Adult Social Services

DH: What are the Mental Capacity Act deprivation of liberty safeguards?: the Mental Capacity Act Deprivation of Liberty Safeguards (MCA DOLS), which come into force in April 2009, require all local authorities to have procedures in place to ensure that patients in care homes are not treated in a manner that could be classed as a deprivation of their liberty. Local authorities have a duty to carry out assessments to approve any potential deprivations. This leaflet provides a brief general introduction for care homes to help staff understand what the MCA DOLS will mean for them and for their service users. (15 December 2008)

If you wish to discuss any of the items noted in this section please contact James Cassidy.

Anti Social Behaviour

Home Office: Guidance on Designated Public Place Orders (DPPOs): this guide for local authorities in England and Wales explains their new powers under s.13 of the Criminal Justice and Police Act 2001 and s.26 of the Violent Crime Reduction Act 2006 to designate places where restrictions on public drinking apply. DPPOs can only be used in areas that have experienced alcohol-related disorder or nuisance. Once an area has been so designated, police and local authority officials can confiscate alcohol in public places; DPPOs can also be used to stop people from drinking alcohol. Anyone who does not comply with this order can be arrested and fined up to £500. They can also be issued with a Penalty Notice for Disorder. The guide includes examples of good practice. (23 December 2008)

Charging

Local Authorities (England) (Charges for Property Searches) Regulations 2008 (SI 2008/3248): these regulations, which came into force on 23 December 2008, enable local authorities to make charges for services provided in connection with property searches, specifically "access to property records" and "answering enquiries about a property" (as defined in reg.2). Any charges must be made on a cost recovery basis and the regulations set out how they are to be calculated. They revoke SI 1994/1885. (16 December 2008)

If you wish to discuss any of the items noted in this section please contact Bethan Evans.

Children's Services

DCMS: Foster carers who also provide childcare: this letter alerts Directors of Children's Services to their responsibility to inform foster carers who also care for children who are not their foster children that they must legally be registered with Ofsted. (18 December 2008)

If you wish to discuss any of the items noted in this section please contact Caraline Johnson.

Civil Protection and Emergency Planning

Cabinet Office: Mutual aid - a short guide for local authorities: guidance for local authorities on developing effective mutual aid arrangements. Local authorities are defined as Category 1 responders in the Civil Contingencies Act 2004 and so are subject to the full range of duties in relation to civil emergencies. In order to discharge those responsibilities effectively, every local authority should have in place the appropriate plans and resources, and it is increasingly common for local authorities to work together, particularly on a sub-regional basis, with a simple protocol under which mutual aid will be given and received. This guide contains advice on a range of practical considerations and provides a general framework that can be developed by authorities to satisfy local requirements. Appendix 1 contains a simple model agreement which has been adapted from that used by the Northumbria local authorities. (22 December 2008)

If you wish to discuss any of the items noted in this section please contact Bethan Evans.

Community Engagement

DCLG: Cohesion delivery framework - overview: explains the practical actions that local authorities and their partners in the public, private and voluntary sectors can take to build places where everyone shares a sense of belonging. It also signposts the support and advice available from central Government. This publication supersedes the previous Cohesion Delivery Framework and includes updated information on guidance and the good practice web portal. (6 January 2009)

DCLG: Guidance on building a local sense of belonging: suggests ways in which councils, voluntary groups and other organisations can encourage a sense of belonging. It is aimed at local cohesion practitioners and will be particularly relevant where they are working in areas where building a sense of belonging is a key priority or where it supports the delivery of improved community cohesion in other areas. (6 January 2009)

DCLG: Guidance on meaningful interaction - How encouraging positive relationships between people can help build community cohesion: this guidance, aimed at local cohesion practitioners and policy planners, summarises what is known about meaningful interaction based on research findings and the views of expert practitioners. It includes examples of good practice that will help build or strengthen community ties. (6 January 2009)

If you wish to discuss any of the items noted in this section please contact Bethan Evans.

Discrimination

Islington LBC v Ladele (UKEAT/0453/08) (EAT): L was a registrar employed by the local authority. When the Civil Partnership Act 2004 came into force, she refused to participate in registering such partnerships as she stated that to do so was inconsistent with her religious beliefs. The local authority insisted that she should undertake at least some of these duties and disciplined her and threatened her with dismissal when she refused. The employment tribunal upheld L's complaints of direct discrimination, indirect discrimination and harassment contrary to the Employment Equality (Religion or Belief) Regulations 2003 reg.3 and reg.5.
The EAT held, allowing the local authority's appeal, that the tribunal had failed properly to apply the established principles of direct discrimination. The tribunal had fallen into the trap of confusing the authority's reasons for treating L as it had with her reasons for acting as she had. The authority had not taken disciplinary action against L for holding her religious beliefs; it had done so because she was refusing to carry out civil partnership ceremonies and that involved discrimination on grounds of sexual orientation. The tribunal had also erred in identifying as statutory comparators two gay registrars; the proper comparator was another registrar who refused to conduct civil partnership work because of antipathy to the concept of same-sex relationships, such antipathy not being connected to or based on his or her religious belief. Regarding the complaint of indirect discrimination, the tribunal had wrongly applied the proportionality test by failing to carry out a careful and sophisticated analysis of X's justification defence. Once it was accepted that the aim of providing the civil partnership service on a non-discriminatory basis was legitimate, it had to follow that the authority was entitled to require all registrars to perform the full range of services, and it was entitled to say that L could not pick and choose what duties she would perform depending on whether they were in accordance with her religious views, at least in circumstances where her personal stance involved discrimination on grounds of sexual orientation. (19 December 2008)

If you wish to discuss any of the items noted in this section please contact Sarah Lamont.

Finance

Audit Commission: Internal audit review - investments in Icelandic banks: sets out the findings of the Head of Assurance’s review into the circumstances in which the Commission’s cash funds were placed on short-term deposits with two Icelandic banks, Heritable and Landsbanki. The audit concentrated on assessing the past events leading up to the Icelandic banking crisis. The overall conclusion of the review is that adequate assurance can be given that the deposits complied with the Commission’s approved treasury management policy and procedures, with one exception. (18 December 2008)

If you wish to discuss any of the items noted in this section please contact Ginny Cooper.

Housing

Knowsley Housing Trust v White; Honeygan-Green v Islington LBC; Porter v Shepherds Bush Housing Association [2008] UKHL 70 (HL): in this case the House of Lords considered questions about the effect of suspended possession orders on the status and rights of secure tenants under the Housing Act 1985 and assured tenants under the Housing Act 1988. Their Lordships were highly critical of the concept of "tolerated trespasser", stating that the invention of the tolerated trespasser under the 1985 Act had led to difficulties and uncertainties as to his or her rights and obligations as against the landlord, and also to arguments as to the precise terms that a suspended order for possession under the 1985 Act could and should take. These were not the sort of issues which legislation designed to protect residential tenants should require to be resolved, and they would not arise if a tenant remained an assured tenant until possession was obtained. The court held that:

		an assured tenancy subject to a suspended possession order did not come to an end until possession is delivered up;
		when making a suspended possession order under s.85 of the 1985 Act, the court could include a proleptic provision that the order be discharged once its terms had been complied with;
		the court could also vary the terms of suspension for the purpose of giving effect to its power of discharge; and
		where a tenant who has served notice exercising the right to buy is then made subject to a suspended possession order, the right to buy is revived if and when that order is discharged.

(10 December 2008)

If you wish to discuss any of the items noted in this section please contact Rebecca Cobb.

Maladministration

Parliamentary and Health Service Ombudsman: Principles of good complaint handling: sets out best practice advice for public bodies on how to deal with complaints. Although the PHSO's report is directed at government bodies and the NHS, the guidance is also relevant to local government. The six Principles are: Getting it right; Being customer focused; Being open and accountable; Acting fairly and proportionately; Putting things right; and Seeking continuous improvement.
The Principles have been published alongside the PHSO's report Improving public service: a matter of principle, that shares the lessons the PHSO has learnt from recent investigations and urges public bodies to improve public administration and complaint handling practices. It includes real cases from a range of public bodies and illustrates good and bad practice in dealing with complaints. (11 December 2008)

If you wish to discuss any of the items noted in this section please contact Bethan Evans.

Overview and Scrutiny

Overview and Scrutiny (Reference by Councillors) (Excluded Matters) (England) Order 2008 (SI 2008/3261): s.21A of the Local Government Act 2000 (inserted by s.119 of the Local Government and Public Involvement in Health Act 2007) gives councillors power to refer local government matters to the local authority's overview and scrutiny committee (the so-called "Councillor Call for Action"). This Order, which comes into force on 1 April 2009, excludes certain issues from the definition of "local government matter" for the purpose of s.21A. The Order excludes issues relating to individuals concerning planning and licensing, and issues which are vexatious, discriminatory or not reasonable to be included in the agenda for, or to be discussed at, a meeting of the overview and scrutiny committee or any of its subcommittees. It also excludes issues relating to individuals or entities, where there is already a right to a review or appeal (other than the right to complain to the Local Government Ombudsman). (18 December 2008)

If you wish to discuss any of the items noted in this section please contact Peter Keith-Lucas.

Pensions

Hamilton v Monmouthshire CC and Torfaen CBC [2008] EWHC 3101 (Ch) (Ch D): H was employed by MCC under a fixed term contract. He went on sick leave and did not return to work before the expiry of his contract. Nearly four years after his contract expired, H applied under reg.31 of the Local Government Pension Scheme Regulations 1997 for early payments of his deferred benefits on the grounds of ill-health. MCC agreed to the early payment but refused to backdate it to the day after H's contract expired or to an earlier date when he went on sick leave. The Ombudsman held that it was most improbable that ill-health was the reason that H left employment, particularly because there was no evidence that the local authority had considered H for ill health retirement before he left and H did not himself raise that question, and he found that H left employment because his fixed term contract had expired.
The court held, dismissing H's appeal, that early payment of deferred retirement benefits under reg.31 was payable from the date of the election to receive immediate payment or the date of permanent incapacity, whichever was later, and it was not possible to backdate the payment earlier than the date of election. (18 December 2008)

If you wish to discuss any of the items noted in this section please contact Christine Johnston.

Procurement

EC: Public procurement - Commission recognises need for accelerated procurement procedure: announces that the Commission is relaxing the rules on the use of the accelerated restricted procedure in the light of the current financial crisis. The Commission considers that the exceptional nature of the current economic situation can justify the use of the accelerated procedure so throughout 2009 and 2010, so there will be a presumption of urgency for all major public projects. This will reduce considerably the overall time limit of the procurement procedure from 87 days to 30 days where the contract notice is sent out electronically. (19 December 2008)
Bevan Brittan has produced an Alert on the implications of this announcement for contracting authorities: EC relaxes use of the accelerated restricted procedure.

If you wish to discuss any of the items noted in this section please contact Tim Heywood.

Structural Change

East Devon DC v Electoral Commission, the Boundary Committee for England; Secretary of State for Communities and Local Government (Interested Party) [2009] EWHC 4 (Admin) (Admin Ct): the local authority challenged the Boundary Committee's review of local government in Devon on the grounds of consultation and affordability. It also contended that the Boundary Committee had erred in wrongly believing that it was permitted to propose only one new structure of local government for Devon, and in misunderstanding what was meant by conformity of a proposal with the criteria "in aggregate".
The judge held, considering his judgment in Breckland District Council v Boundary Committee [2008] EWHC 2929 (Admin), that any challenge was premature. The Committee was entitled to consult separately on affordability, and had put forward reasonable grounds for doing so. The process adopted by the Committee was capable of amounting to sufficient consultation, so it was premature to argue that it will not have been sufficient when completed. It was entitled to say that there was more than one solution which met the five criteria, and so come forward with alternative proposals, and it had correctly interpreted that it was not permitted to advocate a two-tier solution, but must see whether there is one or more feasible unitary solution for the whole area. The Committee now had clear guidance on what constitutes a solution which "in aggregate" met the five criteria, and its approach to aggregation was not erroneous, although the financial consultants would need to re-evaluate that notion in light of the new guidance. However, obiter, the judge had considerable sympathy with East Devon's view that a unitary whole Devon would fail the leadership criterion because it would be just too big. (8 January 2009)

If you wish to discuss any of the items noted in this section please contact Peter Keith-Lucas.

Vetting and Barring

Safeguarding Vulnerable Groups Act 2006 (Prescribed Information) Regulations 2008 (SI 2008/3265): these regulations, which come into force on 20 January 2009 and 12 October 2009, prescribe the information that, in specified circumstances, must be provided to the Independent Barring Board (IBB) under the 2006 Act and the information that may be provided to the IBB in other circumstances. The duties and powers to provide information arise where it may be appropriate for a person to be considered by the IBB for inclusion in one or both of the barred lists established under s.2 of the Act or where the IBB is considering removing a person from a barred list. (16 December 2008)

If you wish to discuss any of the items noted in this section please contact Caraline Johnson.

Wales

Learner Travel (Wales) Measure 2008: this Welsh Assembly Measure provides for the travel of school pupils and young people in education or training aged 16-19 in Wales. It replaces the law for travel for learners in Wales set out in the Education Act 1996 (as amended) and consolidates and simplifies current statutory provisions. It comes into force on a day or days to be appointed by the Welsh Ministers. (10 December 2008)

Collaboration Arrangements (Maintained Schools and Further Education Bodies) (Wales) Regulations 2008 (SI 2008/3082 (W.271)): these regulations, which came into force on 31 December 2008, enable governing bodies of maintained schools and further education bodies in Wales to develop joint working arrangements and, if they wish, to delegate the exercise of their functions to one or more joint committees. (22 December 2008)

If you wish to discuss any of the items noted in this section please contact Caraline Johnson.

Bevan Brittan's Local Government Training Programme

Bevan Brittan has developed a well-recognised programme of training designed to assist local authorities in successfully implementing legal change. Led by key members of our local authority team, each session will clearly explain the key aspects of the law and the implications for local government. Using case studies and carefully selected complementary speakers, they will assist attendees in realising the full benefits of implementation and the dangerous pitfalls in failure to act

Forthcoming seminars in 2009:

		12 February (London): Local authorities - dealing with financial failures and the credit crunch
		24 February (Bristol), 26 February (Birmingham) and 27 February (London): Employment law workshop: Law in a cold climate – options short of redundancy
		4 March (London): Misconduct and the Code (organised by Local Government Group)
		10 March (London): Improving local democracy – the LDEDC Bill (organised by Local Government Group)
		17 March (Birmingham): Probity in planning
		21 April (London): Competitive dialogue
		23 April (Birmingham): Using charities and social enterprises in outsourcing services
		29 April (London): Implementing Codes of Conduct – the revised Members’ Code and the new Employees’ Code (organised by Local Government Group)
		5 May (Birmingham): Procurement update
		5 May (Bristol), 6 May (Birmingham) and 8 May (London): Employment law workshop: Disciplinary and grievance procedures – the new Acas Code of Practice
		6 May (London): Dealing with Members (organised by Local Government Group)
		12 May (London): Outside bodies – governance and liabilities of Members and Officers on outside bodies (organised by Local Government Group)
		19 May (London): Joint ventures in local government

If you wish to attend any of these sessions, or if you would like a copy of our Local Government Training Programme 2009 desk calendar, please contact our Events team.