PLC Public Sector reports:
This week’s actions are:
Article 5 and the deprivation of liberty: those with responsibility in local authorities for the welfare of children and adults who lack capacity should note the court’s decision in A Local Authority v A. This makes it clear that even when a local authority’s Article 5 obligations under the ECHR are engaged, they are limited to investigating the position and drawing the court’s attention to the circumstances if they deem it necessary. Article 5 does not provide authorities with a general power to “regulate, control, compel, restrain, confine or coerce” family life.
Children leaving care: the decision in Lambeth is a reminder to local authorities to ensure that the person preparing pathway plans is the person empowered to do so under the Children (Leaving Care) Act 2000 and not a personal adviser, at the risk of having the plan declared unlawful.
Data security: in the light of the enforcement action taken by the Information Commissioner (IC) against three local authorities for losing sensitive personal data, and also the new powers to impose fines granted to the IC, it is imperative that any public authority that has not yet done so, reviews and, if necessary, updates its data security procedures and policies. Steps should then be taken to ensure that they are followed and enforced by staff.
District council consultations: district councils that are facing a decision about whether they want to have a locally-elected mayor or a council leader should note that confirmation has been given that they can adopt a “light touch” to public consultation on the issue.
Environmental damage: local authority enforcement officers will be interested to see that Mid Devon District Council is the first local authority reported to have used enforcement powers under the Environmental Damage (Prevention and Remediation) Regulations 2009 (SI 2009/153). They were used in relation to a spill of kerosene and the council’s officers reported that the process was straightforward and the regulations provided a clear framework for how to deal with the issue.
FOIA or EIR?: following the latest decision notice issued by the IC finding that local authorities have mistakenly responded under the provisions of the Freedom of Information Act 2000 to requests for information, officers dealing with information requests should be advised to make sure they consider whether requests are for “environmental information” and, if they are, deal with the request using the regime set out in the Environmental Information Regulations 2004.
Health & social care: advisers on local authority and NHS commissioning should ensure that any partnering projects take into account the government’s NHS Strategy: Liberating the NHS. The strategy envisages moving the responsibility for commissioning NHS services to local authorities or to consortia of GP practices. The new arrangements should not restrict collaboration between local authorities and NHS bodies and therefore any current and potential partnering arrangements should acknowledge this change as a risk, and, if possible, be sufficiently flexible to accommodate the changes.
Local authorities and green energy: environmental officers at local authorities will be interested in the government’s announcement that the Local Government (Miscellaneous Provisions) Act 1976 will be amended to allow local authorities to sell electricity that they generate from renewable sources.
Maintenance of vegetation around highways: the decision in Yetkin v London Borough of Newham highlights the need for highways authorities to ensure that shrubbery planted in and around highways is maintained and, where appropriate, cut back to ensure that it does not represent a hazard to road users. If they do not, they may be faced with numerous personal injury claims, even from claimants who have acted in a negligent manner.
Procurement: procurement advisers should note the advice in the OFT’s working paper, Competition in Mixed Markets: Ensuring Competitive Neutrality, which discusses how contracting authorities can reduce the risk of incumbent service providers having an unfair advantage in subsequent procurements. It also contains examples of where contracting authorities have used their purchasing power to stimulate competition in diverse markets, notably in the care and health sectors.