PLC Public Sector reports:
Make sure your “to do” is complete by reviewing our list of recommended actions based on this week’s email.
This week we have actions for education, housing, local government and employment lawyers to name just a few.
Race Relations Act 1976: The recent Court of Appeal decision in E v The Governing Body of JFS is a timely reminder for clerks advising Admission Appeal Panels that, as the School Admissions Code makes clear, it is unlawful for admission authorities to discriminate against applicants on the basis of race, colour, nationality or national or ethnic origin and they have a statutory duty to promote racial equality.
National Minimum Wage and Sleep-In Allowances: Following a recent EAT decision, lawyers advising commissioners of social care and similar services should be aware that workers providing a sleep-in service are entitled to be paid the National Minimum Wage (NMW) in respect of those periods, whether or not they are woken. In contrast, note that payments for being on-call are excluded from NMW calculations. Tenders for such services should specify that providers’ bids should take into account the requirements in respect of the NMW.
Managing Flood Risk: Planning advisers should note the initial review of Planning Policy Statement 25 which makes recommendations for dealing with flood risk in the planning process. See also PN, managing Flood Risk.
Planning and the Habitats Directive: Planning advisers should note the decision in Woolley v Cheshire which provides some guidance on dealing with planning applications to which the Habitats Directive applies.
Charging for services: Given the High Court’s finding in B v Cornwall County Council, those responsible for carrying out social care charging assessments should be reminded of the importance of consulting with the service user and their representatives and be aware that if they haven’t consulted and make a mistake in the assessment, then they will need to start the assessment process again and undertake a proper consultation. They should also remember to have regard to the statutory guidance.
Teaching staff with responsibility for looked after children: HR staff in local authorities who are responsible for approving the appointment of school teachers should be aware of these new regulations and ensure that those teachers who have responsibility for promoting the educational achievement of looked after children have the prescribed qualifications.
Education and Skills Act 2008: Education lawyers should be aware that on 1 September 2009 section 81 of the ESA 2008 comes into force. This will require maintained secondary schools to provide a programme of careers education and relevant information to pupils.
Suitability of rental property: Given that it is a legal requirement for landlords to maintain gas facilities in a safe condition, councils should take note of the LGO’s decision in Havering and ensure that any certificates provided to the tenant at handover properly reflect the condition of the gas boiler and that rental properties are fit for habitation.
Havering was also criticised by the LGO because of its decision to recover housing benefit claimed by the complainant at a time when he had signed the tenancy and was expecting to be living at the property. In the event, the complainant had incurred the expense of the rental costs of two properties. The decision reinforces the importance for different service departments within councils to pass on key information or inform the individual of the correct department to contact. In this case, if Homes in Havering had informed the Revenue & Benefits services that the property was uninhabitable, a decision might have been taken that it was inappropriate, on the particular facts of the case, to recover the housing benefit.
Importance of proper decision-making: Those advising planning committees should take note of the LGO’s decision in Bromsgrove. If committee members decide not to follow the advice of an officer and take a decision that is contrary to the officer’s recommendation, then the officer should:
• Remind the members of the requirement to give reasons as to why they have rejected the officer’s recommended advice.
• Ensure proper reasons for the members’ decision are given and that a written record is taken at the committee meeting as to why members reached the decision that they did.
For more information on decision-making and how to avoid a legal challenge, see our practice note on decision-making.
Guidance on joint standards committees: Monitoring officers and members of standards committees should be alerted to the new guidance published by the Standards Board for England on establishing and operating joint standards committees.
Immediate change to the Housing Revenue Account system: Although a consultation is promised before 21 July 2009 on reforming the housing revenue account system, from 30 June 2009 local authorities can retain in full the rent and capital receipts from new homes.
Second home council tax discount: The High Court decision in Lever v London Borough of Southwark makes clear that an individual’s entitlement to council tax discount under the 2003 Regulations for a second home has to be construed narrowly given that the condition in paragraph 1(1)(a) of the Schedule to the Regulations was intended to refer to dwellings connected with the duties of employment, such as a school caretaker’s house in the school grounds.
Business Rate Supplements: Monitoring officers and finance directors should note the Business Rate Supplements Bill giving the power to higher-tier authorities to charge their non-domestic rate payers a business rate supplement for projects promoting economic development in their areas. For more information see our new Practice Note on Business Rate Supplements.
Consultations: This week saw consultations on banning age discrimination in services and public functions and on changes intended to give greater flexibility to existing planning permissions. There are also likely to be a number of consultations arising out of the Education White Paper.
If you wish to submit your views on any of the actions we have recommended, or would like to highlight any other issues that you feel need action by public sector lawyers, please feel free to submit a comment below.