REUTERS | Brian Snyder

Local government law quarterly digest (May 2013 – July 2013)

This is the third in our series of quarterly local government update blogs which will enable readers to catch up on the most important cases, issues or developments in local government since May 2013.

Please feel free to submit a comment below or contact us at if you have any views on the cases, issues, or legal development that is covered or if you think we have missed something that should be brought to the attention of local government practitioners.In this post we look at:

  • Legislation of interest to local authorities in England and Wales.
  • The Local Government (Democracy) (Wales) Bill.
  • Recent challenges to local authority decisions.
  • Human rights decisions.
  • The correct sanction for dealing with gang-related activity.

Legislation of interest to local authorities in England and Wales

  • The Local Audit and Accountability Bill 2013-14.

The Local Audit and Accountability Bill 2013-14 sets out a new local audit framework for local public bodies. Following the government’s response to the pre-legislative scrutiny committee report on the Bill, the Bill had its first reading on 9 May 2013. The Bill aims to make the public bodies in England, which are currently audited by the Audit Commission, more accountable by closing the Audit Commission and allowing local public bodies in England to appoint their own auditors locally on the open market.

Some of the key provisions of the Bill include ensuring that local authorities comply with the Code of Recommended Practice on Local Authority Publicity by giving the Secretary of State the power to direct local authorities to comply with the Code (clause 39) and extending the power of local taxpayers to veto excessive council tax increases that are the result of levies by external bodies or quangos.

An overview of the Bill’s provisions, together with details of the amendments that have been proposed in the Lords Second Reading and the Lords committee stage of the Bill, are set out in the Standard Note, that has been published by the House of Commons Library.

  • Draft Deregulation Bill 2013-14.

The draft Deregulation Bill 2013-14, which was published on 1 July 2013, contains various amendments that will be of interest to local authority lawyers, including an amendment to section 119 of the Housing Act 1985 to reduce the qualifying period from five years to three years for tenants wishing to exercise their right to buy their home under Part 5 of the Act.

Also included in the Bill are amendments:

    • repealing the Secretary of State’s power in section 19 of the Education Act 1997 to require local authorities in England to set annual targets in relation to the educational performance of pupils at maintained schools;
    • removing the requirement on governing bodies of maintained schools or Academy schools in England to adopt home-school agreements; and
    • moving responsibility for determining the school’s term and holiday dates each year from the local authority to the governing body (although this last provision will come into force on a day to be appointed by the Secretary of State in a commencement order).
  • The Local Government (Democracy) (Wales) Bill.

Following approval by the National Assembly for Wales (NAW) of the Local Government (Democracy) (Wales) Bill on 18 June 2013, there will be several changes to the local government democratic process in Wales when the Bill is enacted. These include reforming the Local Government Boundary Commission for Wales, which will help the development of a Welsh statute book, and amending Part III of the Local Government Act 2000 to enable the creation of local authority joint standards committees.

Recent challenges to local authority decisions

On 28 June 2013, the High Court quashed the council’s decision on the amount of fees that it would pay to care homes in which it placed elderly and/or disabled residents and ordered the council to retake its decision.

In finding that the council’s decision on setting the level of fees was unlawful, procedurally unfair and Wednesbury unreasonable, the court was satisfied that the claimants’ grounds of challenge were made out, including that in setting the fees on the basis of “bands”, the council failed to pay due regard to the actual costs of care and failed to take into account that return on capital or return on equity is an actual cost of care in deciding the level of fees.

The decision, which follows similar findings in other cases on the setting of care home fees, demonstrates the importance of getting the decision right and following fair and proper processes when taking a decision as to the level of fees to be paid. Provided that a local authority has paid due regard to the actual costs of care, then the decision as to the level of fees that it will pay to care home providers is a matter for the authority (and it may take into account its financial circumstances in coming to that decision).

An individual claimant’s challenge to the council’s decision to outsource a large number of its functions and services failed on the basis that her claim for judicial review was out of time. The decision reiterates the importance of bringing a judicial review claim within the relevant time limits (being three months from the date when the grounds for the application first arose in relation to judicial review claims unless the claim relates to a procurement or planning decision taken after 1 July 2013, see Legal update, The Civil Procedure (Amendment No 4) Rules 2013 made implementing judicial review reforms).

The claimant in this case failed in her application because, although she was challenging the council’s decision to award the contracts to private sector organisations, the substance of her challenge was to the council’s earlier decisions to proceed with the procurement process for the outsourcing of its functions and services (respectively taken by the council in 2010 and 2011).

Human rights

The issue for the High Court in this case was whether a local authority was liable under Article 8 of the Human Rights Act 1998 (HRA 1998) for a criminal assault on the claimant and his girlfriend, which had been committed by a child in its care who had escaped during a supervised visit, and resulted in the claimant suffering a serious brain injury.

In concluding that the local authority was not liable, the High Court took into account the fact that the claimant had brought the claim five years out of time. Although there is a discretion to extend time, the High Court was satisfied that for a duty to be owed, the following three requirements had to be satisfied: that it was equitable to allow the claim to be brought out of time; that there was a real and immediate risk of serious harm to the claimant that the local authority knew (or ought to have known about); and if there was such a risk the authority took reasonable steps to eliminate or substantially reduce the risk.

  • Care order for the adoption of a child removed from birth parents did not violate Article 8 of the European Convention on Human Rights (Re B (a child) [2013] UKSC 30)

The Supreme Court has dismissed the parents’ appeal of the High Court’s decision that a care order with a view to the adoption of their daughter was necessary and not a violation of their rights under Article 8 of the ECHR. It did so on the basis that it was satisfied that the child was likely to suffer significant harm within the meaning of section 31(2)(a) of the Children Act 1989 and that her removal was a proportionate response and not a breach of Article 8 given the risk of her future psychological or emotional harm.

Anti- social behaviour

The Court of Appeal has confirmed that a council had acted correctly in applying for an injunction to restrain gang-related violence (IRGV) under section 34 of the Policing and Crime Act 2009 rather than an anti-social behavior order (ASBO) to restrain the activities of the appellant (J).

J’s actions, which involved visiting a carnival in rival gang territory with 30 other gang members all wearing his gang’s colours, were clearly intended to act as a show of force and were deliberately provocative, intending to create an aura of menace. Therefore, it would not have been appropriate for the court, as J submitted, to have considered first whether an ASBO would be an appropriate remedy. J had participated in a deliberately provocative demonstration and was not acting in a passive capacity. The legislation governing ASBOs and IRGVs are directed towards different social problems and Parliament cannot have intended to require the courts, when considering whether to grant an IGV, to first consider whether an ASBO would be an adequate remedy (as J submitted).

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