PLC Public Sector reports:
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Care services: the following developments will be of interest to those advising on the provision of care services:
- The decision of the Court of Appeal in R (Savva) v Royal Borough of Kensington and Chelsea is a timely reminder to social service officers calculating individual personal budgets that, even if the relevant legislation and regulations do not impose a requirement to give reasons for individual calculations, common law and fairness entitle an applicant to know how the personal budget has been calculated. Therefore, adequate reasons should be given, which the court considered can be achieved with reasonable brevity.
- Local authority officers involved in charging for non-residential services should be aware that the 2009 guidance has been amended by new DOH guidance, to reflect the fact that local authorities are no longer required to carry out means assessments when determining what is a reasonably practicable contribution for a direct payment recipient to make towards securing residential accommodation.
- Following the DoH’s publication of a local authority circular, local authorities should review their charging practices in relation to re-ablement as intermediate care following a patient’s discharge from hospital should be provided free of charge for the first six weeks.
Employment: HR officers administering employer-supported childcare to their staff should review the guidance published by HMRC, which deals with the practical aspects of the changes which are due from April 2011.
Access to information: Procurement officers will be relieved to know that suppliers will now not be discouraged from bidding for local authority contracts because their commercially sensitive information may be subsequently disclosed under the Audit Commission Act 1998, following the Court of Appeal’s decision that:
- Commercially confidential information, provided by a private contractor contracting with a local authority, is protected from disclosure under section 15 of the 1998 Act.
- The public inspection provisions of section 15 only permit use of the disclosed information for the purposes of the 1998 Act so that the earlier material provided to the local government elector by the Council could not be used for any purpose outside that of the audit.
Information officers should take note of this decision when responding to any request to inspect information under the 1998 Act and also be aware of two decision notices published last week by the Information Commissioner that found:
- The personal information exemption in section 40(2) of FOIA cannot be relied on in relation to an information request for details of local authority councillors who are members of the Local Government Pension Scheme (ICO decision notice: FS50233989); and
- It is in the public interest for commercial information relating to the income and expenditure records of a local authority’s civic suites to be disclosed even where the commercial interest exemption under section 43(2) of FOIA is engaged (ICO decision notice: FS50286978).
Housing: Local authority housing officers should be aware that the Supreme Court has ruled in Pinnock that:
- Article 8 of the European Convention on Human Rights requires a court when requested to make an order for possession to assess the proportionality of making the order. However, in most cases where an occupier has no contractual or statutory protection and the local authority is entitled to possession, there is a strong case for saying that it is proportionate to make the order, particularly as a county court judge can investigate and determine any relevant issues of fact that are relevant.
- The demoted tenancy regime under the Housing Act 1996 is compatible with Article 8 of the European Convention on Human Rights.
Given that tenants facing eviction will be able to request a court to consider the proportionality of their eviction, local authority housing officers should ensure that their decisions withstand court scrutiny. Therefore, they should carefully document the facts leading up to the decision to commence possession proceedings to demonstrate that there is good cause for seeking the order.
Planning: Given what is proposed in the government’s White Paper, Local growth: realising every place’s potential, local planning authorities should start thinking how they can adapt their organisation and decision-making processes to the new planning proposals, particularly in relation to the fast-tracking of locally agreed schemes that appear to by-pass the planning application process.
Also planning officers, who deal with party wall issues, will be interested in the court’s decision in Kaye v Lawrence, where the courts considered for the first time the extent of the security that may be requested under the Party Wall Act 1996.
Procurement: All public authorities seeking savings in public procurement will be interested to know that Buying Solutions has published a new on-line directory of all its framework agreements.
Schools: Education lawyers in Wales should be familiarise themselves with the Welsh Assembly Government guidance that has been published on the use of reasonable force and covers screening and searching pupils for weapons.
Consultations: this week there was one consultation seeking views on procedures for revoking or making changes to development consent orders for nationally significant infrastructure projects.
In addition, the White Paper, Local growth: realising every place’s potential invited interested parties to respond by 1 December 2010 on the proposed new Tax Increment Financing powers and also on the Business Increase Bonus proposal which would allow local authorities to retain business rates where these exceeded a specified threshold.