Local Authority View #61

Welcome to the March 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

Deprivation of Liberty – reducing the cost of applications

Local authorities will now be well accustomed to engaging with the Court of Protection on behalf of vulnerable people. The Court of Protection is needed to authorise a deprivation of liberty for anyone who is aged 16 or over living in community setting and receiving a package of care, regardless of whether this is contested or not. The responsibility for obtaining the authorisation lies with the commissioner; in some cases, this may be an Integrated Care Board (or may be joint with an ICB) but in many cases, the responsibility will lie with the local authority. 

In response to concerns about the costs of applications for the approval of community placements in which there is no disagreement about suitability, the Court of Protection set up the streamlined process which can approve these placements without contested hearings.

The streamlined process, however, is not without costs – and without pressures on staff. The application documents still have to be drafted, court fees still have to be paid and applications still have to be processed. In order for the Court to consider the application, the local authority needs to provide The normal cost of such an application, even if managed and undertaken by a junior lawyer could easily run to several thousand pounds per case and for a typical organisation making fifty applications per year, this could cost easily over £250,000. It is important that the Court is given the correct information and correct documentation to be able to consider the application or further time may be required and more costs incurred. 

In response to this, we have created a secure, web based portal service to streamline and simplify the process. Front-line staff complete a questionnaire which guides them through what information is required. Early advice is provided to confirm whether the case is suitable for processing through the portal. The portal enables local authorities to determine how much of the work will be undertaken by their teams and how much will be carried out by Bevan Brittan.  

Once the documentation is finalised, this is reviewed by a qualified lawyer prior to submission to the Court. The portal also offers a tracking and review facility so that local authorities can monitor their applications and see where in the process these are. 

Of particular benefit, the portal process is a fixed fee process and can reduce the overall cost for these applications by around 80% when compared to the costs of applications being managed by a junior lawyer. 

If you would like to learn more about this service, please contact us.

Amrita Hurst, Partner

Net Zero

Navigating the Impact of the Energy Act 2023: Carbon Capture and Hydrogen

The Energy Act 2023, having received Royal Assent on 26 October 2023, represented a landmark legislative overhaul with profound implications for the UK's energy sector. It is a significant milestone designed to address the dynamic energy sector's evolving needs and promote sustainability.

In this article we summarise some of the key issues regarding the carbon capture and hydrogen aspects of the Act.  These new powers and regulations will support in the continued evolution of the hydrogen and CCS such projects keeps pace with the markets aspiration for delivering a robust hydrogen and CCS system and economy.

Low Carbon Business Model

Acknowledging the symbiotic relationship between government funding and private sector investment, the Energy Act 2023 seeks to establish a sustainable commercial framework ensuring long-term revenue certainty for low carbon projects. Introducing innovative business models, the Act aims to incentivize private investments in low-carbon industries, ensuring a collaborative approach to fostering environmental sustainability.

Industrial Carbon Capture and Low Carbon Hydrogen

Granting significant powers to the Secretary of State, the Act allows for expenditure and financial assistance, supporting the establishment of CCUS and low carbon hydrogen production. This proactive stance underscores the government's commitment to propelling advancements in cleaner energy technologies, bridging the gap between policy and practical implementation.

Hydrogen Transport and Storage

Empowering the Secretary of State to designate a counterparty for contracts with hydrogen transport and storage providers, the Act outlines a comprehensive framework. Extending the financial support mechanism of the hydrogen production levy to allow for revenue support for hydrogen transport and storage as well as enabling the allocation of a regulated asset base (RAB), overseen by an independent regulator, to facilitate and support the financing of certain hydrogen and CCS pipeline projects.

The Energy Act 2023 unfolds as a comprehensive legislative framework poised to reshape the UK's hydrogen and CCS sectors (which are increasingly likely to interlink and interface). 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 Arshard, Nathan Bradberry or Rupert Lugg.

Details of Phase 4 of the Public Sector Decarbonisation Scheme

Department for Energy Security and Net Zero | 29 February 2024

In February 2024, the Department for Energy Security and Net Zero confirmed Phase 4 of the Public Sector Decarbonisation Scheme, to be delivered by Salix Finance.

A funding pot of £1.17bn for public sector decarbonisation was confirmed in December 2023 for public sector decarbonisation:

• £670m available in 2025 to 2026
• £300m in 2026 to 2027
• £200m in 2027- 2028

Up to £335m of the funding for 2025 to 2026 is now being allocated to the second year of Phase 3c.

Boost for UK hydrogen as government backs world-leading industry

Department for Energy Security and Net Zero | 27 February 2024

Low carbon hydrogen to get a further boost with over £21m of government support for seven projects to make green fuel from Suffolk to Shetland. The projects will produce green fuel for buses, trucks and trains, while also supporting local businesses move away from natural gas. An announcement was made at the second Hydrogen Investor Forum, with industry leaders gathering to discuss growing economic opportunities in the UK.

Open call for evidence: Green Industries Growth Accelerator: hydrogen and CCUS supply chains

Department for Energy Security and Net Zero | 27 February 2024 

The Department for Energy Security and Net Zero are seeking evidence to help inform the design of the hydrogen and CCUS Green Industries Growth Accelerator supply chain fund. This call for evidence closes at 11:59pm on 23 April 2024.    

Offshore Energies UK launches 2024 industry manifesto: Choose a homegrown energy transition

OEUK | 26 February 2024

Offshore Energies UK (OEUK) published its industry manifesto, showing how a home grown energy transition built on private sector investment will be good for jobs, economic growth and communities across the UK. OEUK note this is the exciting opportunity the UK must take, not waste in a general election year.

The agenda-setting proposals show how a new era of home grown energy could power the UK’s journey to net zero if private investment conditions are right. The Office for Budget Responsibility says net zero will cost the UK £1.4 trillion and the lion’s share must come from industry. OEUK’s manifesto shows how this investment can be unlocked by policymakers.

Alternative Energy Markets Innovation Programme: Phase 2 projects 

Department for Energy Security and Net Zero | 23 February 2024

Phase 2 of the Alternative Energy Markets Innovation Programme will support the delivery of real world demonstrators, which will test demand side flexibility propositions developed in Phase 1 in a real world setting, demonstrating the impact of propositions and potential benefit to the electricity grid and to consumers under various scenarios.

UK departs Energy Charter Treaty

Department for Energy Security and Net Zero | 22 February 2024 

The UK government confirms its withdrawal from the Energy Charter Treaty after efforts to agree vital modernisation fail.

• European countries have been unable to reach agreement on modernisation of the Energy Charter Treaty.
• UK joins France, Spain and the Netherlands in withdrawing from the Treaty. 
• Strong legal framework is already in place to ensure continued investment in UK energy sector.

Local net zero: central support for local authorities and communities

Department for Energy Security and Net Zero | 2 February 2024 

Government provides a range of support to help local areas decarbonise. This includes:

• the Local Net Zero Accelerator Programme;
• the Local Net Zero Hubs Programme;
• funding for Net Zero Go, an on-line platform to provide councils with information to develop locally focused net zero projects; and
• funding for Community Energy projects.
  

Demand for heat pumps surges as grant application increase by 39% - GOV.UK (www.gov.uk) 

Department for Energy Security and Net Zero | 29 February 2024

• Figures show applications for the Boiler Upgrade Scheme are up 39% on January 2023
• The Scheme has issued more than £133m in vouchers to customers
• This follows grants increasing to £7,500, making the Scheme one of the most generous of its kind in Europe.

Legal Battle Over DHLUC's Home Energy Efficiency Directive (edie.net)

Edie | 28 February 2024 

UK Government faces legal challenge over home energy efficiency standards. The Good Law project has launched a legal challenge to the UK Government’s mooted plans to limit local councils from setting energy efficiency standards that go above and beyond national policy requirements.

Gatwick slashes its vehicle emissions after switching to HVO - AirQualityNews

Air Quality News | 27 February 2024

London Gatwick has revealed that by using Hydrotreated Vegetable Oil (HVO) in their diesel vehicles they have reduced their carbon emissions by 90%, a saving of more than 950 tonnes annually.

Fresh legal challenge over freedom to set net zero housing standards | Local Government Chronicle (LGC) (lgcplus.com)

Local Government Chronical | 27 February 2024

The government faces a fresh legal challenge over whether councils can demand higher energy efficiency for new homes than are required in national standards. The Good Law Project has supported Rights Community Action to take legal action the government’s latest position, which campaigners argue prevents councils from pursuing innovative approaches to reaching net zero targets.

UK’s net zero economy grew 9% in 2023, report finds | Green economy | The Guardian

The Guardian | 27 February 2024 

The UK’s net zero economy grew by 9% in 2023, a report has revealed, in stark contrast to the 0.1% growth seen in the economy overall. Nevertheless, the report pointed out that strong future growth from green businesses was being put at risk by government policy reversals, lack of investment and competition from the EU and US.

Net-zero-homes proposal ‘could lower standards’ | Construction News

Construction News | 26 February 2024

A coalition of built environment groups have said the government’s net-zero housing plans do not go far enough. Low Energy Transformation Initiative (LETI), a network of 1,000 professionals in the sector, says the Future Homes Standard could see housing built to lower environmental standards than today.

The Department for Levelling Up, Housing and Communities is consulting on plans to allow the Building Safety Regulator or local authorities to allow developments not to meet Regulation 26 of Part L of the Building Regulations if they “judge the requirement to be unreasonable in relation to that specific building work”. Regulation 26, which is already law, is a requirement not to exceed the target CO2 emission rate for the building, calculated using the national methodologies.

The department said in a consultation document published in December that unlike fire-safety or structural requirements, Regulation 26 cannot currently be “relaxed or dispensed with” by councils or regulators, due to its origins in EU law.

Legal win for Oxfordshire garden village net zero plans - BBC News

Client Earth | 20 February 2024

Planning inspectors acted unlawfully when advising a council on building energy efficient homes, a judge ruled.

Climate group, Rights Community Action, had challenged a decision to "water down" the net zero ambitions of West Oxfordshire District Council. The High Court ruling found inspectors incorrectly applied national planning policy to proposals for 2,200 homes in Salt Cross Garden Village. The Planning Inspectorate has declined to comment.

UK Government in High Court over ‘inadequate’ climate action plan – again | ClientEarth

Client Earth | 20 February 2024

Three organisations have taken the government to the High Court on 20 February over its weak and inadequate climate plan. This is the second time the three organisations – Friends of the Earth, ClientEarth and Good Law Project – have taken legal action over the government’s plan for meeting its legally-binding climate targets.

UK on Making Carbon Neutral and Net Zero Claims (natlawreview.com)

The National Law Review | 15 February 2024 

On February 10, the UK’s advertising regulator, the Advertising Standards Authority (ASA), announced the publication of updated guidance for advertisers making environmental sustainability-related claims to consumers, including use of the terms “carbon neutral” and “net zero.” The ASA explained that the amended guidance reflects the “key principles of the Competition and Markets Authority’s guidance on environmental claims on goods and services” and that “in light of the low understanding and lack of consensus around the meaning of carbon neutral and net zero claims, the Committees of Advertising Practice and the Broadcast Committee of Advertising Practice advise advertisers to take into account the following guidance, which draws on key principles of the Competition and Markets Authority guidance, and, if followed, means that claims are less likely to mislead.”

UK strengthens collaboration on energy security and fusion - GOV.UK (www.gov.uk)

Department for Energy Security and Net Zero | 14 February 2024

The Energy Security Secretary, Claire Coutinho, met with European allies last month to discuss plans to transition away from Russian liquefied natural gas following the UK’s lead.

At a ministerial meeting of the International Energy Agency in Paris, the Secretary of State also signed a landmark new fusion partnership with Canada, bringing the UK a step closer to developing a near limitless source of clean energy.

The Memorandum of Understanding with Canada on fusion energy will seek to improve collaboration on research and development, harmonise the approach to regulation, and develop the workforce and skills base. This will strengthen cooperation between the UK and Canada to support the deployment of fusion worldwide. It will also support the UK’s £650m fusion programme, cementing the UK as a world leader in this innovative technology.

UK first major economy to halve emissions - GOV.UK (www.gov.uk)

Department for Energy Security and Net Zero | 6 February 2024 

• The UK is the first major economy to halve its emissions – having cut them by 50% between 1990 and 2022, while also growing its economy by 79% - new official statistics released on 6 February 2024 confirm. This compares to a 23% reduction in France and no change in the USA between 1990 and 2021.
• With renewables now accounting for more than 40% of the country’s electricity – up from just 7% in 2010, this shows the UK is leading the way on cleaner energy. 

Council for Net Zero Transport to steer UK transport decarbonisation

Fleetworld | 1 February 2024 

A new Council for Net Zero Transport comprising senior stakeholders has launched in the UK to steer the decarbonisation transition as it moves into the crucial delivery phase.

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Delivering Value

Average council tax rate up 5.1% next year | Local Government Chronicle (LGC) (lgcplus.com)

Local Government Chronicle | 21 March 2024

The average band D council tax rate set by local authorities in England is £106 more for 2024-25, new government data has revealed. Data published by the Department for Levelling Up, Housing & Communities showed how residents in these properties will pay £2,171 on average in council tax next year, including the adult social care and parish precepts.

Committee slams government ‘waste’ in levelling up distribution | Local Government Chronicle (LGC) (lgcplus.com)

Local Government Chronicle | 15 March 2024

A lack of transparency over the distribution of levelling up funds has “wasted scarce public resources and caused some local authorities to miss out”, according to an influential committee of MPs, the cross-party Commons Public Accounts Committee. 

Budget ‘disappointing’ for councils sector says

Public Finance | 6 March 2024

Devolution deals and extra cost-of-living support were welcomed, but the Budget failed to address systemic funding issues in local government, sector bodies have warned.

London council pays out £6,000 after it ‘forgot’ sofa-surfing homeless family

Local Government & Social Care Ombudsman | 29 February 2024

The Local Government & Social Care Ombudsman (LGSCO) has reported that Waltham Forest Council did not take sufficient steps to help a family find interim and temporary accommodation. Waltham Forest Council missed telephone appointments and 'forgot' about the family resulting in the family being forced to sofa surf for 12 months. The Council has agreed to apologise to the family and pay a total of £6,000 for the time the family spent without interim accommodation.

Devon to review benefits calculations for nearly 300 carers following Ombudsman’s investigation

Local Government & Social Care Ombudsman | 22 February 2024

The Local Government and Social Care Ombudsman has reported that Devon County Council will review how it calculated allowances to nearly 300 families who look after children as special guardians. This comes after an investigation by the LGSCO found the council was wrongly deducting child benefit from all special guardians receiving universal credit. These families will receive a sum equivalent to any deductions wrongly made.

Woman left trapped in home because of poor council assisted bin collection service

Local Government & Social Care Ombudsman | 20 February 2024

The Local Government and Social Care Ombudsman (LGSCO) has reported that it has investigated three complaints made by a resident of Thurrock Council after bins were not returned to their proper place by the assisted bin collection service. LGSCO found that the misplaced bins resulted in the resident, a wheelchair user, being trapped in their home. LGSCO said that Thurrock Council has agreed to review bin complaints to ascertain whether it has any persistent issues with the bin collection service that has been offered to those with disabilities.

Dorset care home refuses to refund family despite investigation finding serious issues with care provided

Local Government & Social Care Ombudsman | 8 February 2024

The Local Government and Social Care Ombudsman (LGSCO) has reported that Farrington Care Limited has refused to refund the cost of care a family paid for the seven weeks their relative was a client despite findings of significant failings in the relative’s care. The LGSCO investigated into a family’s complaint after the council’s safeguarding investigation found evidence of neglect and omissions in the care provided. The LGSCO recommended the home reimburse for all fees paid for the seven weeks, the fees deducted for a notice period and a further £350 in recognition of the distress and uncertainty caused. The home has refused to pay the remedy and the LGSCO has issued an Adverse Findings Notice against the nursing home.

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Place & Growth

Managing Fire Safety in occupied higher-risk buildings – key changes to duties under and enforcement of Part 4 of the Building Safety Act 2022 from 16 January 2024 

16 January 2024 marked the introduction of The Building Safety Act 2022 (Commencement No.6) Regulations 2025, bringing into force a number of key provisions in Part 4 (the occupation stage) of the Building Safety Act 2022 (BSA 2022). 

These Regulations provide much anticipated detail around the duties imposed on any Principal Accountable Person (PAP) and / or Accountable Person (AP) in relation to occupied residential higher-risk buildings (HRB) in England. 

In England, for the purpose of Part 4 of the BSA (the occupation stage), a HRB is any structure that:

• Has at least two residential units, and
• Stands at either a minimum height of 18 meters or seven storeys. 

It is important that any local authorities who are responsible for the repair and maintenance of common parts of any buildings that meet the above criteria are aware of and comply with these duties. 

In brief, key new provisions include: 

• The assessment and management of building safety risks and the Safety Case Report
• The application and issue of Building Assessment Certificates (to be applied for when directed to by the Building Safety Regulator).
• The keeping and sharing of information
• Requirements for resident engagement and the provision of information
• Duties placed on residents and details around actions AP can take if duties are breached
• Enforcement by the BSR
• BSR’s ability to apply to replace an AP who fails to comply with their duties with a Special Measures Manager
• Requirement for a named director responsible for building safety management where an AP is a resident management company 

Importantly, s101 of the BSA 2022 creates a criminal offence where an AP or PAP contravenes Part 4 provisions, placing anyone at significant risk of death and / or serious injury. The BSR is required to enforce Part 4 of the BSA and any regulations made under it.  This makes it critical that new duties are understood and complied with. 

For the management of fire safety risks the introduction of s83 and 84 of the BSA – the assessment and management of building safety risks – are of particular significance. 

Assessment 

APs must make a suitable and sufficient assessment of the building safety risks for the part of the building for which they are responsible. This must be updated at regular intervals and at any time there is suspicion it is no longer valid.

An understanding of the building an AP is responsible for is therefore crucial for effective and appropriate risk assessment, this includes:

• Details of the building’s original design and construction
• The building’s current condition 
• Types of refurbishment or other changes that have taken place over the buildings life-time. 

In assessing building safety risks, for the parts of the building they are responsible for, APs should consider:

• the hazards within their building
• who may be harmed by these hazards 
• the likelihood and consequences of these hazards resulting in a major incident
• how to lower risk of a major incident to an acceptable level 
• measures required to mitigate the risk of harm to residents if a major incident were to occur.

Management 

APs must promptly take all reasonable steps to prevent building safety risks from materialising and to reduce severity of these incidents should they occur. APs should plan, organise, control and monitor their approach.
 
Clearly, what is reasonable and proportionate depends on the individual circumstances of the building. Again, therefore a knowledge of the building, including the practicality of carrying out measures and associated costs, is crucial. APs should consider measures already in place to effectively control building safety risks and what additional measures could reasonably be taken.

APs are also required to engage with residents (or flat owners) and provide information on the prevention and mitigation of building safety risks.

The PAP must then prepare a Safety Case Report for the building. This report must contain details of the APs assessment and management of risks, with an explanation as to why certain measures were adopted. In due course, this report will have to be provided to the Building Safety Regulator.

From 6 April 2024, the Building Safety Regulator is expected to start the process of requesting that PAPs apply for a building assessment certificate for a registered building within 28 days of their request. Failure to do so, without a reasonable excuse, is an offence.

If you require any further information or support in relation to any of the above please contact
Louise Mansfield or Melissa Stanford.

Dismissal of JR on order to quash decision to approve construction traffic management plan (R (on the application of Lisle-Mainwaring) v Royal Borough of Kensington and Chelsea)

Francis Taylor Building | 29 February 2024

The Administrative Court in R (on the application of Lisle-Mainwaring) v Royal Borough of Kensington and Chelsea [2024] EWHC 440 (Admin), dismissed the claimant’s application for judicial review after she had applied for an order to quash a decision made by the defendant to approve a construction traffic management plan. The planning permission was granted in May 2022 (May 2022 Application) and the work commenced on site without the pre-commencement condition being discharged. The claimant contended, among other things, that: (i) the defendant had a discretion to decline to determine the May 2022 Application; and (ii) the defendant failed to consider a material consideration being its ability, acting reasonably, and to decline to determine the interested party’s application to discharge the condition. The defendant argued, among other things, that the ability of the defendant to decline to determine the May 2022 Application was not drawn to the attention of the planning applications committee by the claimant, since she did not ask the committee to decline to determine the application. The court held, among other things, that: (i) the discretion to decline to determine the May 2022 Application was a material consideration and not a mandatory material consideration, and neither the claimant nor any other party put that consideration before the defendant; (ii) the existence of a discretionary power to decline to determine the application was not put before the defendant, and no party asked the defendant to exercise such a discretion. Furthermore, the defendant was not obligated to cast around and find an alternative to refusing or approving the application which had been made to them.

High Court dismisses challenge concerning inspector’s criticisms of site selection search in solar appeal (Lullington Solar Park Ltd v SLUHC)

Local Government Lawyer | 22 February 2024

In (Lullington Solar Park Ltd v SLUHC), the High Court rejected a challenge of an inspector’s decision to dismiss an appeal against a local planning authority’s decision to refuse planning permission for a solar development. The grounds were concerned with the inspector’s approach to considering a site selection search submitted to demonstrate the availability of best and most versatile agricultural land in locations in the district within a defined search area. The judge rejected both grounds and dismissed the challenge. 

Councils warn of impact of proposed Building Safety Levy on s106 contributions

Local Government Lawyer | 8 March 2024

The Government’s proposed Building Safety Levy could damage the delivery through section 106 agreements of affordable housing and infrastructure, and leave homeowners and councils footing the bill for building defects. That warning has come from the Local Government Association (LGA) in its response to a Government consultation. The levy seeks to ensure taxpayers and leaseholders do not pay for the remediation of historic building safety defects by instead raising funds from developers towards this, an objective the LGA supported. It is among legislative changes following the Grenfell Tower fire disaster. But the LGA said an unintended consequence could be “that local communities will ultimately pay the price for historic failures in regulation and practice, in terms of less infrastructure and affordable housing being delivered [through section 106]”.

£208m investment in the North to transform towns and cities

Department for Levelling Up, Housing & Communities | 1 March 2024

The Department for Levelling Up, Housing and Communities has announced a £208m investment to fund a range of projects across towns and cities in the north of England to regenerate the area, including building more housing. Northern leaders are also receiving powers to support the delivery of the promise in the Levelling Up White Paper to level the playing field by spreading opportunities.

Council secures £1.44m penalty under Proceeds of Crime Act against overseas property owner after unlawful conversion of house into flats

Local Government Lawyer | 29 February 2024

The London Borough of Ealing has obtained a £1.44m penalty under the Proceeds of Crime Act after an overseas property owner broke planning rules and then refused to comply with enforcement action. Ali Bahbahani, of no fixed address, was ordered to pay £1,283,444 for converting the home in Ealing into flats, including an extension. The defendant then failed to comply with orders to cease the use and demolish the unauthorised extensions. Ealing secured the confiscation order under the Proceeds of Crime Act because Bahbahani then profited illegally from renting the flats. Ealing secured the confiscation order under the Proceeds of Crime Act because Bahbahani then profited illegally from renting the flats. The defendant failed to appear for his conviction at Isleworth Crown Court on 25 January. As part of the confiscation order, the council will be recovering more than £16,000 in unpaid council tax and business rate bills. Ealing said that over the last 10 years it had issued multiple court applications to have the property restored to its original condition. The case was heard before a number of courts before being concluded at Isleworth Crown Court in January.

DLUHC announces new planning rules for short-term lets

Department for Levelling Up, Housing & Communities | 19 February 2024

The Department for Levelling Up, Housing and Communities (DLUHC) has published a press release announcing changes to planning rules which will help prevent locals from being pushed out of their communities by high numbers of short-term lets. Under the reforms, short-term lets will be subject to the planning process with planning permission being required for future short-term lets, providing local authorities with more control. A new mandatory national register will also provide information to local authorities, helping them to understand the number of short-term lets in their area, to discover the impact on their communities and to ensure compliance with health and safety regulations. Both the planning changes and the register are focussed on short-term lets and will not affect hotels, hostels or B&Bs. More details will be set out in the government’s response to the consultations and the changes are expected to be introduced from this summer.

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Governance & Reorganisation

Spring Budget 2024 speech

HM Treasury | 6 March 2024

In the Spring Budget 2024, on 6 March 2024, the Chancellor of the Exchequer, the Rt Hon Jeremy Hunt MP, made several announcements of relevance to local government practitioners, including on governance, local government finance, healthcare, education, children’s social care, social care, social housing and planning.

Budget 2024: CCN welcomes new devolution agreements in counties

County Councils Network | 6 March 2024

The government have announced new devolution agreements for Buckinghamshire, Warwickshire and Surrey, which will devolve powers over adult education and infrastructure to the area. The agreements, pending formal approval, will devolve ‘Level 2’ powers of the devolution framework directly to the upper-tier councils. CCN has supported the negotiations with the authorities and government over several months. These are the latest county devolution agreements with County Councils Network members, following on from several agreed in the last 20 months, and takes the total of deals involving our member councils to 15.

Local authorities warn ‘difficult but necessary’ council tax rises are needed to help prevent insolvency, as new analysis reveals 95% plan maximum increase

County Council Networks | 20 February 2024

Data compiled by the County Councils Network (CCN) finds that out of 136 county and unitary local authorities in England who have so far published their budget proposals, 128 (95%) plan on raising their council tax by the maximum permitted – 4.99%. These increases come despite councils receiving an emergency injection of £600m last month, following intense lobbying by CCN. County leaders said that the additional funding is welcome and would help safeguard frontline services, many of which are relied on by struggling households.

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Contract Management

PPN 01/24: Carbon Reduction Contract Schedule

The Cabinet Office has published Procurement Policy Note PPN 01/24 “Carbon Reduction Contract Schedule” (18 March 2024). 

This PPN introduces an optional standard Carbon Reduction Contract Schedule that can be included in Government contracts, where it is considered relevant to the subject matter and proportionate to the delivery of the contract. The PPN applies to procurement by “In-Scope Organisations” (Central Government Departments, their Executive Agencies and Non-Departmental Public Bodies); however, all public sector contracting authorities may wish to apply the approach set out.

The provisions are expected to be incorporated into future iterations of the suite of the Model Contracts, which were most recently updated on 1 August 2023.   However, it is suggested that in-scope organisations may also choose to use these terms in relevant procurements with immediate effect, or apply them to existing contracts, through a contract variation, where appropriate.

Whilst environmental and GHG emissions considerations feature in the aspects of delivery of most public contracts, as highlighted below, some categories of spend, such as technology, may provide greater opportunities to support Net Zero commitments.  Use of the schedule is optional and it should only be included where it is relevant to the subject matter of the contract and where it is proportionate to do so, rather than as a default.  

The guidance includes a number of questions to aid decision making and suggests that there are four key factors in determining the relevance and proportionality of the T&Cs to the contract.

If you would like to know more about structuring your contracts to incorporate the Carbon Reduction principles, or how the schedule may need to be modified or adapted to fit with the way your organisation operates, please get in touch with Liz Fletcher.

The Procurement Act 2023 (Commencement No. 2) Regulations 2024

legislation.gov.uk | 11 March 2024

These Regulations bring into force provisions of the Procurement Act 2023 (“the Act”).The powers being commenced confer powers to make regulations, including regulations which may amend the Procurement Act 2023, and place certain devolution-related restrictions on those powers. The regulations also commence the ability of a Minister of the Crown and Welsh Ministers to publish procurement policy statements.
These are the second commencement regulations under the Act.

The Social Partnership and Public Procurement (Wales) Act 2023 (Commencement No. 2) Order 2024

legislation.gov.uk | 7 March 2024

This Order made by the Welsh Ministers brings into force certain provisions of the Social Partnership and Public Procurement (Wales) Act 2023 (asc 1) (“the Act”). Article 2 of this Order brings section 17 (social partnership duty: Welsh Ministers) and section 19 (social partnership reports: Welsh Ministers) of the Act info force on the 1 April 2024.

Crown Commercial Service publishes updated commercial pipeline under Procurement Act 2023

Crown Commercial Service | 11 March 2024

The Crown Commercial Service (CCS) has published an article on the latest priority list of commercial agreements. The CCS notes that the Procurement Act 2023 is not retroactive.  All current live commercial agreements will continue operating under the Public Contract Regulations 2015 (PCR2015). We will operate agreements under both PCR2015 and the Procurement Act 2023 for a period of time; at least until existing agreements expire, are replaced, or cease to exist.

MoD publishes Minister’s statement on the Integrated Procurement Model

Ministry of Defence | 28 February 2024

The Ministry for Defence (MoD) has published the oral statement given by the Minister for Defence Procurement, James Cartlidge, to Parliament on the new Integrated Procurement Model. In the statement, Cartlidge announced the new Integrated Procurement Model which has five key features. Cartlidge has said that the new approach will: be joined up with procurement anchored in pan-defence affordability; have new checks and balances; prioritise exportability; empower industrial innovation; and, purpose spiral development by default.

GCF publishes Public Procurement Review Service Progress Report 2022-2023

Government Commercial Function | 16 February 2024

The Government Commercial Function (GCF) has published the Public Procurement Review Service (PPRS) Progress Report 2022–2023, assessing trends from 6 April 2022 to 5 April 2023. The GCF has noted that the top four reported issues to PPRS were payment, evaluation, tender process and use of framework. In total, PPRS received 91 cases, a 3% decrease from the previous financial year, half of which were from new service providers. The GCF has noted that 100% of PPRS recorded case outcomes were measured as ‘positive’. Focuses for the financial year included increased operational transparency, more engagement with the voluntary, community and social enterprises sector, active support of the Small Business Crown Representative, stakeholder engagement and more work with teams across the GCF to ensure that issues raised are address and help to improve commercial capability.

Will Quince MP appointed to conduct review into food procurement

Department for Environment, Food & Rural Affairs | 11 March 2024

On Monday 11 March 2024, Environment Secretary Steve Barclay appointed Will Quince MP as an independent advisor to support the government’s ongoing work to improve food procurement in the public sector.

Welsh Government publishes procurement reform update for March 2024

Welsh Government | 5 March 2024

The Welsh Government has published its update on procurement reform for March 2024, focussing on Learning and Development (L&D) timelines. The Welsh Government has noted that L&D offerings will be available for stakeholders in the lead up to the new Procurement Act 2023 going live in October 2024. These include focussed eLearning, intensive deep dive learning and short knowledge drop videos for suppliers, small and medium sized enterprises (SMEs) and voluntary, community and social enterprises (VCSEs) as well as all other stakeholders.

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Disputes & Regulatory Support

Alleged transphobic Facebook posts: Meade v Westminster City Council

Court of Appeal confirms NHS Trust’s provision of car parking on hospital site not subject to VAT (Northumbria Healthcare NHS Foundation Trust v Revenue and Customs Commissioners)

Courts and Tribunals Judiciary | 5 March 2024

The Court of Appeal, in Northumbria Healthcare NHS Foundation Trust v Revenue and Customs Commissioners [2024] EWCA Civ 177, allowed the NHS trust’s appeal on all grounds and, setting aside the tribunal decisions, found that the trust’s provision of car parking on its hospital site was not subject to VAT. The Court concluded the UT and FTT had erred in law in deciding that the trust did not provide hospital car parking under a ‘special legal regime’, and that the tribunals had adopted the incorrect approach to determining whether non-taxation would cause significant distortions of competition. On remaking the FTT decision, the court concluded that hospital parking was provided by the trust ‘as’ a public authority and that HMRC had not demonstrated that non-taxation would lead to significant distortions of competition. The trust was therefore a non-taxable person within VATA 1994, s 41A in relation to its supply of car parking, and the trust’s claim for repayment of output VAT was allowed.

Application for psychologist to undertake cognitive assessment of mother in care proceedings dismissed (West Northamptonshire Council v The Mother and another)

Local Government Lawyer | 27 February 2024

The Family Proceedings, in West Northamptonshire Council v The Mother and another [2024] EWHC 395 (Fam), dismissed the applicant’s, the local authorities, application for a psychologist to undertake a cognitive assessment of a mother in care proceedings. The judgment attempted to give some guidance on when such applications should have been made. The interim threshold alleged that mother failed to engage with antenatal services, including mental health services, and that there was a risk of harm from her association with the father, who had a history of offences. The application did not come close to meeting the test of being ‘necessary’ to resolve the proceedings, and in the courts’, view should never have been made. Such applications waste considerable resources, both in the courts, but also in the local authorities and cafcass when they lead to unnecessary hearings and unnecessary expense. The solicitor referred to a psychological assessment being useful in determining what support the mother would need to help care for the child in the future. But that was not the purpose of the Part 25 application. Further, that type of analysis was one that all social workers should have necessarily been very familiar with. There was again nothing in that case which justified going beyond normal good social work practice.

R (AB and CD) v Westminster City Council: judicial review concerning indirect discrimination and applicants with medical support animal

Field Court Chambers | 23 February 2024

The Administrative Court, in R (on the application of AB and another) v Westminster City Council [2024] All ER (D) 115 (Feb) ruled on the claimants' application for judicial review in relation to the adequacy of the accommodation provided by the defendant local authority. The claimants were a couple. They each suffered from a number of serious physical and mental disabilities. The defendant was satisfied that they were homeless within the meaning of the Housing Act 1996 and was presently providing them accommodation to discharge its duties. It fell to be determined, among other things, whether the defendant was, and had been since the specified date, in breach of its duty under section 193(2) of the Act. The court held that it was accepted on all sides that the current accommodation at the Town Y accommodation was not necessarily a long-term solution, and it could be that if the claimants sought an internal review or pursue an appeal to the County Court it would be accepted that it was not suitable in the short to medium term. For the reasons set out, however, it was considered that judicial review was not the appropriate remedy to deal with those matters, and it was not considered that the claimants had established grounds on which the defendant had acted unlawfully. The present court, therefore, would not allow the claimants' judicial review. That was save in relation to the conceded position regarding the ground 1 challenge to the suitability of the claimants' accommodation prior to the specified date.

Housing association’s appeal against reduction in proposed rent increase dismissed (Peabody Trust v Welstead)

Caselaw Digest | 19 February 2024

The Upper Tribunal (Lands Chamber), in Peabody Trust v Welstead [2024] UKUT 41 (LC), dismissing the appellant landlord’s appeal against a determination of the First-tier Tribunal (Property Chamber) that there should be a reduction in a proposed rent increase in respect of the respondent’s tenancy, held that the landlord’s contention that the FTT had not given notice that the increase sought for service charges had to be justified misunderstood the process for determining a new rent under section 14 of the Housing Act 1988, which imposed an evidential burden on the landlord seeking an increase in rent.

Landmark decision impacting universities’ duty of care obligations (University of Bristol v Dr Robert Abrahart)

Kingsley Napley | 14 February 2024

On 14 February 2024, the High Court issued a landmark ruling that universities and students alike have been long awaiting. Shannett Thompson of Kingsley Napley considers the judgment in The University of Bristol v Dr Robert Abrahart (Administrator of the estate of Natasha Abrahart, deceased) (Equality and Human Rights Commission intervening) and the practical implications of the ruling.

Allocations – backdating applications and the duty of candour (R (Montano) v Lambeth LBC)

Nearly Legal | 11 February 2024

A judicial review against the defendant’s decision not to backdate an application for rehousing under the council’s Part 6 of the Housing Act 1996 allocations scheme. The local authority had rejected the request on the basis that it held no discretion to do so. The court overturned this and decided that the scheme did contain such a power and that the council had acted unlawfully in failing to consider the exercise of that power. The judgment went on to criticize the council’s conduct during proceedings and found that it had failed to meet the duty of candour and the duty of co-operation required in judicial review proceedings. Written by Kevin Long, solicitor at Hackney Community Law Centre.

Can the court compel parties to explore non-court based dispute resolution? (Churchill v Merthyr Tydfil County Borough Council)

DAC Beachcroft | 9 February 2024

The recent Court of Appeal judgment in Churchill v Merthyr Tydfil County Borough Council provides important clarification as to whether the courts can, and will, order parties to participate in non-court based dispute resolution. Up to this point, it was widely considered that the courts would be unlikely to compel parties to participate in alternative dispute resolution (ADR). This was based on the Court of Appeal’s decision in Halsey v Milton Keynes General NHS Trust, which was perceived to mean that mandatory ADR was an unacceptable obstruction to the right of access to the courts. However, in Churchill, it was clarified that in certain circumstances the court may stay litigation to order parties to engage in ADR. William Johnson, Graham Anderson and Hoi-Yee Roper of Farrer & Co LLP consider the case and practical implications.

Public Law Project reports on Welsh Government’s unlawful school meal decision

Public Law Project | 1 March 2024

Public Law Project has reported on the High Court’s declaration that the Welsh Government’s decision to stop free school meals was made unlawfully, after a legal challenge was brought by two families. Welsh ministers admitted to failing to consider the negative impact of the decision on the rights of children and vulnerable families. The High Court found, by consent, that the Welsh ministers acted in breach of the Rights of the Children and Young Persons (Wales) Measure 2011 (RCYP(W)M 2011) and the Equality Act 2010. This is the first time Welsh ministers have been declared to be in breach of their duties under RCYP(W)M 2011. The two families were represented by Matthew Court of PLP, David Gardner of No5 Chambers and Gwion Lewis KC of Landmark Chambers.

Family President suspends guidance on electronic bundles in relation to public law

Local Government Lawyer | 23 February 2024

On 23 February 2024, the President of the Family Division, Sir Andrew McFarlane, confirmed that the guidance on electronic bundles is suspended in relation to public children proceedings with immediate effect. The guidance has been referred to the Family Procedure Rule Committee with a view to a revised version being published. In the meantime, the judiciary and local authorities are to proceed according to the needs of the case and the capacity of the software system available to them. The guidance continues to apply to private law and financial remedy proceedings.

Tougher laws to protect children from sexual abuse

Home Office | 21 February 2024

The Home Office has announced that the Home Secretary, James Cleverly, has brought forward plans to ‘better protect’ children from sexual abuse. The Home Office has said that there will be a legal requirement for anyone in regulated activity relating to children in England to report child sexual abuse, and failing to do so could result in being barred from working with young children. Additionally, the Home Office has said that those who actively protect child sexual abusers could face imprisonment for seven years. The Home Office has said that the measures will be introduced as amendments at report stage of the Criminal Justice Bill in the House of Commons.

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Resources Library

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In-house Insights: Property Disputes

In-house Insights: Construction

In-house Insights: Procurement

In-house Insights: ESG

In-house Insights: Contract Update

In-house Insights: Information Law and IP

Energy Matters February / March 2024 - Key updates across the energy sector

Data Matters - March 2024 - Bevan Brittan’s Information Law and Privacy Update

Employment Eye March 2024 - Employment law report for March 2024

Interim declarations in the Court of Protection: a new approach

Modern Slavery Uncovered: Challenges Facing Foreign Staff in Care Homes

Menopause – EHRC Guidance

Letters of Intent and how not to use them

The challenges in controlling health and safety risks in Energy from Waste

Processing Biometric Data: Key considerations for your organisation 

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25 April 2024, 12.30 – 1.30

Case Law Update – Mental Capacity Act 2005 

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6 June 2024, 12.30 – 1.30

Naughty, naughty – breaching orders in the Court of Protection  

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Pensions Not Podcasts - Savings and Retirement Planning

Reflecting on Children’s Social Care 2 years on from the national review

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