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 May to July 2014. For those who are seeking the latest on education law, we will shortly be publishing a regular digest focusing solely on that topic.
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:
- Challenges that have been made to local authority decision-making.
- Various legislative and other developments of interest to local authority lawyers.
CHALLENGES TO LOCAL AUTHORITY DECISION-MAKING
ECtHR confirms Supreme Court decision that local authority entitled to withdraw funding for night-time carer (McDonald v United Kingdom)
Local authorities will be relieved that the European Court of Human Rights (ECtHR) has confirmed the Supreme Court’s decision that a local authority was entitled to withdraw funding for a night-time carer for the applicant, who had alleged that the decision was an unjustified interference with her private life under Article 8 of the European Convention on Human Rights. The ECtHR recognised that the council had gone to great lengths to consult and reach agreement with the applicant and her partner, and that the decision to reduce her level of night-time care was proportionate, when balanced against the economic well-being of the council and the needs of other care users.
Council’s scheme of delegation authorised an officer to take planning permission decision (High Court) (Pemberton International Limited v London Borough of Lambeth)
Local authorities may wish to consider reviewing their constitutions and schemes of delegation, given the judge’s criticism in this case that the council’s documentation was not well structured or clearly drafted. Although the High Court held that the council’s scheme of delegation authorised principal planning officers to exercise certain functions and was not a violation of section 101 of the Local Government Act 1972, the court quashed the planning decision. It did so on the basis that the decision-making process was flawed as the officer, when taking the decision, had failed to have regard to a material planning consideration.
Council in breach of contract by freezing care home rates (High Court) (Abbeyfield Newcastle Upon Tyne Society Limited v Newcastle City Council)
In a case that illustrates the difficulties for local authorities of balancing their budgets with the costs of meeting their statutory responsibilities, the High Court has held that the council was in breach of contract by freezing care home rates. It rejected the council’s argument that by continuing to provide a service to residents and receiving payment, the claimant care home provider had accepted the price by conduct.
LEGISLATIVE AND OTHER DEVELOPMENTS OF INTEREST
Care Bill 2013-14 receives Royal Assent
The Care Bill 2013-14, which has received Royal Assent to become the Care Act 2014, will introduce:
- A countrywide minimum eligibility criteria to prevent local authorities making savings by increasing their thresholds.
- The power to introduce personal budgets in order to allow people to choose tailored care as part of their support plans.
- A cap of £72,000 on the costs that people will have to spend on care regardless of how much they have in savings and assets.
The LGA has published a guide to the Act.
Local Audit and Accountability Act (Commencement No 3) Order 2014 made
On 18 June 2014, the Local Audit and Accountability Act 2014 (Commencement No 3) Order 2014 brought into force section 38 of the Local Audit and Accountability Act 2014 (LAAA 2014), relating to the duty of smaller authorities to publish information. Section 38 amends section 2 of the Local Government, Planning and Land Act 1980, to enable the Secretary of State to issue a transparency code that covers the smaller authorities that will be exempt from the requirement for automatic external audit under the Act. The measure is intended to facilitate local accountability.
Regulations made under the Local Audit and Accountability Act 2014
Under the LAAA 2014, various regulations relating to the local authority audit regime have been made, including the:
- Local Audit (Professional Qualifications and Major Local Audit) Regulations 2014.
- Local Audit (Liability Limitation Agreements) Regulations 2014.
- Public Interest Reports and Recommendations (Modifications of Consideration Procedure) Regulations 2014.
- Local Audit (Auditor Resignation and Removal) Regulations 2014.
Regulations made amending existing Welsh standing orders regime
Welsh local authorities will be busy revising their existing standing orders to ensure compliance with the Local Authorities (Standing Orders) (Wales) (Amendment) Regulations 2014, which were laid before the National Assembly for Wales on 10 June 2014. In particular, changes will have to be made to reflect the fact that the new Regulations amend the Local Authorities (Standing Orders) (Wales) Regulations 2006, so that where a relevant authority in Wales proposes appointing a chief officer on a salary of £100,000 or more per annum, it must advertise the vacancy externally. The Regulations, which came into force on 1 July 2014, require relevant authorities to revise their existing standing orders to ensure compliance within ten weeks of that date.
White Paper and consultation published on reforming local government in Wales
The Welsh Government’s White Paper, Devolution, Democracy and Delivery – Reforming Local Government, sets out the WG’s intentions for the future of local government in Wales and seeks views on the WG’s plans. These include measures to reduce the number of Welsh local authorities through mergers, including voluntary mergers. Although it is the intention not to introduce legislation to bring local authority mergers about before May 2016, a draft Bill for consultation will be published in Autumn 2015, and the White Paper sets out a proposed timetable for mergers to take place after that.
Well-being of Future Generations (Wales) Bill 2014 introduced
On 7 July 2014, the WG introduced the Well-being of Future Generations (Wales) Bill 2014, which sets out 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 (the “sustainable development principle”). The Bill also proposes putting Public Services Boards and local well-being plans on a statutory basis in order to simplify existing requirements in relation to integrated community planning and will establish a Future Generations Commissioner for Wales. The Commissioner’s role will be to advise and support Welsh public authorities in carrying out their duties under the Bill.
DH publishes advice for local authorities on scrutinising health services
In connection with their roles under the Health and Social Care Act 2012, the Department of Health has published guidance to assist local authorities in their role of scrutinising local health organisations, to ensure that such organisations provide effective and efficient services and to encourage improvement. The guidance also explains the Local Authority (Public Health, Health and Wellbeing Boards and Health Scrutiny) Regulations 2013.
Public sector exit payments: consultation published
HM Treasury has published a consultation on the government’s plans to legislate for the recovery of exit payments when high earners working in the public sector return to the same part of the public sector within 12 months of leaving it. The proposals being consulted on would require high-earning public sector employees or office holders to repay exit payments on a pro-rata basis should they return to the public sector within 12 months.
Guidance on naming and registering government websites published
On 17 June 2014, the Cabinet Office and the Government Digital Service published guidance for local and central government on how to apply for a .gov.uk domain, the naming conventions and the conditions of use.
LGO publishes social care provider complaints statistics
For the first time, the Local Government Ombudsman has published its complaints statistics relating to English adult social care providers (both private and local authority). The report states there were 2,456 registered complaints and enquiries of which 46% were upheld, and that a majority of the complaints that were received in 2013 focused on assessment and care planning issues.