PLC Public Sector reports:
There are suggested actions for lawyers advising on areas such as public procurement, freedom of information, section 106 agreements and education to name just a few.
This weeks recommended actions are:
Brent v RMP: so the Court of Appeal has supported the findings of the High Court. Local authorities will need to carefully consider the case prior to using the well-being powers and all public authorities need check they have an appropriate level of control before asserting the Teckel in-house exemption. On a brighter note for the public sector a European case has made it clear that authorities can share services and not be caught by the procurement regime. It just so happens that in respect of LAML, the London authorities were caught.
Clarifying procurements: public authorities should not be afraid to fear ask for clarification from bidders. No, selected bidders should not be given the chance to amend bids after submission deadlines, but that does not mean that submissions cannot be queried. Especially when a different interpretation could have a significant impact. However, public authorities may take some heart from the fact that it was the European Commission that got it wrong this time.
Services directive: new guidance has been published to help implement the services directive. There are steps that all regulatory authorities must take prior to 27 December 2009. These should be put in motion now. For more information on the Directive, see our practice note.
Redundancies: all employers should note that from 1 October 2009 the weekly limit used to calculate redundancy pay will rise from £350 to £380. Any organisation facing a redundancy situation or local authorities advising local businesses on such issues will find our new practice note on avoiding redundancies of great use.
Section 106 agreements: local authorities should be wary of putting restrictive clauses in section 106 agreements as it can impact on the availability of finance for low cost home ownership. The Council of Mortgage Lenders recommends using the Law Society’s model agreement.
Planning: local authority planners will be interested in the case confirming that when planning inspectors impose a planning condition of their own volition, they should ensure that the condition is adequate and rational in addressing the authority’s concerns.
The planning process: the Local Government Association has updated its guidance on the role of councillors and officers in the planning process. Copies should be circulated to all relevant parties at local authorities.
Tolerated trespassers: the tolerated trespasser is no more. Anyone advising on social housing should read the DCLG’s guidance on the new provisions.
NHS information: a familiar item, but one that constantly needs to be monitored. All public authorities must review their data security policies and make sure they are enforced. The Salford Royal NHS Foundation Trust is the latest public authority to have to give undertakings to the ICO. NHS bodies should also note the common sense FOI guidance issued this week by the NHS Confederation.
Disclosure of information- schools: education and information lawyers should be note that when advising schools on the disclosure of personal data, such as education records, which include data of pupils or other people, they may be able to rely on those individuals’ Article 8 rights to privacy in addition to the protections from disclosure contained in the Data Protection Act.
On a related point, local authorities should note the ICO decision in which statistical data relating to 11+ tests were held not to be personal data. The ICO found that where the statistical data related to more than 5 pupils they were unlikely to be capable of identification. The section 40 exemption for personal data under FOIA did not therefore apply.
School exclusions: Two important issues arise for those advising schools from a recent claim against the findings of an Independent Appeal Panel:
- At the investigation stage, schools should be reminded to take a contemporaneous note of disciplinary interviews with pupils and to notify the parents or responsible adults of those interviews and invite them to attend.
- Clerks will need to ensure that IAPs are properly instructed as to any findings of fact they are required to make (in this case whether a substance was illegal) before considering whether the exclusion was reasonable, or their decision risks challenge.
Consultations: a solitary consultation this week. Anyone with an interest in school finance may wish to respond to the DCSF consultation on schools forums.
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.