PLC Public Sector reports:
When is a contract “environmental” information? Should schools allow parents to take photographs at school sports days? Which authority is responsible for a SEN statement, the authority that looks after the child or the one where he or she lives?
The answers to these questions and many more are revealed in this week’s recommended actions.
This week’s recommended actions are:
Responsibility for SEN Statements: local authorities responsible for children with a statement of special educational needs who are housed or educated in a different authority area must continue to review the child’s needs. A recent High Court decision makes it clear that, as the law stands, an authority cannot transfer this responsibility to the other authority. The DCSF has consulted on revising the law in this area and PLC Public Sector will monitor any developments.
Looked after children – higher education bursaries: children’s services teams need to prepare for the introduction of a £2,000 bursary payable by local authorities to former looked after children. Authorities can pay the bursary by lump sum or in instalments, provided they comply with the requirements of the draft regulations published this week.
FOIA: two decision notices published this week by the ICO have raised some interesting issues in relation to requests for information:
- Relationship with EIR: public authorities need to consider whether any request for a contract should be dealt with under the Environmental Information Regulations (EIR) rather than FOIA. In a decision notice published this week, the ICO found that a BSF agreement between a local authority and a LEP was environmental information as it related to plans which would have a “direct impact on land use”. The same could be true of a wide variety of contracts. The EIR disclosure regime is generally considered to be tougher than the FOIA regime (for example, there is no applicable cost limit for dealing with requests), therefore, this decision could have a significant impact.
- Disclosing service charges: Any claim that costs are confidential/commercially sensitive must focus on cost breakdowns (for example where disclosing information would reveal a contractor’s margin) and be supported by specific evidence. In the same decision notice, the ICO ordered the disclosure of the ICT service charges under the BSF agreement. In this instance, the authority had argued for a blanket exclusion. Authorities should be aware of this issue before agreeing to wide confidentiality restrictions in contracts. They are not allowed to sign up to confidentiality agreements that seek to give protection to information that is not in reality confidential. If they do, they are likely to have to disclose the information and will then be in breach of contract.
- Claiming confidentiality: Any public authority seeking to claim the exemption for confidential information under FOIA (section 41), should only do so where the information is obtained from a third party. Another recent ICO decision notice made it clear the exemption cannot apply to an authority’s own information. Authorities will instead need to rely on the exemptions in sections 35 (formulation of government policy (central government only)), 36 (free and frank provision of advice)and, possibly, 43 (commercial interests), each of which can be difficult to claim.
Data security: following another public sector data breach, the ICO has sent out a message to senior council management asking for safeguarding personal information to be embedded within local authority organisation structures. Our practice note on data security management will help public authorities reduce the risk of embarrassing data losses. However, if the worst does happen, it is important to take swift action. Our checklist on what to do if there is a data security breach sets out the steps to take.
Taking photographs at school sports days: the ICO has reiterated its guidance that the Data Protection Act does not prevent parents taking photographs of their children at school sports days. Education advisers who receive queries from a school on this subject should provide the school with a copy of the clear, concise guidance provided by the ICO.
Challenging housing targets in regional spatial strategies: Councils thinking of challenging their housing targets can take comfort from a recent case in which certain policies in the East of England Plan were successfully challenged for failure to carry out an environmental assessment identifying, describing and evaluating alternative plans in accordance with regulation 12(2) of the Environmental Assessment Plans and Programmes Regulations 2004.
Consultations: This week saw consultations on changes to the Building Regulations and community health councils in Wales. Anyone with an interest in either of these areas, should take note and respond if appropriate.
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.