PLC Public Sector reports:
This week’s actions are:
Academies Act: education lawyers should be aware that the Academies Bill received Royal Assent on 27 July 2010. Although the Act is in substantially the same form as the Bill, a number of additional sections have been added, including an amendment to the relevant school finance regulations to ensure that expenditure on children, who have limited special educational needs or disabilities and attend an Academy, is included in a local authority’s education budget and a requirement that the governing body of a maintained school must carry out a consultation on the school’s conversion to an Academy. However, there is no requirement under the Act for governing bodies to consult local authorities, although common law may impose an obligation of fairness to do so.
ContactPoint: ContactPoint database users should be aware that the government has issued guidance on what local authorities and ContactPoint users should be doing to ensure the safe and legal shut down of the database on 6 August 2010.
Schools as employers: the Employment Appeal Tribunal has clarified the position of local authorities and school governing bodies in relation to their employment powers of community schools in Butt v Bradford Metropolitan Council. The decision is a reminder to employment lawyers that in the case of a community school:
- Although the local authority is the contractual employer and paymaster, it is the governing body which exercises the majority of employment powers and therefore is the proper respondent to any legal proceedings (even if the local authority pays for them).
- The governing body is responsible for taking the relevant decisions in relation to a member of staff even where a local authority steps in and tries to influence the governors.
Vetting and Barring scheme: local authorities and education lawyers in Wales should be aware that, following the coalition government’s review of the vetting and barring scheme generally, the Safeguarding Vulnerable Groups Act 2006 (Prescribed Period and Appropriate Officer) (Wales) Regulations 2010 have been revoked so that there is no longer a requirement to carry out a check on any person who is to be appointed to the governing body of an educational establishment.
Enforcement: local authority lawyers dealing with enforcement and removal of trespassers should be aware of the decision in Hall & Ors v Mayor of London (on behalf of the Greater London Authority). The Court of Appeal held that, when applying for an order for possession and injunction for the removal of protestors from Parliament Square Gardens, it was not a pre-requisite for the Mayor of London to show that he had absolute title to the space. He merely had to demonstrate that he had better title than that of the protestors.
FOI: the Information Commissioner has held that it was reasonable for North Devon District Council to treat a large number of requests for information from the same applicant as vexatious. However, it was wrong to state in its refusal notice that any future requests from the applicant would also be considered vexatious. This decision should act as a reminder to local authorities that they cannot blacklist future requests on the basis of the applicant’s past behaviour and when deciding whether a request is vexatious they should conduct a balancing exercise considering the context and history of the particular request.
Local Government Ombudsman: lawyers acting for social care providers should be aware that from 1 October 2010 the Local Government Ombudsman’s remit has been extended to investigate complaints about social care that is not provided by local authorities.
Equal pay settlements: employment lawyers should be aware that the Local Government Pensions committee has published guidance following an amendment to regulation 4(2)(g) of the Local Government Pension Scheme (Benefits Membership and Contributions) Regulations 2007 The guidance clarifies that an element of an equal pay settlement that represents back-pay will be pensionable but any compensatory element will not be.
Pension loss: employment and pension lawyers should note decision in Sibbit v The Governing Body of St Cuthbert’s Catholic Primary School regarding calculation of pension loss. The Employment Tribunal originally calculated Ms Sibbit’s pension loss using the simplified approach set out in the Compensation for Loss of Pension Rights guidelines, but the Employment Appeal Tribunal stated that the substantial approach should have been used in this case as the appellant had been employed for a considerable time and had reached an age where she was less likely to be looking for “new pastures”.
Planning: following the decision in R (Copeland) v London Borough of Tower Hamlets, planning lawyers and planning committee members should be alerted to the fact that, the proximity of a hot food takeaway to a school and its impact on a local secondary school’s healthy eating programme, was capable of being a material consideration in the determination of a planning consideration.
Sustainable rural communities: Welsh planning lawyers should familiarise themselves with the new Technical Advice Note 6: Planning for Sustainable Rural Communities (TAN 6), which sets out the role of the planning system in supporting the delivery of sustainable rural communities. TAN 6 replaces Technical Advice Note (Wales) 6, Agricultural and Rural Development and should be taken into account immediately.
Windfarm planning applications: the High Court has upheld a planning inspector’s decision to grant planning permission for a windfarm in Cumbria in Barnes and another v Secretary of State for Communities and Local Government and Others. The decision is of relevance to Welsh planning lawyers and planning inspectors as the decision highlights possible areas of challenge to planning permissions for windfarms.
Consultations: this week there have been a number of consultations launched on:
- Lord Justice Jackson’s recommendations on conditional fee agreements and other recommendations on funding arrangements not currently permitted in legislation before the courts.
- Introducing a pupil premium in September 2011 to support disadvantaged pupils.
- Proposals for future development of skills.
- An environmental microgeneration strategy for England.
- Various aspects of the Department of Health White Paper, Equality and Excellence: Liberating the NHS.
- The Regional Growth Fund.
- Proposed changes to guidance on rough sleeping.
- The Welsh national planning policy on renewable energy.