Adult Social Services

Welfare Reform Bill: this Bill has received its 1st Reading in the House of Commons. Part 2 relates to disabled people's right to control provision of services. It aims to enable disabled people aged 18 or over to have greater choice and control over the way certain services are provided to or for them by defined public authorities (including local authorities). The clause does not create a right to control but has a series of enabling powers which will allow the Secretary of State to make regulations that confer new rights on disabled people, referred to as 'the right to control'. The rights include making direct payments to a disabled person so that the person can purchase the services they require instead of the authority arranging for their provision. The Bill also enables pilot schemes to be set up. (7 January 2009)

Trent SHA v Jain [2009] UKHL 4 (HL): this case considered whether the SHA owed a duty of care in negligence to registered care home proprietors when preparing and making an application without notice under the Registered Homes Act 1984 s.30 (now s.20 of the Care Standards Act 2000) to cancel their nursing home registration. J had owned and run a registered nursing home for nine years. The SHA believed that the physical conditions in the home were unsatisfactory due to building works and it obtained an order without notice for the immediate cancellation of J's registration and all residents were immediately removed from the nursing home. J appealed to a Registered Homes Tribunal which found that there had been no justification for the SHA's failure to warn J that the application was to be made, and that none of the matters raised by the authority had warranted the immediate closure of J's nursing home. J brought a claim for negligence against the SHA for the economic loss they had suffered. The Court of Appeal held that the SHA did not owe J a duty of care.
The House of Lords held, dismissing J's appeal, that where action was taken by a state authority under statutory powers designed for the benefit or protection of a particular class of persons, a tortious duty of care would not be owed by the authority to others whose interests might be adversely affected by the exercise of the statutory power, because the imposition of such a duty might inhibit the exercise of the statutory powers and be potentially adverse to the interests of the class of persons the powers were designed to benefit or protect. It was clear that the SHA owed no duty of care in tort to J: the protection of parties to litigation from damage caused to them by the litigation had to depend upon the control of the litigation by the court or tribunal in charge of it, and the rules and procedures under which the litigation was conducted. However, there was a lamentable lack of safeguards for absent respondents in the statutory procedures under s.30 of the 1984 Act. The procedures ought to be amended to incorporate safeguards on the lines of those applicable to applications without notice in the High Court, otherwise the procedure under s.20 of the 2000 Act would continue to appear to be incompatible with the ECHR. Magistrates faced with similar ex parte applications should probe the case made by health authorities and satisfy themselves whether there was such a risk that no other course, other than the making of an immediate cancellation order, could be followed. (21 January 2009)

DH: Protection of Vulnerable Adults (POVA) scheme in England and Wales for adult placement schemes, domiciliary care agencies and care homes - a practical guide: this document gives guidance on, and background to, the POVA scheme, with FAQs. Individuals should be referred to, and included on, the POVA list if they have abused, neglected or otherwise harmed vulnerable adults in their care or placed vulnerable adults in their care at risk of harm. By making statutory checks against the list, providers of care must not offer such individuals employment in care positions. This version of the guidance supersedes the 2006 edition. (16 January 2009)

DH: Valuing people now - a new three-year strategy for people with learning disabilities: sets out the Government's strategy for improving services for people with learning disabilities across health, housing, employment and community care services for the next three years. Fundamental elements of the strategy are improving training, commissioning of services and strengthening local structures to meet the needs of people with learning disabilities. Progress will be reviewed annually. A new national Learning Disability Programme Board and Regional Boards will ensure the strategy works, share good practice and provide a forum for stakeholder groups to discuss progress and concerns.
The DH has also published its delivery plan setting out the governance structure and the actions, with timescales and responsibilities, that will be taken to support the implementation of the Valuing People Now three-year strategy. (19 January 2009)

DH: Supporting people with long term conditions - commissioning personalised care planning: a guide for commissioners: provides commissioners of health and social care services with the information and support they need to embed personalised care planning in their localities. This should ensure that people with long term conditions receive more individualised care and services to help them manage their conditions better and achieve the outcomes they want for themselves. The guide has been developed in collaboration with stakeholders across health, social care, the voluntary and independent sectors and patient representative groups. (19 January 2009)

DH: Common Assessment Framework for Adults - a consultation on proposals to improve information sharing around multi-disciplinary assessment and care planning: seeks views on how best to improve information sharing across health, social care and wider community support services. The consultation aims to create a more efficient and transparent system of information sharing, to avoid patients having to answer the same questions several times and ensure that people receive the best quality care and support. It covers: the rationale for improving information; how assessment and care planning should be undertaken (the principles); what information should be commonly shared and with whom; and the IT approaches that would enable this to take place within appropriate arrangements for consent, confidentiality and security. Comments are required by 17 April 2009.
There will also be a number of demonstrator sites, local authority led partnerships who will work to test and evaluate the practical changes that will need to be made and will take into account people's feedback from the consultation. The first wave of demonstrator sites is expected to start shortly, and there will be a call for interest in a second wave in the summer. The DH is holding a series of consultation events around the country in late January and February. (21 January 2009)

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

Anti Social Behaviour

DCLG: Guidance on the use of Family Intervention Tenancies: s.297 of the Housing & Regeneration Act 2008 provides local housing authorities and RSLs with the power to offer Family Intervention Tenancies, as from 1 January 2009, where the tenant is likely to be evicted on the grounds of anti-social behaviour or in the opinion of the landlord could have been so evicted and to support the provision of behaviour support services. This guidance outlines what considerations social landlords, family intervention projects and other agencies involved in delivering support to households who have been involved in anti-social behaviour should make when considering the use of Family Intervention Tenancies. (19 January 2009)

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

Charging

DCLG: Local authority property search services - costing and charging guidance: sets out a methodology for local authorities to charge for access to property search records. In setting costs for property search services, authorities must comply with the Local Authorities (Charges for Property Searches) Regulations 2008 (SI 2008/3248). The guidance establishes a framework setting out what a local authority can charge for and what it cannot; it then provides definitions of the type and maturity of data to which the guidance applies. The costing principles on which it is based are consistent with existing local authority accounting arrangements. (22 January 2009)

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

Children's Services

DCSF: New leadership training for Directors of Children's Services to start from this year: announces a new leadership programme for Directors of Children's Services (DCS) to start in Autumn 2009. The programme, which will be led by the National College for School Leadership and developed with the Association of Directors of Children's Services and the Children's Workforce Development Council, has been set up in light of the Haringey Baby P case. It will enable all future chiefs of local authority children's services to gain experience in areas outside their own specialism before they are appointed, and ensure that all DCSs have the skills and experience they need to provide the dynamic leadership children's services need. (8 January 2009)

DCSF: Children at heart of New Opportunities White Paper: the Government has issued a White Paper setting out plans for investment in communities, families and citizens that will give all people the best possible chance of fulfilling their potential. Proposals in the paper include: offering teachers a payment of £10,000 to work at under-performing secondary schools; extending free nursery and childcare places to 15 per cent of the most disadvantaged families with two-year-olds; and a guarantee that vulnerable mothers will have access to a dedicated family nurse to help them through pregnancy and the first two years of childhood. This press release gives a detailed summary of the new policies and funding package of support for children. For more information see the New Opportunities White Paper website. (13 January 2009)

DCSF: Revised statutory guidance for local authorities on children missing from home or care: seeks views on revised guidance for local authorities on supporting children and young people who go missing from home or care. The guidance serves to safeguard all runaways and to redress the imbalance that currently exists between services offered to runaways from the looked-after population and those who run from home. Comments are required by 8 April 2009. (14 January 2009)

DCLG: Local index of child well-being 2009: this index represents the first attempt to create a small-area index exclusively for children in England. It is an index of child well-being rather than an index of deprivation, mainly because it contains variables that are not strictly related to deprivation. Child well-being is generally represented by how children are doing in a number of different domains of their life: Material well-being; Health; Education; Crime; Housing; Environment; and Children in need. The index follows a similar approach, structure and methodology as that used in the index of multiple deprivation for 2007. (22 January 2009)

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

Economic Development

HM Treasury: Business rates supplements - a consultation on draft guidance to local authorities: the Business Rate Supplements Bill that is currently before Parliament makes provision for county councils, unitary councils and the GLA to levy a supplement on the National Non-Domestic Rate (or business rate). Authorities will be able to use the proceeds to fund additional investment aimed at promoting the economic development of local areas. This paper seeks views on draft guidance on the use of such supplements. Comments are required by 17 April 2009. (23 January 2009)

LGA: Back to business - local solutions: this report, produced jointly with the British Chambers of Commerce, looks at how councils can work with local small businesses to help them through the downturn and prepare local economies to recover strongly. It sets out examples of excellent business and council engagement and identifies measures that can support the urgently needed flow of cash to business. It also highlights the need for central government to work with councils and business to join up support for local economies. (23 January 2009)

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

Education

R (TS) v Bowen (Chair of SENDIST) and Solihull MBC [2009] EWHC 5 (Admin) (Admin Ct): the Administrative Court has held that the fact that a child with autistic spectrum disorder required a consistency of approach going beyond the school day did not mean either that that was necessarily an educational need or that it could only be met by way of a placement at a residential secondary school. (14 January 2009)

DCSF: Local authorities to bid for free school meal pilots: announces a new £20m, two year pilot scheme for free school meals that will test how free school meals impact on the education and health of children. Participating local authorities and PCTs will be expected to join the pilots on the basis of matched funding. The pilots will formally start in the summer term, with pupils receiving their free lunch from September 2009. The summer term will be used to prepare and establish the pilots and the evaluation arrangements. The pilots will run to July 2011. Volunteers are also being sought to act as control groups where current free school meal eligibility will be maintained. The press release gives details of the criteria for bidding authorities and has a list of local authorities that match the criteria and are eligible to bid for the pilots. (15 January 2009)

DCSF: Statutory guidance (revised) for local authorities in England to identify children not receiving a suitable education: updated guidance on local authorities' duty under s.4 of the Education and Inspections Act 2006 to make arrangements to identify children missing education in their area. The revised guidance makes clear that local authorities have a duty to make arrangements to enable them to establish that every school-age child is receiving a suitable education, and clarifies the roles and responsibilities of parents and local authorities to provide a suitable education for children. (19 January 2009)

DCSF: Independent review of home education: the Government has commissioned an independent review of home education to assess whether the current system of supporting and monitoring home education is the right one. The review will be led by Graham Badman, former Managing Director of Children, Families and Education at Kent CC. He will publish his report in May 2009.
It has also issued a consultation paper seeking views on the current home education system - comments are required by 20 February 2009. (19 January 2009)

DCSF: New trust schools forge powerful allegiances [sic]: announces that approval has been given to 92 more schools to join the Trust Schools programme, under which they enter long-term partnerships with local charities, businesses, other schools and universities to improve local education. This brings the total number of planned Trust Schools to 444, with 124 Trust Schools already open - see the full list of the new schools working towards Trust status. (19 January 2009)

Education (Admission Appeals Arrangements) (England) (Amendment) Regulations 2009 (SI 2009/25): these regulations make a minor amendment to SI 2008/3092 so as to correct a discrepancy between the commencement of those Regulations and the application of the revised School Admission Appeals Code. The effect of the amendment is that the revised Code will apply to all appeals heard on or after 10 February 2009. (19 January 2009)

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

Finance

DCLG: Local government finance settlement 2009/10: the Local Government Finance Report (England) 2009-10 has been laid before Parliament, setting out the amounts of revenue support grant and non domestic rates to be paid to local authorities in 2009-10, and the basis of their distribution. The Government has also published the provisional 2010/11 settlement. It states that the settlement represents a continued real-terms increase in investment in local government, which will allow authorities to continue to deliver improving services at an affordable cost. Total formula grant for 2009-10 will be £780m or 2.8 per cent higher than in 2008-09 on a like-for-like basis. Specific grants, such as the Dedicated Schools Grant, are on top of these figures and bring the total increase in funding for local authorities to 4.2 per cent in 2009-10. This web page links to relevant documents, including: a letter to chief executives; the Local Government Minister's written statement; guides to the settlements; tables of grants to local authorities; and other supporting technical material. (21 January 2009)

DCLG: Application of discretionary council tax powers for empty homes: this study investigates the impact that the discretionary application of the 50 per cent council tax discount on empty homes is having on bringing such properties back into use. The report indicates that no firm evidence could be found concerning the general relationship between discretionary use of the discount and the extent to which empty properties are brought back into use. Nevertheless, there is evidence to suggest that local authorities prefer to have a discretionary power to remove, reduce or retain the discount as this allows them greater scope to develop policies that are more suited to local circumstances. (22 January 2009)

DCLG: Changes to the revenue and capital rules for new council housing - Consultation on excluding new council housing from Housing Revenue Account subsidy and pooling: seeks views on proposed changes to the revenue and capital rules that apply to new council housing. The changes would exempt specified new properties from the redistributive effects of the HRA subsidy system and from pooling of capital receipts, and thus enable councils to able to keep all the rental income from any homes they build, as well as keep the receipts from any of those homes which are later sold through Right to Buy. Comments are required by 17 April 2009. (21 January 2009)

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

Health and Safety

MoJ: Managing the safety of burial ground memorials: practical advice for burial ground operators on managing the risks associated with unstable memorials. Although the risk of injury from unstable gravestones is very low, cemetery managers are sometimes uncertain what they need to do to comply with their health and safety responsibilities. There has also been some public concern that memorials have been supported or laid down unnecessarily. The new guidance has been developed in response to requests for more detailed advice on managing memorial stock. (16 January 2009)

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

Judicial Review

R (Scott) v Hackney LBC (Unreported, 20 January 2009) (CA): S appealed against a decision to make no order for costs where his application for judicial review of the local authority's decision regarding the care of his son, who had severe learning difficulties in the autistic spectrum, was withdrawn the day before trial. The judge made no order for costs save as to a detailed assessment of S's publicly funded costs, holding that while S had had a strong claim, the local authority had a strong defence and he was unable to conclude that S would have succeeded if the matter had gone to trial. S submitted that the judge had applied the wrong test, failed to take into account the conduct of the local authority and failed to consider the effect of the system on public funded lawyers when making no order for costs.
The court held that the judge had correctly exercised his discretion when making no order for costs in compromised judicial review proceedings between a publicly funded litigant and a local authority. The decision was within the judge's discretion and it was not open to the court to overturn the decision on the basis that the funds received were too low. The court stated, obiter, that where applications for costs were made, judges should bear in mind the need to make reasonable and proportionate attempts to ascertain the position between the parties and a judge must not be tempted to readily use the fall back position of making no order for costs.
The judgment is available on Lawtel (password required).

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

Meetings

R (Etherton) v Hastings BC (Unreported, 22 January 2009) (Admin Ct): E applied to quash the defendant local authority's decision to grant planning permission and conservation area consent for a building development. E contended that procedural irregularities regarding a site visit vitiated the planning committee's decision so that the local authority's decision should be quashed. The authority's planning protocol contained guidance as to how the planning committee should carry out its duties, including the conduct of site visits. Three members of the planning committee attended a site visit to the proposed development but the remaining members failed to attend, in part because they did not receive letters informing them of the site visit; in addition the site visit attendance note was not completed. When the matter came before the planning committee for a vote four of the ten members withdrew, the majority on the basis that they did not have sufficient relevant knowledge to participate in the decision; of the remaining members, only two had attended the site visit and the other members claimed to have knowledge of the site.
The court held, refusing E's application, that, while there had been some failures on the part of the local authority to adhere to the guidance contained in the protocol, it could not be said that those failures had prejudiced E or that those failures were significant. In particular, there was nothing to suggest that the members of the planning committee who had voted had not been a properly constituted planning committee. Moreover there was no evidence to suggest that the planning committee would have reached a different conclusion if all of its members had attended the site visit.
The judgment is available on Lawtel (password required).

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

Structural Change

Local Government (Structural Changes) (Further Financial Provisions and Amendment) Regulations 2009 (SI 2009/5): these regulations, which come into force on 29 January 2009, make further transitional provisions for the seven areas in England that are changing to unitary status. They concern matters relating to finance, which are relevant to councils which will be abolished on the reorganisation date (“predecessor councils”) and to the single tier councils that will succeed them (“successor councils”). They provide for certain financial matters relevant to the functions of predecessor and successor councils, in particular: the dates on which the collection and general funds of successor councils are to be established; the treatment of surpluses and deficits in the collection funds of predecessor or successor councils; and the calculation of the budget requirement by successor or shadow councils in whose areas Charter Trustees are likely to be established to preserve and protect the historic traditions associated with that area. (7 January 2009)

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

Vetting and Barring

R (Wright) v Secretary of State for Health [2009] UKHL 3 (HL): W, a registered nurse, appealed against the decision that s.82 of the Care Standards Act 2000 should be construed as giving care workers the right to make representations before being placed on the list of people considered unsuitable to work with vulnerable adults (the "POVA list"), unless the Secretary of State reasonably considered that the delay resulting from affording such an opportunity would place a vulnerable adult at risk of harm. W argued that the lack of a right to an oral hearing before provisional listing and the low threshold applied to such listing breached her rights under Art.6 and Art.8 ECHR.
The House of Lords held, allowing the appeal, that s.82(4)(b) of the Care Standards Act 2000 was incompatible with the Convention rights. The fact that a "civil right" was involved was uncontroversial, and provisional listing amounted to the "determination" of a civil right, even though the listed person would eventually have the opportunity of taking the case before the Care Standards Tribunal. The relevant scheme breached Art.6(1) ECHR as the process did not begin fairly, by offering the care worker an opportunity to answer the allegations made against her, before imposing on her possibly irreparable damage to her employment or prospects of employment; nor was the Court of Appeal's solution sufficient to solve the problem. Regarding Art.8 ECHR, the scheme had to be devised in such a way as to prevent possible breaches of the Art.8 rights. The procedures had to be fair in the light of the importance of the interests at stake. The low threshold for provisional listing added to the risk of arbitrary and unjustified interferences and thus contributed to the overall unfairness of the scheme. (21 January 2009)

Safeguarding Vulnerable Groups Act 2006 (Transitory Provisions) Order 2009 (SI 2009/12): this Order, which came into force on 20 January 2009, provides for the functions of the Independent Barring Board (IBB) during the "relevant period". The relevant period is defined in art.1 as the period starting on the day after the Order is made and ending on the day that s.3 of the 2006 Act comes into force for all purposes. The beginning of that period marks the point from which IBB starts to replace the Secretary of State as the body which decides who should be barred from working with children and/or vulnerable adults. (13 January 2009)

Safeguarding Vulnerable Groups Act 2006 (Prescribed Criteria and Miscellaneous Provisions) Regulations 2009 (SI 2009/37): these regulations, which came into force on 20 January 2009, prescribe the criteria which determine whether a person should be included automatically in the children’s barred list or the adults’ barred list maintained by the Independent Barring Board under s.2 of the Safeguarding Vulnerable Groups Act 2006. (13 January 2009)

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

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 hard copy of our Local Government Training Programme 2009 desk calendar, please contact our Events team.