homes in 2022-23, report finds
Local Government Lawyer | 16 April 2024
Hundreds of vulnerable children in England are being sent to homes not registered with Ofsted every year because of a “chronic shortage” of places in secure local authority units, an investigation by The Observer has revealed.
Ministers to make more changes to debt rules
MJ | 12 April 2024
Ministers are poised to impose immediate further changes to local government debt rules – including stricter in-year reporting of unpaid loan repayments due to town halls. In its final response to consultations on councils’ minimum revenue position (MRP), the DLUHC said it would introduce from next month a further requirement on councils - designed to mitigate the risk of financial failures.
Labour plans to speed up bus franchising to ‘kickstart revival’ in local services
Public Finance | 11 April 24
Local leaders would be given greater power over funding and franchising bus services under plans set out by Labour.
Council parking income set to top £2bn
LocalGov | 10 April 2024
English Councils received nearly £2bn in income from on and off-street parking in 2022-23, but paid out nearly £1bn in running and enforcement costs.
Children’s Homes Association blocks ‘organisations involving tax havens’
LGC | 8 April 2024
The Children’s Homes Association has banned members that have connections to tax havens. From 6 April all members must be “ultimately owned in the UK”, have “wholly or majority shareholders who are registered as a UK taxpayer” and must not “receive loans or investments.
We need interventions to address “failing” market system for children’s residential provision, ADCS President tells MPs
Local government Lawyer | 27 March 2024
The President of the Association of Directors of Children’s Services has called for interventions to address what he describes as a “completely failing market system” for children’s residential provision.
Place & Growth
MoJ to increase court fees by 10% from May 2024
Following the Ministry for Justice’s (MoJ) “Implementing Increases to Selected Court and Tribunal Fees” consultation, it has been confirmed that the MoJ will be increasing court fees by 10% from May 2024. These increases will affect all landlords, including local authorities as housing providers.
This is the first time fees have increased since September 2021 and it is hoped that fee increases will “help to maintain the courts and tribunal systems while also reducing the cost to the taxpayer”. The government will review the fees every two years (with the next review taking place in 2025 / 2026) to “align with other parts of the public sector” and to ensure “fees reflect the costs of providing court and tribunal services”.
Some of the fee increases which may affect landlords include:
- An application for the recovery of land (i.e. possession) will increase to £391
- Issue of a warrant of possession or warrant of delivery will be £143
- Making an application within proceedings (either by consent or without notice) will now cost £29
Other fee increases see the Urgent High Court Possession Order fee rise to £626 and a general application fee rising to £119. A full list of the fee increases can be found here.
Should you require any further help and guidance, please contact Kate Hicks or Stephanie Atkins who will be happy to assist.
Publications & Guidance
Locally-led Development Corporation: A consultation paper
Department for Levelling Up, Housing & Communities | 10 April 2024
Locally-led Development Corporation: A consultation paper
This consultation seeks views on draft Regulations in relation to how an oversight authority is to oversee a Locally-led Urban Development Corporation following its designation.
RSH adds four new statutory guidance notes to collection under HRA 2008
Regulator of Social Housing | 4 April 2024
The Regulator of Social Housing has added four new guidance notes to the statutory guidance collection. Guidance note 20: Direction to the Homes England or Greater London Authority; Guidance note 21: Financial Assistance; Guidance note 22: Information; and, Guidance note 23: Transfer of Property. All apply from 1 April 2024.
Pavement licences: guidance
Department for Levelling Up, Housing and Communities | 2 April 2024
Guidance to accompany pavement licensing introduced in the Business and Planning Act 2020. The news was announced in a letter to all council leaders and chief executives of English local planning authorities.
RSH publishes collection of regulatory standards for landlords
Regulator of Social Housing | 2 April 2024
A collection of regulatory standards for social housing landlords in England consisting of consumer standards and economic standards. The consumer standards include neighbourhood and community standard, plus a tenancy standard both updated to reflect changes to consumer standards from 1 April 2024. It also includes safety and quality standard, transparency, influence and accountability, and the consumer standards Code of Practice.
Follow up report: Spotlight on noise complaints – Time to be Heard
Housing Ombudsman Service | April 2024
This follow-up report summarises evaluation of the Spotlight on noise complaints, Time to be Heard, which was published in October 2022.
Consultation launched on Housing Ombudsman’s proposed approach to Good Practice
Housing Ombudsman Service | 26 March 2024
The Housing Ombudsman has launched a consultation for social housing landlords on its proposed approach for issuing Good Practice and potential topics. The consultation closes on 24 May 2024.
HOS publishes latest Complaint Handling Failure Order report
Housing Ombudsman Service | 21 March 2024
The HOS has published its latest Complaint Handling Failure Order report covering the period October to December 2023. It was noted that there was a significant reduction in the number of CHFOs issued. The report also includes examples to support improving complaint handling and compliance with orders. HOS has also shared key lessons prior to the Complaint Handling Code becoming statutory on 1 April 2024.
Cases
Failure to consider Cafcass report in reviewing suitability of accommodation (Querino v Cambridge City Council)
Local Government Lawyer | 9 April 2024
The Court of Appeal has allowed an appeal by Cambridge City Council over whether it was justified in offering the claimant/respondent accommodation with one bedroom despite him wanting a home large enough for his children to stay overnight when visiting.
News
Welsh Government failing to ensure councils meet duties regarding gypsy and traveller sites, Ombudsman says
Local Government Lawyer | 5 April 2024
The allegation follows the conclusion of an investigation into two complaints concerning 'Gypsy and Traveller Accommodation Assessments' (GTAAs). According to the Ombudsman, the Welsh Government did not monitor approved GTAAs between January 2020 and the time it conducted its investigation into the complaint.
Councils do not believe planning policy proposal will boost brownfield development
Local Government Lawyer | 2 April 2024
The Local Government Association has questioned government proposals to amend the National Planning Policy Framework in order to encourage development on brownfield land.
Governance & Reorganisation
In the news
Another round of local authority elections will undoubtedly see changes in political make-up, and in consequence the allocation of seats on committees. Calculating allocations on the basis of political proportionality (for those committees to which the Local Government and Housing Act 1989 applies) can be a very technical and difficult exercise, and one which it is very easy to get wrong, with heavyweight consequences. One common mistake is to include the statutory licensing committee as an ‘ordinary committee’. An ‘ordinary committee’ is defined in paragraph 4(1) of Schedule 1 of the 1989 Act, as being any committee appointed under section 102(1)(a) of the Local Government Act 1972 – the statutory licensing committee is not however an ordinary committee – it is instead appointed under section 6 of the Licensing Act 2003.
In other news, at the end of March the courts gave a salutary reminder to all that, if consultation is to be undertaken, then it must “give sufficient information to permit intelligent consideration and response”.
Here the Secretary of State had intended to subsume the role of the Police and Crime Commissioner into that of the Metro-Mayor for the West Midland Combined Authority. Power to do so derived from amendments made to the Local Democracy, Economic Development and Construction Act 2009 by the new Levelling-Up and Regeneration Act 2023, subject to consultation taking place. This was challenged by the incumbent PCC before the High Court, which found the consultation wanting. The Secretary of State sought permission to appeal, which was refused on the basis that the Court of Appeal was unable to say that the High Court’s judgement was "wrong... in setting out the steps for a lawful consultation in the particular circumstances of this case".
The result being that the planned transfer before this May’s elections cannot go ahead. The judgment can be read at Secretary of State for the Home Department v Police and Crime Commissioner for the West Midlands [2024] EWCA Civ 367.
The Gunning principles on consultation are clear, but their application continues to create issues for local and central government alike.
Publications & Guidance
Economic Activity of Public Bodies Bill, Committee Stage, House of Lords, Amendments briefing
Local Government Association | 12 April 2024
LGA states it does not expect the Bill to have any significant effects on local authority investment or procurement practices. However, there are significant concerns about the effects the current drafting will have on the operation of the Local Government Pensions Scheme (LGPS).
ADSO’s response to the consultation on the Code of Practice on Good Governance for Local Statutory Officers
Association of Democratic Services Officers | 10 April 2024
In broad terms, ADSO welcomes the content of the draft Code. In making this submission, ADSO strongly believes that the title of Monitoring Officer is no longer adequate in describing the functions of the role and recommends that it be renamed in legislation as the Chief Governance Officer.
LGA submission to DLUHC’s consultation on a direction to the Regulator of Social Housing to set a Competence and Conduct Standard for social housing
Local Government Association | 8 April 2024
We support the overarching principle of the Standard which will ensure councils will have a policy in place to manage and develop the skills, knowledge, experience and conduct of their staff. We do however have concerns about the practical implementation particularly in relation to the qualification requirements.
PSFA publishes Government Counter Fraud Functional Strategy 2024-2027
Public Sector Fraud Authority | 14 March 2024
The PSFA has published the Government Counter Fraud Functional Strategy 2024–2027. The Strategy sets out the Government Counter Fraud Function’s mission and strategic objectives in order to understand, find and stop fraud against the public sector.
Cases
Council loses appeal over FOI request for names of those who submitted consultation responses as part of their public-facing roles
Local Government Lawyer | 15 April 2024
Cambridgeshire County Council must release the names of individuals in a public-facing role, including councillors and officials, who submitted consultation responses on behalf of stakeholder groups, despite a promise in the consultation document that said the local authority would not publish any personal details.
News
Oflog remit should be extended to local government audit, CIPFA CEO suggests
Local Government Lawyer | 16 April 2024
The chief executive of CIPFA, Rob Whiteman, has said Government plans for Oflog will leave the new body with a "limited scope" and has suggested the regulator would be better placed as system leader for local government audit.
Legal risks are keeping Government bodies from embracing AI, survey shows
Local Government Lawyer | 15 March 2024
Fears over the legal risks of using Artificial Intelligence (AI) are acting as a barrier to Government bodies adopting the technology, a National Audit Office (NAO) report has revealed. The survey showed that AI is not yet widely used across government, with just over a third of the 87 responding bodies (37%) having already deployed AI, with typically one or two use cases
Investigation recommends governance changes after report criticising business case for £750k acquisition by council of former pub site
Local Government Lawyer | 14 March 2024
Middlesbrough Council’s former elected mayor and chief executive led a decision to buy a former pub for £750,000, which remains in a derelict state and may need £5.5m of structural works. An investigation by Veritau, has concluded this was done with only a superficial business case. Veritau’s investigation report said the former Crown pub is a heritage asset and has stood empty since 2015 and deteriorated significantly.
Contract Management
Letters of Intent and how not to use them
The article from VanWyck Johnson, Legal Director at Bevan Brittan, looks at CLS Civil Engineering Limited v WJG Evans and Sons (a partnership) [2024] EWHC 194. Whilst this case focuses on the construction industry, the principle and message behind it applies equally to letters of intent and commercial cover in other commercial contracting arrangements including goods and services, consultancy and technology contracts.
The case is another reminder of risks involved with letters of intent and that parties need to tread carefully when using them. It is important to agree the terms and conditions of a building contract before a letter of intent is entered into as the terms and conditions of the building contract will govern any works carried out under the letter. A clear maximum liability preferably linked to specific activities, such as placing orders or site mobilisation, and an expiry date are useful items to include in a letter of intent, if for no other reason than to encourage the parties to button up the building contract and put it in place.
Legislation
Procurement Regulations 2024, SI 2024/Draft
legislative.gov.uk | 26 March 2024
These draft Regulations are proposed to implement the new public procurement regime established by the Procurement Act 2023.
Publications & Guidance
Procurement Act 2023 guidance documents
Cabinet Office | 12 April 2024
The Cabinet Office has published the second set of guidance documents in relation to the Procurement Act 2023. These guidance documents cover all aspects of the Act and provide help with interpretation and understanding.
How to prepare for the Procurement Act 2023 – Procurement Essentials
Crown Commercial Service | 8 April 2024
The Crown Commercial Service (CCS) has published guidance for public sector buyers on how to prepare for the new regulations being created under the Procurement Act 2023.
Procurement Policy Note provides updated Standard Selection Questionnaire
Cabinet Office | 27 March 2024
The Cabinet Office has published Procurement Policy Note 03/24: Standard Selection Questionnaire (SQ) providing contracting authorities with guidance on the updated standard SQ and accompanying statutory guidance.
Procurement Act 2023 Guidance Documents
Cabinet Office | 26 March 2024
The Cabinet Office has published the first suite of guidance documents in relation to the Procurement Act 2023. It provides technical guidance and help with interpretation and understanding of PA 2023 and is aimed at procurement practitioners and commercial policy leads in contracting authorities.
Procurement Policy Note provides guidance on AI in procurement
Cabinet Office | 25 March 2024
The Cabinet Office has published Procurement Policy Note 02/24: Improving Transparency of AI use in Procurement. PPN 02/24 directs contracting authorities to guidance and best practice for use of AI in procurement and provides a set of optional questions to help identify the use of AI in procurement and in the delivery of government services.
Cabinet Office updates PPN 02/23 to reflect new Global Slavery Index
Cabinet Office | 25 March 2024
The Cabinet Office has updated the Procurement Policy Note 02/23: Tackling Modern Slavery in Government Supply Chains to reflect publication of the 2023 Global Slavery Index.
Government response to consultation on draft regulations implementing the Procurement Act 2023
Cabinet Office | 22 March 2024
The Cabinet Office has published the government’s response to the second part of the consultation on the draft regulations implementing the Procurement Act 2023. The government has noted that it will refine drafting of the statutory instrument (SI) to improve structure and clarity of the SI, as recommended in the consultation.
Cases
High Court dismisses procurement challenge over rejection of bid for non-compliance
Local Government Lawyer | 11 April 2024
The Department for Work and Pensions (DWP) did not act improperly when it excluded a non-compliant bid from a tender process, the Technology and Construction Court has found.
News
Council did not appear to conduct competitive procurement exercises for £500k social media payments, director of legal says
Local Government Lawyer | 19 April 2024
An investigation into £500,000 worth of payments made by Essex County Council for social media campaigns has been unable to find what the selection process was like for awarding the work or whether there was a competitive process involved
Disputes & Regulatory Support
School successfully defends challenge to prayer ban
Case Review: R (TTT) v Michaela Community Schools Trust, the High Court
In R (TTT) v Michaela Community Schools Trust, the High Court considered a judicial review application brought by a student at Michaela School, challenging its decision to implement a policy prohibiting pupils from performing prayer rituals on its premises. The Claimant wished to pray during the school lunch break.
The judgment covers a number of areas relevant to schools and local authorities, including Article 9 of the European Convention on Human Rights and the right to freedom of thought, belief and religion, the public sector equality duty, indirect discrimination and fixed term exclusions, and provides helpful summaries of the key principles.
On the issue of whether the school’s policy was a breach of the Claimant’s right to freedom to manifest her religious beliefs under Article 9, the Court did not accept there had been an interference with the Claimant’s Article 9 rights, as she had impliedly accepted when enrolling at the school, which is a secular school, that she would be subject to restrictions on her ability to manifest her religion. Even if there had been an interference, the restriction would have been proportionate in light of the policy’s aims (including the “Team” ethos, inclusivity and social cohesion) and the extent to which it is likely to achieve those. The Claimant also argued that the policy indirectly discriminated against Muslim pupils contrary to the Equality Act 2010. On this, the Court accepted the claimant was subject to a detriment, but again found the policy was a proportionate means of achieving a legitimate aim. On the Claimant’s argument that the school had failed to have due regard to the public sector equality duty, the Court found that although there was no specific reference to this duty in the relevant briefing notes or minutes, it was satisfied that the governing body had due regard to the duty and in substance the relevant statutory needs had been considered. Finally, the Claimant argued that the two fixed term exclusions were procedurally unfair as she was not given an opportunity to respond to the allegations against her before a decision was made. The Court found the second exclusion was procedurally unfair as the school had failed to have regard to the statutory guidance or the school’s policy on exclusions, and had acted inconsistently with those policies.
If you have any queries relating to the issues raised in the case, please contact Olivia Carter or Hannah Bergin.
Publications & Guidance
MoJ amends guidance on civil proceedings in magistrates’ and Crown Courts
Ministry of Justice | 8 April 2024
Updated guidance covering Magistrates’ Courts (Amendment) Rules 2024 and Crown Court (Amendment) Rules 2024. These Rules amend the Magistrates’ Courts Rules 1981 and the Crown Court Rules 1982.
Cases
Residents who lost their homes due to fire launch High Court claim against developer and housing association
Local Government Lawyer | 18 April 2024
Fifty victims of a fire in south-west London in 2019 have this month issued a High Court claim against Metropolitan Thames Valley (MTVH) housing association and house builder St James.
Appellant wins High Court dispute over right to buy council flat
Local Government Lawyer | 18 April 2024
A rabbi who mostly lived away from his council flat was still entitled to buy it from the London Borough of Hackney since the council could not establish that his main place of residence was elsewhere.
Judges allow appeal over flawed reasoning in fact-finding judgment
Local Government Lawyer | 16 April 2024
The Court of Appeal have allowed a challenge by the parents of a young girl to a finding made in care proceedings that, when she was a small baby, she suffered an abusive head injury inflicted by one or other of the parents.
High Court gives green light to challenge "overreaching” local energy efficiency standards guidance
Local Government Lawyer | 15 April 2024
The High Court has agreed to hear a judicial review claim challenging guidance from the Department for Levelling Up, Housing and Communities that puts limitations on how councils should set local energy efficiency standards for housing that go beyond national regulations.
Severe neglect and failure to remove claims
Local Government Lawyer | 15 April 2024
A recent High Court case shows that there is still scope for arguable failure to remove claims. The recent decision of Hill J in SZR v Blackburn with Darwen Borough Council [2024] EWHC 598 (KB), shows that there is a route to a successful failure to remove claim in cases of severe, persistent neglect.
High Court finds Westminster housing policy indirectly discriminatory towards women needing to move to escape violence
Local Government Lawyer | 9 April 2024
A claimant has won a judicial review challenge in the High Court over Westminster City Council’s decision to refuse to agree to her request for a "reciprocal transfer" into accommodation in its area. It was found that the relevant aspects of Westminster’s Housing Allocation Scheme February 2023 were indirectly discriminatory contrary to s19 and s29 Equality Act 2010.
Disabled claimant loses judicial review challenge over alleged inaction by council in addressing noise and smells
Local Government Lawyer | 10 April 2024
A woman with a heightened sensitivity or hypersensitivity to noise and to smell has lost a judicial review in the High Court after Mr Justice Murray decided there was nothing more the Royal Borough of Kensington & Chelsea (RBKC) could reasonably have done to relieve the situation.
Court of Appeal rejects distinction between ‘aggressive’ and ‘passive’ begging when it comes to obtaining anti-social behaviour injunctions
Local Government Lawyer | 14 March 2024
Legislation on anti-social behaviour does not distinguish between aggressive and passive begging in determining whether an offence has been committed, the Court of Appeal has ruled.
Resources Library
All Bevan Brittan articles and news
Lancashire Schools SPC Phase 2 Ltd v Lendlease Construction (Europe) Ltd [2024] EWHC 37 (TCC|
Interim declarations in the Court of Protection: a new approach
Processing Biometric Data: Key considerations for your organisation
Events
Have you registered for…
Online - 7 May, 12.30 – 1.30pm
Learning from coroners Prevention of Future Death reports – A platform to learn lessons following inquests
Online - 15 May, 12.30 – 1.30pm
Prosecuting Successfully – Practical Lessons and Insights
In person - 22 May, 7.15 – 9.15am | Free To Attend
Breakfast Seminar at UKREiiF - UKREiiF Electric Vehicle Charging Infrastructure Breakfast
Online - 4 June, 10.00 – 11.00am
Achieving your objectives within the subsidy control regime: a legal and economics perspective
In partnership with Economic Insights
Online - 6 June, 12.30 – 1.30pm
Naughty, naughty – breaching orders in the Court of Protection
