PLC Public Sector reports:
This week’s actions are:
WAG legislative programme: Welsh local government lawyers will be interested in the publication of the last legislative programme for the current session of the Welsh Assembly Government. It includes proposals for new measures that will improve school governance and give local authorities the power to suspend social housing tenants’ rights to buy.
SEN and Article 2: education lawyers should note the decision of the Supreme Court in A v Essex County Council, which held that a failure to meet the special educational needs of a child in accordance with the requirements of the Education Act 1996 did not in itself lead to a finding that the child’s Article 2 rights under the European Convention on Human Rights (ECHR) had been breached. The fact that the failure was due to the limited resources of the Council and that the Council had at no stage “abandoned” the child or their educational needs meant that the child’s claim was bound to fail.
TUPE and collective agreements: employment lawyers should note the EAT decision in Worrall v Wilmott Dixon Partnership Ltd, which held that the finding in Parkwood Leisure Ltd v Alemo-Herron and others [2010] EWCA Civ 24, that rights under collective agreements are “static” at the point of transfer, does not mean that any subsequent relevant changes in legislation do not apply. Local authority lawyers advising on outsourcings should be careful to ensure that service providers are not pricing for benefits contained in outdated agreements which they are not obliged to deliver.
FOIA/EIR: information lawyers and officers will be interested in:
- The latest Information Tribunal decision on the late reliance on exemptions under the Freedom of Information Act 2000 (FOIA) affirming that the Tribunal has a discretion as to whether to allow this. This decision highlights the importance of fully considering all of the potential exemptions that may apply when a request is first dealt with.
- The latest decision notices issued by the Information Commissioner (IC), which make it clear that property search information is environmental and must be open to inspection without charge under regulation 5(1) of the Environmental Information Regulations 2004 (EIR).
- The new regulatory action policy published by the IC. This indicates that the IC will be taking a tougher approach when enforcing FOIA and EIR. In particular, authorities should process requests within the 20 working day time limit and also make sure full details of any exemptions being claimed are provided when refusing to disclose information requested.
Direct payments for health care: those advising on health and social care commissioning should note the latest guidance on direct payments for health care published by the Department of Health. The guidance is also likely to be interest to those in local government with responsibility for direct payments for social care, particularly where services are jointly commissioned. The move to personal health budgets is likely to impact on the guarantees health care commissioners can give service providers as to the volume of service they require. Commissioners should therefore ensure their contracts are sufficiently flexible going forward to respond to a national, or in the case of the pilot sites increased, take up of personal health budgets.
Planning enforcement: planning authorities should ensure that they carry out their enforcement activities in a timely fashion following the decision of the European Court of Human Rights in Giza v Poland, where the court held that a landowner’s Article 2 rights under the ECHR had been infringed due to a prolonged failure by a planning authority to enforce a requirement to demolish an illegally-constructed sawmill on a neighbouring property.
Public procurement: public procurement lawyers will be interested in:
- The decision of the ECJ finding that Germany had breached the requirements of public procurement rules by allowing the direct award of contracts relating to local authority pension schemes. While the contract awards by local authorities followed from the application of a collective agreement, this did not, in itself, exclude them from the scope of the public procurement rules.
- The guidance published by the Office for Government Commerce stating that framework agreements set up by non-contracting authorities should not be used by contracting authorities and setting out how to indicate the use of electronic auctions in tenders to establish a framework agreement or in tenders as part of a mini competition to establish call off contracts under a framework agreement.
Consultations: this week, two consultations were published on:
- The second stage of implementation of the revised Waste Framework Directive.
- The NHS outcomes framework.