This is the latest in our series of quarterly local government update blogs, which will enable readers to catch up on the most important cases, issues or developments in local government from February 2015 to April 2015.
Please feel free to submit a comment below or send us an Ask query if you have any views on the cases, issues, or legal developments covered or if you think we have missed something that should be brought to the attention of local government practitioners.
In this post we look at:
- Cases of interest to local authorities.
- Various legislative and other developments of interest to local authority lawyers.
CASES OF INTEREST TO LOCAL AUTHORITIES
Council policy on disability living allowance and discretionary housing payments held unlawful (R (Hardy) v Sandwell Metropolitan Borough Council)
In a significant decision for local authorities, the High Court has held that a local authority’s policy of taking into account the care component of disability living allowance when assessing the amount of a discretionary housing payment was unlawful. Since many authorities do take the care component of the disability living allowance into account as income when calculating discretionary housing payments, it is likely that local authorities will be changing their policies to ensure that disability living allowances are no longer taken into account when making such calculations.
Assets of community value: realistic prospect of community use (Evenden Estates v Brighton and Hove City Council and another)
The First-tier Tribunal has found that, where a developer’s planning application for change of use from a public house to residential use had not been determined, the future of the property was uncertain and the property could qualify as an asset of community value under section 88(2)(b) of the Localism Act 2011 (LA 2011).
High Court challenge to consultation on adult social care cuts fails (R (T) v Trafford Metropolitan Borough Council)
On 18 February 2015, the High Court rejected a claim that Trafford Borough Council, in consulting on cuts to its adult social care budget, was under a common law duty to include information on alternatives to its proposal, which would result in a lesser reduction of funding for adult social services. The alternatives that were suggested included increasing council tax and using money from the council’s reserves. The case is a useful discussion of the extent of the common law duty to consult where there is no statutory duty to do so.
Council entitled to withdraw flexible school transport that enabled disabled pupil to attend after-school club (P v East Sussex County Council)
In a December 2014 decision, which was only reported in February 2015, the High Court dismissed an application for judicial review challenging a council’s decision to withdraw flexible transport arrangements for a pupil with special educational needs to enable her to attend medical appointments and after-school clubs. It did so on the basis that the duty to provide transport under section 508B of the Education Act 1996 related to the compulsory part of the school day only and the council, in making the decision to withdraw the flexible arrangements, had complied with its public sector equality duty under section 149 of the Equality Act 2010.
First-tier Tribunal considers what amounts to a “local connection” under the community right to bid regime (St Gabriel Properties Ltd v London Borough of Lewisham)
The First-tier Tribunal has dismissed an appeal against the local authority’s decision to list a pub as an asset of community value (ACV) under the community right to bid regime set out in the LA 2011. It rejected the appellant’s arguments that the nomination was not valid as it had been made by a branch of a national organisation which did not have the requisite “local connection” as required by section 89 of the LA 2011 and that a pub could not further the “social wellbeing” of the community. The Tribunal held that the ACV legislation should be treated in a hybrid manner allowing a branch to rely both on the status of its parent organisation as a “voluntary or community body” and on its own activities at a local level to satisfy the necessary nomination requirements, and that a pub was capable of furthering the social wellbeing of a community.
VARIOUS LEGISLATIVE AND OTHER DEVELOPMENTS OF INTEREST
DCLG withholds council’s new burdens funding as sanction for transparency failings
The first evidence of sanctions being imposed for a local authority’s failure to comply with the local government transparency code is the Minister for Local Government’s letter to Rother District Council confirming that new burdens funding for 2014-15 will be withheld as a result of the council’s failure to publish certain transparency data.
Hopefully, the issuing of a local government code on 27 February 2015, together with a set of accompanying FAQs, will help local authorities understand the transparency data requirements. The new code came into force on 1 April 2015. In addition, the Local Government (Transparency Requirements) (England) Regulations 2015, Local Government (Transparency) (Descriptions of Information) (England) Order 2015 and the Smaller Authorities (Transparency Requirements) (England) Regulations 2015 were also published, together with a House of Commons Library note on local government transparency.
Care Act 2014
On 1 April 2015, the Care Act 2014 and Children and Families Act 2014 (Consequential Amendments) Order 2015, which deals with the provision of care and support for adults and support for adult carers in England, came into force. Also on that date, the Care Act (Transitional Provision) Order 2015 came into force. The Order sets out the arrangements in respect of persons receiving support and services before 1 April 2015 in respect of issues such as their continued eligibility, the enforcement of debts, deferred payment agreements and ordinary residence.
On 11 March 2015, two pieces of secondary legislation relating to the Care Act 2014 were laid before Parliament. These were the Care Act 2014 (Consequential Amendments) (Secondary Legislation) Order 2015 and the Care and Support (Miscellaneous Amendments) Regulations 2015.
Local Government (Religious etc Observances) Bill receives Royal Assent
On 30 March 2015, the Local Government (Religious etc Observances) Bill received Royal Assent to become the Local Government (Religious etc Observances) Act 2015. The Act inserts three new sections in Part 7 of the Local Government Act 1972. It will give local authorities in England, and a range of other authorities in England such as fire and rescue authorities and combined authorities, the power to include prayers or other religious or philosophical observance as an item of business should they wish to do so and to support, facilitate or be represented at religious or similar events, such as the annual commemoration on Remembrance Sunday.
Local Government (Review of Decisions) Bill 2014-15 receives Royal Assent
On 26 March 2015, the Local Government (Review of Decisions) Bill 2014-15 received Royal Assent to become the Local Government (Review of Decisions) Act 2015. The Act, which inserts new provisions into the Local Government Act 1974 relating to local authorities’ decisions to ban events on health and safety grounds, will come into force on 25 May 2015.
Draft regulations providing an alternative procedure for making byelaws in England
The draft Byelaws (Alternative Procedure) (England) Regulations 2015 have been published by the Department for Communities and Local Government (DCLG) and are due to enter into force on 1 October 2015. They will apply to England only.
Consultation on proposals for strengthening Business Improvement Districts
On 25 March 2015, the DCLG launched a consultation on its proposals for strengthening Business Improvement Districts, which were introduced by Part 4 of the Local Government Act 2003 and enable businesses to work together alongside local authorities to effect improvements to the area in which they operate. The consultation closes on 19 June 2015.
Local government audit
On 23 March 2015, the Local Audit and Accountability Act 2014 (Commencement No 7, Transitional Provisions and Savings) Order 2015 was made. The Order commenced the majority of the provisions of the Local Audit and Accountability Act 2014 that had not been commenced.
On 12 February 2015, the Account and Audit Regulations 2015 were made. The Regulations, which came into force on 1 April 2015, revoke and replace the Accounts and Audit Regulations 2011 (although the 2011 continue to have effect in relation to financial years ending on or before 31 March 2015) and contain provisions on the internal control and annual accounts and audit procedures that apply to relevant authorities (apart from health bodies) as defined in Schedule 2 to the Local Audit and Accountability Act 2014.
Setting up new town and parish councils: government to proceed with draft Legislative Reform (Community Governance Reviews) Order
On 11 March 2015, the DCLG announced that the government will proceed with the draft legislative reform order, which it published in December 2014, to make it easier to set up town and parish councils by proposing changes to the rules on how community governance reviews are carried out.
Consultation on revised best value statutory guidance in England published
On 27 February 2015, the DCLG published a consultation on revised best value statutory guidance for England. The consultation proposes to update the existing statutory guidance on best value to remind best value authorities of the requirements of the public sector equality duty under the Equality Act 2010 and the need to avoid “gold-plating” its provisions to impose additional contractual requirements on contractors. It also highlights the statutory duty that authorities are under to consider “social value” for services above the OJEU threshold at the pre-procurement stage and to suggest that authorities consider this concept wherever relevant.
Counter Terrorism and Security Bill 2014-15 receives Royal Assent
On 12 February 2015, the Counter-Terrorism and Security Bill 2014-15 received Royal Assent. Of particular interest to local authorities are the Part 5 Chapter 2 provisions on local panels (sections 36 to 38 and 40), the section 26 general duty on specified authorities to have due regard to the need to prevent people from being drawn into terrorism and the section 30 power to give directions.
Guidance published on child performance and activities licensing legislation
On 6 February 2015, the Department for Education (DfE) published guidance on child performance and activities licensing legislation in England, which is aimed at those who engage children for performances, parents and carers, local authorities and magistrates’ courts. It covers the changes introduced by the Children (Performances and Activities) (England) Regulations 2014, which came into force on 6 February 2015, and explains the licensing regime for children taking part in performances and activities in England, including how a licence should be applied for and on what grounds an application can be rejected.
Welsh Government publishes best practice guide to community asset transfers
The Welsh Government (WG) has published a best practice guide to community asset transfers in Wales. The guide will assist Welsh local authorities to understand such transfers, under which local authorities agree to lease public assets to voluntary and community organisations, often on preferential terms.
Well-being of Future Generations (Wales) Bill passed by National Assembly for Wales
On 17 March 2015, the National Assembly for Wales passed the Well-being of Future Generations (Wales) Bill. The Bill will set up a framework for specified Welsh public authorities to ensure that they meet present needs without compromising the ability of future generations to meet their own needs, and puts in place well-being goals for those Welsh public authorities in order to improve current and future well-being and sets out how those authorities can show they are working towards the well-being goals.
Welsh Government publishes further consultation on White Paper on reforming local government in Wales
On 3 February 2015, the WG published a further consultation and White Paper on reforming local government in Wales, following its previous consultation on the issue. The White Paper sets out the WG’s plans to complete the programme of Welsh local authority mergers and to establish a statutory Public Services Staff Commission. It also seeks views on the pay of Elected Members and the diversity of WG officials and states that the WG intends to give a general power of competence to Welsh local authorities.