March 2016 Featured articles Real estate and smart property management Slicing the business rates cake The legal aspects behind the successful Bedroom Tax appeals Re-organising the public sector The Cities and Local Authorities Devolution Act 2016 Holiday pay must take into account lost commission confirms the EAT Risk management of laboratory Gender pay gap reporting and what it means for you Cases Legislation The fall-out from the spring Budget continues apace and we are moving rapidly towards the Brexit vote and a summer of much anticipated political drama, whichever way the result goes. The Budget has impacted particularly on schools and businesses plus the next stage in the great devolution revolution was unveiled. In this edition of our newsletter, we consider the ‘one public estate’ vision and how the local urban landscape could be changing accordingly. Further, will the freezing of business rates improve or remove the local high street and what will the effects be on small and medium-sized businesses? How are all of these changes to be implemented with the re-organisation of resources within the public sector and the passing of the Cities and Local Authorities Devolution Act 2016? In the employment arena, we report on the new regulations on gender pay gap reporting and we have highlighted two cases concerning benefits and the so-called ‘bedroom tax’. We also examine a key recent case dealing with holiday pay entitlement where employees earn commission. Away from the political arena, read our case analysis on the chemistry lesson which went wrong at a UK secondary school, resulting in an HSE prosecution. And suddenly it was Easter already - a Happy Easter to all.
34
Embed
Local Gov newsletter March 16 - weightmans.com › media › 2169 › local-gov-newsletter-m… · economic growth and efficiencies across local authority boundaries, city-regions
This document is posted to help you gain knowledge. Please leave a comment to let me know what you think about it! Share it to your friends and learn new things together.
Transcript
March 2016
Featured articles
Real estate and smart property management
Slicing the business rates cake
The legal aspects behind the successful Bedroom Tax appeals
Re-organising the public sector
The Cities and Local Authorities Devolution Act 2016
Holiday pay must take into account lost commission confirms the EAT
Risk management of laboratory
Gender pay gap reporting and what it means for you
Cases
Legislation
The fall-out from the spring Budget continues apace and we are moving rapidly towards the Brexit vote and a summer
of much anticipated political drama, whichever way the result goes. The Budget has impacted particularly on schools
and businesses plus the next stage in the great devolution revolution was unveiled. In this edition of our newsletter,
we consider the ‘one public estate’ vision and how the local urban landscape could be changing accordingly. Further,
will the freezing of business rates improve or remove the local high street and what will the effects be on small and
medium-sized businesses? How are all of these changes to be implemented with the re-organisation of resources
within the public sector and the passing of the Cities and Local Authorities Devolution Act 2016? In the employment
arena, we report on the new regulations on gender pay gap reporting and we have highlighted two cases concerning
benefits and the so-called ‘bedroom tax’. We also examine a key recent case dealing with holiday pay entitlement
where employees earn commission. Away from the political arena, read our case analysis on the chemistry lesson
which went wrong at a UK secondary school, resulting in an HSE prosecution. And suddenly it was Easter already - a Happy Easter to all.
Real estate and smart property management
Clive Bleasdale and Nathan East, Partners in our Real Estate team, set out what the ‘one public estate’ concept is and
some of its key considerations. The principle behind the concept involves selling unnecessary buildings in order to make
a more efficient and streamlined use of the public estate. We look at some of the key factors for clients to consider...
Consolidation of local government services and assets under the Public Service Transformation initiative is focusing
minds on how best to manage public sector assets in a way that supports government aims to promote growth and get
public sector organisations to live within their own means.
We have had a number of dealings which seek to promote the “one public estate” concept and highlight here some points
to consider from our experience.
It is worth noting that according to central government statistics the estate is extensive – central and local government
together own property worth £370bn, with annual running costs of over £20bn. The properties range from offices to
laboratories, prisons, courts, hospitals and airfields, reflecting the wide spread of functions the government supports.
The overriding aim is therefore for councils and other public sector organisations to join together to use their assets
more efficiently to deliver efficiencies.
The principle involved is about selling off unnecessary buildings, and making more efficient and streamlined use of the
public estate. It will see partnerships of local authorities looking to deliver major service transformation, large-scale
economic growth and efficiencies across local authority boundaries, city-regions and devolved areas.
Transformational funding may be provided to assist the focus on shared facilities and buildings. This is the case through
the One Public Estate initiative under which aspiring organisations to the scheme can make an application for financial
support as and when a new tranche of funding is made available. Police authorities continue to have access to a police
innovation fund to which application can be made for collaboration projects and fire services have had access to the Fire
Transformation Fund. Access to funding of those schemes however tend to require more than simple sharing of property
to be demonstrated, but a more intensive form of collaboration to be demonstrated. Creation of a landlord and tenant
relationship in itself is not enough.
We have been involved recently with consolidation of and sharing buildings between blue light services, as well as related
health and social care integration through shared buildings. Key factors in advising clients in this area are:
The suitability of existing premises for sharing and their ability to be adapted as opposed to new build options;
The cost in terms of running costs of “second hand space” as opposed to new build;
Assessing and then addressing the risk factors in any new build projects;
Organising legal agreements to facilitate funding new projects from the sale of existing assets which might
ideally be contemporaneous;
Striking a reasonable balance of cost against risk and short to medium term security of tenure and return on
investment;
Detailed consideration of existing portfolio ownership is essential with thought given to existing contractual
arrangements particularly occupational interests;
Collating useable and accessible data which provides information of use and relevance to the decision making
process and assessment of risk can’t be underestimated;
Dealing with conflicting requirements in certain circumstances and finding working solutions with particular
regard to health and safety and security as well as systems integration;
Considering the potentially broader and strategic joint venture aspect to these projects;
Adapting particularly in the present challenging office market environment to flexible working practices and
space planning to drive efficiencies and economies of scale;
Putting in place legal structures that are flexible enough to permit change should economic conditions require;
Apportioning risk and benefits fairly in any strategic partnering arrangements;
Addressing risk with construction industry contractors in a balanced way particularly taking account of due
procurement process and any state aid implications of certain types of development;
Considering short or longer term occupancy arrangements by non public sector organisations where appropriate
and flexible or more secure letting arrangements;
Aligning councils' potential regeneration objects in either town centre or more peripheral locations with the
concept of one public estate which may reduce risk factors more prevalent with purely private sector
regeneration projects;
Utilising funds generated by public estate sales to fund and in some instances “kick-start” strategic housing and
regeneration projects and considering the variety of funding options and structures that can be considered;
Considering the one public estate concept in respect of the construction and upgrade of educational, leisure and
sport facilities.
There are often no straightforward “text book” answers to the issues that arise but problem solving depends on
expertise in built environment public sector projects from the consultants (not just legal of course) involved in projects.
In terms of the delivery of projects under One Public Estate, or estate consolidation projects of a similar nature we have
seen that one size does not fit all. A number of projects have led to the establishment of property service companies
which are essentially shared service organisations. These companies are then empowered to use economies of scale in
terms of procuring solutions for the management of the estate of the participating organisations and reducing FM costs.
The property company also then acts as a hub to consolidate the information around the combined estate, look at
surpluses and need and try to match these requirements to ensure any needs for additional space are met through the
existing estate.
Other schemes have gone further and have transferred capital or assets into a new corporate vehicle such as an LLP or
limited company such as the development of a new £15m headquarters by Derbyshire FRS and Derbyshire Police. This
has had the benefit of protecting the capital investment of each party and delivering income to the parties in line with
their capital share.
Emergency service estate collaboration could now form part of the general duty to collaborate which is currently making
its way through parliament. It provides particularly fertile ground in that mapping exercises carried out on behalf of a
number of emergency service organisations have shown considerable overlap, and an ability to reduce the footprint of
the estate without affecting response times or frontline services.
Some ambitious organisations are also looking at further partnerships that can deliver further returns from the surplus
estate and the renewal or replacement of old facilities by engaging a partner to participate in a Local Asset Backed
Vehicle structure. LABVs generally involve a private investor or funder matching the value of the estate contributed to the
venture by the public sector partner by way of new capital to deliver increased returns which are then shared.
A body of knowledge and expertise is there though which can be accessed in how arrangements can be made to work to
deliver functional as well as cost effective solutions so a modern, fit-for-purpose, and efficient core estate, which
provides value for money for the taxpayer, increases sustainability and enables improvements in the way the
organisations work is achieved.
It is very satisfying to be involved in projects that set out to and then achieve these objectives and it can only result in
the extension of the one public estate concept in our view.
A version of this article appeared in Local Government Lawyer.
Slicing the business rates cake
How will George Osborne’s business rate devolution affect local government? Simon Goacher and Graeme Creer from our
Local Government team scrutinise the possible impacts on growth and, the strength and speed of growth in different
areas. With the tariffs and top-ups yet to be finalised, local authorities could be competing with one another for real
economic growth and ways in which to attract successful business to their area...
Last October, George Osborne told the Conservative Party conference: ‘I am embarking on the biggest transfer of power
to our local government in living memory. We’re going to allow local government to keep the rates they collect from
business. That’s right, all £26 billion of business rates will be kept by councils instead of being sent up to Whitehall’.
Recent Government figures predict a £400m increase in business rates income, to £23.5bn after reliefs and adjustments.
But what lies behind the exuberant rhetoric and the big numbers?
From 1990 to 2013 English councils just collected the rates and passed them on to the government, which redistributed
them according to its assessment of spending needs. In 2013 authorities were allowed to keep half of what they
collected, with the rest redistributed by government as before, including a system of “tariffs and top-ups” to enhance the
redistributive effect. The idea was to encourage local authorities to promote economic growth by giving them a share in
the additional rate income.
In principle, the £400m increase does reflect growth. The business rate multiplier is pegged. Additional business rates
can only be levied for ‘business improvement districts’ if local businesses agree, and through a ‘business rates
supplement’ scheme for new infrastructure (only one exists, for Crossrail), and the review of rateable values has been
put on ice until 2017.
Local authorities have pressed for fiscal devolution. Supported by a 2014 Select Committee report, London and the core
regional cities have sought a variety of new fiscal freedoms, and these figured in many of last years’ devolution bids and
deals.
The new plan is for local authorities to be able to fix their own business rates - up to a point. They will be able to cut the
rates. City regions with elected mayors will be able to increase their chunk of the rates up to a cap, probably 2p on the
rate. Government retention and redistribution will be phased out from 2020, although there will be some tariffs and top-
ups to protect authorities with low levels of income or who would suffer a big drop in income, and eventually non-
specific government grants will be phased out completely.
Local authority associations welcomed the proposals. The city regions, including the ‘Northern Powerhouse’ cities, were
more cynical, and the emphasis in the 2016/17 local government financial settlement on protecting rural authorities has
fanned the flames.
Whatever labels you use, the components are the same. Council tax income increases are limited to 2%, with an
additional 2% for social services. The scope for income generation from fees and charges or municipal trading is limited,
and government support will continue to reduce. National business rate income will not increase – the change will be
‘fiscally neutral’ – so the only variables are the system of redistribution and growth from new or bigger businesses.
But the city regions have higher levels of deprivation, greater demand for services, and lower levels of economic growth
than the South East and the shire counties. In principle, allowing councils to keep business rates, or business rate
increases, will favour those parts of the country where the economy and economic growth is strongest.
Two things follow. Firstly, local authorities will have to concentrate on real economic growth, competing with each other
to attract new businesses and struggling with the planning and environmental implications. Secondly, though, the tariffs
and top ups will be crucial, and the details have not yet been published.
It is good news that the business rate cake is a little larger than it was, and promoting growth will be at a premium, but
the real debate will be about how the cake should be sliced. We will see how powerful the Powerhouse is when that
debate begins in earnest.
A version of this article appeared in Local Government News.
The legal aspects behind the successful Bedroom Tax appeals
Sian Evans, a Partner in our Social Housing team, analyses two cases which both argued that removal by the Secretary of
State for Work and Pensions of part of their means-tested Housing Benefit in respect of their public sector housing was
unlawful. The article looks at how the Court of Appeal arrived at its decision that the parties’ exclusion from the
exemptions as victims of domestic violence or disabled children was unlawful…
In two appeals, the appellant A (a female victim of serious violence living in housing protected under the Sanctuary
Schemes) and the Rutherfords (the grandparents of Warren (W), a severely disabled child) and W contend that the removal
by the Secretary of State for Work and Pensions under Regulation B13 of the Housing Benefit Regulations 2006 (the 2006
Regulations) of part of their means-tested Housing Benefit in respect of their public sector housing was unlawful.
Regulation B13 was introduced into the 2006 Regulations by the Housing Benefit (Amendment) Regulations 2012 (the
2012 Regulations) which came into force on 1 April 2013. The effect of the 2012 Regulations was to reduce Housing
Benefit if the accommodation in which a person lived exceeded the number of bedrooms deemed to be required as
defined by a formula. The formula was varied by Regulation B13(5)-(7) which provided that an additional bedroom would
be allowed for defined classes of persons. It was contended by each of the appellants that they should be part of that
defined class.
Provision was made for Discretionary Housing Payments (DHPs) to be made available to those who, although not falling
within the defined class of persons allowed an additional bedroom under Regulation B13, might have needs which
should reasonably be met by DHP. The benefits payable as DHPs are discretionary and are administered by the relevant
local authority.
They argued that their omission is unlawful discrimination under Article 14 of the European Convention on Human
Rights (ECHR). A also contends that it is unlawful by reason of a breach by the Secretary of State of his public sector
equality duty under s.149 of the Equality Act 2010. Both these cases have proceeded on the accepted basis that
Regulation B13 constitutes discrimination on grounds of sex (A) and disability (W). The question for the court was,
whether the Secretary of State was able to show that there was objective and reasonable justification for that
discrimination which was not manifestly without reasonable foundation.
The Rutherfords lived with their grandson who suffered from a mental and physical disability. The grandson required
care which was provided by the Rutherfords and overnight carers. Discretionary powers and payments had been granted
by Pembrokeshire Council to cover the rent shortfall until April 2015.
A was the victim of domestic violence by her ex-partner which resulted in rape. She suffered post traumatic stress
disorder following threats of violence from her ex-partner and her property was adapted so that she had a safe room
under the Sanctuary Scheme. Housing Benefit was reduced by 14% with the shortfall being covered by discretionary
housing payments.
The Court of Appeal held that their exclusion from the exemptions as victims of domestic violence or disabled children is
discriminatory and unlawful and that the provision of discretionary housing payments was insufficient to justify that
discrimination.
Permission was given for the Secretary of State to appeal to the Supreme Court and a 3-day hearing was listed
commencing on 29 February. Judgment will be given at a later date.
The Secretary of State for Work and Pensions issued an urgent Bulletin on 28 January confirming that Local Authorities
should not take any action based on the Court of Appeal ruling. The Bulletin states that the ruling has not changed the
applicability of the maximum rent (social sector) provisions and that authorities should not be reassessing claims which
have similar circumstances as found in these appeals. Accordingly, it is necessary to wait for the outcome of the appeal
to the Supreme Court before we have clarity.
A version of this article appeared in 24 Housing
Re-organising the public sector
Public sector transformation is all around but what does it mean and what are the major employment issues ? Andrew
Tomlinson explores some of the pitfalls that can arise when public sector bodies attempt to re-organise…
Those of us who work with the public sector cannot fail to have noticed that Public Service Transformation has been
challenging local authorities to rethink their modus operandi and the skills they need in their newly reconfigured teams.
Frequently, this will involve reducing headcount in some areas, merging or consolidating certain teams and services, or
else hiring individuals to bring in new skills.
This is a challenging time for the public sector HR departments, as they try to walk the fine line between ensuring that
any new structure is meeting the needs of their organisation, while ensuring that they are staying on the right side of the
law, both in order to avoid the potential risk of liability, and also to ensure maximum buy-in to any changes from the
employees on the ground.
Potential redundancies: are you consulting collectively?
HR Departments should generally be familiar with the procedure of running an effective redundancy process, and the
first port of call in any such situation will be the appropriate internal policy. There are still pitfalls to watch out for,
however, particularly in relation to large-scale redundancies.
Most are aware that there is an obligation to consult with employees collectively where there are proposals to make 20 or
more redundancies at one establishment within a 90-day period. There is then a sliding scale of the amount of notice
required depending on the numbers at risk: For 20-99 redundancies in a 90-day period requires consultation to start at
least 30 days before the first dismissal; and For 100 or more redundancies in a 90-day period, the consultation should
start at least 45 days before the first dismissal.
In addition, you will also need to consider notifying the Secretary of State by completing an HR1 form. This is of vital
importance as any failure to pre-warn the Secretary of State about collective redundancies is technically a criminal
offence, and could leave employers liable for paying fines that, since 12 March 2015, have been unlimited in value. This
notification requirement has been brought into sharp focus in recent months when, for the first time in over 20 years,
prosecutions have been brought against the directors of a number of businesses that failed properly to notify the
Secretary of State.
You should also allow plenty of time to consult with employees and to plan out a redundancy exercise in good time. It is
crucial, however, to prioritise formal notification to the Secretary of State which can easily be overlooked at such a
stressful and busy time.
Outsourcing: have you considered TUPE?
It is common in a restructuring or re-organisation exercise for management to consider the possibility of outsourcing
certain teams or functions, and in these circumstances it is important for HR practitioners to be familiar with the
operation of the TUPE Regulations.
Of course, it is well known that transfers of administrative functions between public bodies are exempt from the
requirements of the TUPE Regulations, but this exception is usually interpreted very narrowly and, in reality, the Cabinet
Office Guidelines which state that transfers should take place as per TUPE guidelines, even if the regulations themselves
do not apply.
Unless a fairly clear-cut exception applies, therefore, it is always best to operate as if the TUPE regulations apply to the
transfer. With that in mind, there are some issues that all HR practitioners should bear in mind:
Since 31 January 2014, Employment Liability Information, which includes details on all those employees affected by the
TUPE transfer, must be provided at least 28 days before any transfer. It is always best practice to prepare this as soon as
you are able to and, importantly, organisations should make sure that this information is kept up to date throughout the
process, ensuring that employees no longer affected by any transfer are removed from the list.
Practitioners should also make sure they have a good grasp of any collective agreements that might cover affected
employees, and they should be satisfied that they have a record of all terms and conditions covered by these agreements
at the transfer date. If there are, say, payment increases that have been collectively-negotiated
to occur in the future, these will no longer apply to the affected employees post-transfer, as the terms will be set in
stone at the transfer date.
Additionally, it is now easier for organisations to change these collectively-agreed terms and conditions following a
transfer. Organisations still do not have the right to “harmonise” terms and conditions, but they can change collectively-
agreed terms, so long as 12 months has passed since the transfer and the overall changes are no less favourable to the
employee. This is a useful tool for practitioners, particularly concerning relatively minor terms in the contract, but
practitioners should think carefully about how any changes may negatively employees.
Each of these issues can involve a complex analysis of both the legal position and the factual situation behind the
transfer, so HR practitioners should always consider seeking specialist advice before coming to a conclusion on any of
these points.
A version of this article appeared in Local Government Lawyer
The Cities and Local Authorities Devolution Act 2016
The Act received Royal Assent on 28 January 2016. A significant piece of legislation for all local authorities, the Act
makes provision for how a mayor is elected, the length of a mayoral term and constraints on the mayor’s duties. Graeme
Creer, Consultant in the Local Government team, takes a look at the small print…
Purpose
1. “An Act to make provision for the election of mayors for the areas of, and for conferring additional functions on,
combined authorities established under Part 6 of the Local Democracy, Economic Development and Construction
Act 2009; to make other provision in relation to bodies established under that Part; to make provision about
local authority governance and functions; to confer power to establish, and to make provision about, sub-
national transport bodies; and for connected purposes..”
Combined authorities – the elected mayor
2. The Act inserts new provisions in the 2009 Act. The 2009 Act allows the Secretary of State (SoS) to establish and
change combined authorities (CAs) so the new provisions add to his or her order-making powers. Therefore
they say what the SoS may do, not what he or she will do.
3. An order may provide for there to be an elected mayor for the area of a CA, styled as “mayor” and to be a
member of and to chair the CA. Such and order may not be revoked, although the SoS may make an order
abolishing the CA and therefore the office of mayor.
4. The Order may be made if the “appropriate authorities” make a proposal to that effect, or, if the SoS “considers
that the making of the order is likely to improve the exercise of statutory functions in the area”, with their
consent.
5. The “appropriate authorities” are any county council whose area includes the area of the CA, the district councils
whose areas are within the CA, and any existing CA. The county and district councils are called “constituent
authorities”.
6. If the order is triggered by a proposal, it may be included within a “scheme” for a new CA, or for changes to an
existing CA, preceded by a “review”. But a proposal may be made without a review or a scheme.
7. If the order is based on consent, rather than a proposal, and there is an existing CA, the first mayoral order may
be made even if some of the constituent authorities do not consent, provided that the CA and at least two
constituent authorities do consent. Any authority that does not consent must be removed from the CA.
8. The mayor will hold office for four years.
9. At the election, if there are two candidates, the candidate with the most votes will be elected. If there are more
than two, electors will have an additional “second preference vote”. If no candidate receives more than half the
first preference votes cast, the second preference votes are added to the votes cast for the top two candidates,
and the candidate with the most first and second preference votes will be elected.
10. The mayor cannot remain, or become, a councillor in a constituent authority. Candidates may stand for election
both as mayor of the CA and as a councillor, if the elections take place at the same time, but if they are elected
as mayor they cannot be elected as councillors. But the elected mayor of a constituent authority may be elected
mayor of the CA.
11. The mayor must appoint a member of the CA as deputy mayor. The deputy holds office until the mayor’s term
of office ends, so long as he or she remains a member of the CA, but may be removed from office by the mayor,
or resign. The deputy must act in place of the mayor if the mayor is unable to act, or the office of mayor is
vacant. If there is neither mayor nor deputy mayor, the CA may act in place of the mayor.
Combined authorities – the mayor and PCC functions
12. The order may provide that the mayor will exercise the functions of the Police and Crime Commissioner (PCC) in
the area of the CA. This requires the consent of the “appropriate authorities” and (if there is one) the mayor.
There will then be no PCC, or PCC elections.
13. The order may specify the PCC functions that are exercisable by the mayor, but the core PCC functions of
securing the maintenance of efficient and effective police force, holding the chief constable to account, issuing a
police and crime plan and appointing, suspending or removing a chief constable must be discharged by the
mayor.
14. The order must provide for the mayor to appoint a “deputy mayor for policing and crime” (DMPC), and authorise
the mayor to arrange for another person to exercise PCC functions. The DMPC may not be the deputy mayor
appointed for other purposes. The order must, in effect, incorporate provisions of the Police Reform and Social
Responsibility Act 2011 as to who may or may not be the DPCC and as to the functions which the mayor may
and may not delegate.
15. Likewise, the order must establish a Police and Crime Panel. The Panel will scrutinise the discharge of the PCC
functions by the mayor and the DMPC, and may be authorised to scrutinise any related non-PCC (“general”)
functions. The Panel must be able to suspend the mayor if charged with a serious offence. The order must
provide for arrangements to deal with complaints about the conduct of the mayor or the DMPC, and it must and
may apply other legislation that affects PCCs to them.
Combined authorities - functions
16. CAs exercise the transport functions which were previously the responsibility of an Integrated Transport
Authority, and any local authority functions exercisable in the CA’s area by a constituent authority specified in
the order establishing the CA. Under the new Act, the latter are no longer limited to economic development and
regeneration, and the cost of functions other than these can be recovered from constituent authorities. The
review and scheme promoting or altering a CA are no longer limited to transport plus economic development
and regeneration. So a CA can do anything that a constituent authority can do, if the order so provides. It
seems that the constituent authorities cannot veto this.
17. An order may also enable the CA to exercise any function that any “public authority” could exercise in the CA’s
area, or even a function corresponding to one that a public authority could exercise somewhere else. “Public
authority” includes (but seemingly is not limited to) a Minister or a Government department, but excludes a
county or district council. The public authority function may be exercisable by the CA alone, concurrently or
jointly with the public authority, or both jointly with the public authority and by the public authority alone. The
order may transfer the public authority’s property, rights and liabilities and may abolish the public authority. But
a national regulatory function which regulates the CA may not be exercisable by it, in its area at least. The
transfer may be conditional, and the CA may be obliged to take account of relevant policies or standards.
18. An order conferring public authority functions on a CA requires the consent of the appropriate authorities, but
again dissenting constituent authorities can be disregarded and removed from an existing CA in the first such
order, provided the CA and at least two constituent authorities agree. Nor is consent needed for an order which
revokes a provision in an existing order or disempowers the CA’s exercise of health service functions.
19. And when the order is laid before Parliament, the SoS must also produce a report explaining why it is expedient,
including the outcome of any consultation, the context and supporting evidence.
20. Section 16 of the new Act contains a separate self-standing power to make Regulations to transfer public
authority functions to local authorities. Section 18 limits this power, and the power to transfer public authority
functions to a CA, in relation to the devolution of health service functions. Both are described below.
21. Under existing legislation, CAs may be given “incidental” general powers similar to those under section 111 of
the Local Government Act 1972, but broadened to overcome the interpretation of that section which prevents
the incidental activity being too remote from the base power which it supports, and to include a “trading power”
to do things for a commercial purpose through a company. Under the new Act, an order may confer on CAs the
“general power of competence” under section 1 of the Localism Act 2011, in substitution for the incidental and
trading powers. This requires the consent of the appropriate authorities, but if the power is given in an order
which provides for an elected mayor then the provisions allowing non-consenting authorities to be disregarded
and removed from the CA apply.
Combined authorities – allocation and delegation of functions
22. In short, therefore, a CA will have transport functions and can have a range of local authority and public
authority functions, and the CA mayor may have PCC functions.
23. Section 101 of the Local Government Act 1972 provides for the delegation of functions and the establishment of
committees and sub-committees. That section, and other related governance provisions, apply to CAs much as
they apply to local authorities generally
24. An order may confer on the mayor, personally, any CA function. To distinguish them from PCC functions, they
are called “general functions”. They may only be exercised by the mayor, but he or she may delegate them to
the deputy mayor or an officer of the CA, subject to any restrictions in the order. The order may also allow the
mayor to delegate general functions to the DMPC, or to a committee. The members of the committee need not
be members of the CA, but the order can prescribe membership, the appointment of members, the chair, voting
powers, the information that is or is not to be disclosed to the committee by the CA, and the application of
political balance rules. The order may limit the mayor’s authority, for example so that certain functions require
the consent of the appropriate authorities. It can allow members or officers of the CA to assist the mayor in the
exercise of his or her functions, confer ancillary powers on the mayor (except for borrowing powers), and
authorise the mayor to appoint a single political adviser.
25. The order requires the consent of the appropriate authorities, but again if the power is given in an order which
provides for an elected mayor then the provisions allowing non-consenting authorities to be disregarded and
removed from the CA apply.
26. The order may permit the mayor to discharge his or her general functions jointly with any local authority, and for
a joint committee to be established. The governance arrangements of the joint committee can be prescribed in
the order.
27. It seems, though, that the CA cannot delegate functions to the mayor unless the Order so provides.
Combined authorities – financial matters
28. CA’s transport functions are funded through levies on constituent authorities. Levies fall within the authority’s
budget, and their council tax calculations. CA’s can also access government funding for transport schemes and
some have other sources of transport-related income.
29. The order establishing a CA sets out how the non-transport cost of the CA is to be met by the constituent
authorities, again in effect enabling the CA to levy those authorities, although these are not currently categorised
as levies under section 74 of the Local Government Finance Act 1988 or the Regulations which set out how levies
are to be calculated and recovered.
30. PCCs cover policing costs by precepting local authorities in their areas. Precepts fall outside the authorities’
budget calculations, but are recovered as part of the council tax.
31. The new Act provides that the costs of CA’s mayoral functions will be met though a precept on constituent
authorities. This will be a personal, non-delegable function. The Order will cover the maintenance of funds for
those costs and a budgeting process. If the mayor has PCC functions, the council tax requirement must contain
a calculation distinguishing the cost of the PCC functions from the cost of the mayor’s general functions. The
budget-making process is likely to include the preparation of a draft budget, review by other CA members,
scrutiny by an Overview and Scrutiny Committee and approval – or some kind of power of veto - by the CA.
32. The Local Government Finance Act 1988 is amended so that Regulations may be made permitting the recovery
by CAs of non-transport, non-mayoral function expenses as statutory levies. This requires the consent of the
constituent authorities and any existing CA.
33. The Local Government Act 2003 permits “local authorities” to borrow for the purposes of their functions. At the
moment, a CA is only a local authority under the Act for the purposes of its transport functions. The new Act
will enable Regulations to be made to remove that limitation, with the consent of the constituent authorities and
any existing CA. These Regulations require Parliamentary approval under the affirmative procedure.
Combined authorities – overview and scrutiny and audit committees
34. All CAs will have to establish one or more overview and scrutiny committees, able to review and scrutinise
decisions and actions taken in the exercise of CA functions, and mayoral general functions if relevant. They
must not have any other functions. The members of the CA (or the mayor or deputy mayor) may not be
members of the committee. The usual access to information and governance provisions of the Local
Government Act 1972 apply to them.
35. They must be able to make reports or recommendations to the authority on these and on “matters that affect the
authority’s area or the inhabitants of the area.” They must have call-in powers. They must publish their
“proposals and arrangements” and obtain the CA’s approval to them. They may establish sub-committees.
They must be able to compel members and officers to give evidence.
36. The order may make further provision about membership, voting, the chair, the appointment of a scrutiny officer
and about reports, procedures and the disclosure of information including provision for “confidential” and
“exempt” information. The majority of the members must be members of constituent councils. The chair must
either be an “independent person” (defined in the order) or an “appropriate person” (in a mayoral CA, someone
who is not a member of the same political party as the mayor, or in a non-mayoral CA, someone who is not a
member of the same political party as the majority of the members of the CA).
37. All CAs will have to appoint an audit committee, to review and scrutinise the authority’s financial affairs, risk
management, internal control and corporate governance arrangements, and the economy, efficiency and
effectiveness with which resources have been used, and to make reports and recommendations to the CA. The
order will provide for the membership of the committee, and the appointment of members. At least one
member of the audit committee must be an independent person (as defined by the order).
Combined authorities and EPBs – flexibility and consents
38. At the moment, CAs and Economic Prosperity Boards (EPBs – like CAs but with no transport functions) may not
include areas which are geographically detached. These restrictions are removed. EPBs and CAs now only have
to include two or more local authority areas, and not overlap other EPBs or CAs. If part of the area is separated
from the rest by an area that is not within the EPB or CA, or if the EPB or CA surrounds an area that is not within
it, the SoS just has to “have regard to the likely effect of the creation of the proposed EPB on economic
development or regeneration” in adjoining non-EPB areas, or “have regard to the likely effect of the creation of
the proposed combined authority on the exercise of functions equivalent to those of the proposed combined
authority’s functions” in adjoining non-CA areas.
39. Likewise, the process for creating and altering EPBs and CAs is simplified.
40. At the moment, any changes to the governance arrangements in an EPB Order have to be preceded by a review
by the EPB and the publication of a scheme. Under the new Act, reviews and schemes are only required to
change the boundaries of the EPB or to abolish or dissolve it. Other changes can be triggered by an application
to the SoS by the EPB or any authority in its area, which must say how the changes would improve the exercise of
statutory functions relating to economic development and regeneration or economic conditions in the area.
41. Similarly, the requirement for a statutory review and the publication of a scheme before a CA can be established
or changed is relaxed. In every case, the SoS must “consider that [the CA] is likely to improve the exercise of
statutory functions in the area…”, and “have regard to the need … to reflect the identities and interests of local
communities, and to secure effective and convenient local government” and the constituent authorities must
consent. But there are now two routes towards the creation of a new CA. One involves the current process of
review and scheme-making, including public consultation. The alternative just requires the SoS to carry out
public consultation. There are equivalent provisions for making changes to the CA or the governance
arrangements contained within the order.
42. At the moment, an authority may only be added to or removed from a CA if the authority in question consents.
Under the new Act it is more complicated. Consent is required from the authority to be added or removed, the
CA, and the mayor if it has one. If the authority in question is a district council within the area of a county
council, the consent of either (or both) of the district council or the county council is required to add the district
council to the CA, but the consent of both is required to remove it. The SoS’s duty to remove a dissident
authority from a CA because it does not agree to a mayor, or to the transfer of functions, overrides these
consent requirements, however.
43. This means that a district council can be added to a CA without the consent of its county council. And if a
district council is added to a CA, its county council cannot veto an order conferring functions on the CA or
Regulations giving the CA levying or borrowing powers. Likewise, a county council can be added (in relation to
all or just part of its area) to a CA without the consent of district councils in its area, and the district councils
cannot veto such an order or such Regulations. It also seems to mean that a district council can be added to a
CA at the behest of the county council even if the district council does not agree, although this may not have
been intended.
44. The mayor of a CA can veto its dissolution and abolition even if the majority of the authorities in the CA wish
this to happen.
Local authority governance and functions
45. The SoS is given a new power to make regulations prescribing the “governance arrangements” (generally the
executive arrangements or committee system operated by local authorities, their constitution and membership,
and their structural, boundary or electoral arrangements (including merger, moving to single tier and abolition).
The consent of the authorities in question is required, although for a limited period, ending in 2019, structural
or boundary changes can be made to a non-unitary district council if it consents but its county council does not
or – perhaps surprisingly – if the county council consents but the district does not.
46. The SoS is also given a power to make Regulations to transfer “public authority functions” to one or more local
authorities. This is couched in much the same terms as the power to confer public authority functions on CAs.
The authority must consent (unless the Regulations just amend or revoke earlier regulations, or remove a health
function from the authority). This replaces similar powers in the Localism Act 2011, which now only apply to
EPBs.
47. In both cases the Regulations have to be approved under the affirmative procedure and the draft must be
accompanied by an explanatory report.
Health Service functions
48. There is a special carve-out for the NHS. In principle, the power to confer public authority functions on CAs by
order, and on local authorities by Regulations, will encompass NHS functions. This is deliberate, in the interests
of health and social care integration as well as devolution. But there are limits, added to the Bill as it passed
through Parliament. The secondary legislation may not devolve “the Secretary of State’s core functions” or
national NHS regulatory functions. Both are defined in some detail. And the legislation must make provision
about the standards and duties to be placed on the receiving authority, having regard to national standards and
accountability obligations placed on the transferring authority.
49. The National Health Service Act 2006 is amended to enable the Health Secretary’s public health functions to be
delegated to CAs, NHS Commissioning Board functions (including their commissioning functions if specified
criteria are met) to be exercised jointly by or with local authorities or CAs and CCGs, and CCGs to exercise their
functions jointly with CAs. Further amendments provide for pooled funds for these arrangements, for CAs to
enter into s75 agreements for the delegation of functions, and for patient information to be shared with social
care bodies, including (but not limited to) local authorities.
The annual report
50. The new Act requires the SoS to present an annual report to Parliament about devolution in England. The report
must recite the devolution agreements reached, those that are in progress, any ministerial powers devolved to a
CA mayor, financial resources and other public functions devolved and “the extent to which consideration has
been given by a Minister of the Crown to the principle that powers should be devolved to combined authorities
or the most appropriate local level except where those powers can more effectively be exercised by central
government”.
Effect of mayoral referendums
51. An entirely unconnected amendment to the Local Government Act 2000 changes the consequences of a
referendum for an elected local authority mayor. At the moment, if the SoS makes an Order requiring an
authority to hold a referendum on moving to an elected mayor, then the authority cannot change its form of
governance or executive arrangements or hold its own referendum until the SoS’s referendum has resulted in a
“no” vote. This freezing provision is removed.
Sub-national transport bodies
52. Late amendments to the Bill unveiled a new three-letter alliteration (TLA?) – the sub-national transport body, or
STB. Transport for London (TfL) has operated as part of the GLA family since 2000. Transport for the North
(TfN) came into existence in 2014, as a non-statutory partnership involving central government, Northern city
regions and LEPs, Highways England, Network Rail and HS2 Ltd. The new Act places TfN – and in due course
perhaps other similar bodies – on a statutory basis.
53. STBs are created by Regulations made by the SoS for Transport, as corporate bodies. They must cover the areas
of at least two CAs, Integrated Transport Authorities (ITAs), county or district councils. The SoS must consider
that the STB would facilitate the development and implementation of transport strategies for the area, and thus
further the objective of economic growth. The constituent authorities must first consult any other local or
transport authorities in the area.
54. The Regulations will prescribe the STB’s constitutional arrangements (membership, voting, any executive
arrangements and the functions of any STB executive body) and may allow it to delegate functions to constituent
authorities, but it must set its own budget. The members will be appointed by the constituent authorities, from
their elected members (although they could co-opt others). Regulations will also set out the STB’s functions,
which will include preparing, consulting on and publishing a transport strategy for the area.
55. Regulations may also provide for transport functions exercisable by local and transport authorities in the area, or
by other public authorities, to be exercised by the STB. It may be able to give directions to the constituent
authorities as to the exercise of their transport functions. It will have general broad incidental and trading
powers, like an EPB and a CA that does not have the Localism Act general power of competence. The SoS can
change its boundaries, and the constituent authorities, by making further Regulations. It can, however, change
its name itself at a special meeting if at least two-thirds of the voting members agree.
National Park Authorities – general powers
56. English National Park Authorities are also given general incidental and trading powers.
Holiday pay must take into account lost commission confirms the EAT
Employment partner Phil Allen analyses this recent case in which the Employment Appeal Tribunal has confirmed that
employees who are paid commission, must have lost commission taken into account in some of their holiday pay. This
judgment is important for all employers who pay commission to employees...
The Employment Appeal Tribunal has confirmed that employees who are paid commission, must have lost commission
taken into account in some of their holiday pay. The Judgment in the case of British Gas Trading v Lock upholds the
Tribunal Judgment which we reported last year and follows on from the European Court decision in the same case. This
Judgment is important for all employers who pay commission to employees. However, it leaves many questions to be
decided and therefore there remains much uncertainty about how annual leave should be paid in practice. We understand
that the employer will be seeking leave to appeal the outcome to the Court of Appeal, which may see a ruling from that
higher court on the principles laid down in the ground-breaking Bear Scotland Judgment.
The detail
The amount of commission earned by Mr Lock was greatly in excess of his basic salary. When he took annual leave he
was paid basic salary and any commission which he had earned in previous weeks which happened to be paid during that
time. He was not paid extra for the lost ability to earn results-based commission whilst he was off. Accordingly there
was a disincentive for him to take leave, because he could not generate any new commission whilst on leave.
When this case was heard by the European Court it determined very clearly that European law required that a worker
must be paid in respect of periods of annual leave by reference to the commission payments he would have earned
during that period, had he not taken leave. This Judgment follows that of the Employment Tribunal and confirms this
applies directly in UK law to all employers. That is important because the wording of the UK Working Time Regulations
need to effectively be altered for that to be the case. The majority of the arguments before the EAT were about whether it
had to follow the Bear Scotland Judgment in a commission case, and in the light of previous Judgments. The EAT
confirmed it believed that it did and the same principles apply to commission and leave, as to non-guaranteed
(compulsory) over-time and leave.
What does this mean for me?
This judgment confirms what we have thought since the European Court judgment. It is important for any organisation
that has a commission element to pay. It means that any employee with any commission element, must have that
commission reflected in annual leave pay. However it does not provide us with any more help with the practical issues
which this European Judgment left for employers. There remains limited help about how exactly you work out what
should be paid and for whom, and when you can distinguish between European leave and UK/contractual leave. Broadly,
the Judgment means that employees with a commission element to their pay must be paid during (European) annual
leave based upon their actual average earnings, probably (but not certainly) by reference to the commission earned in
the previous twelve weeks. This judgment makes it even more important to carry out an audit of your approach to
holiday pay to identify areas of risk. It may make grievances and claims more likely.
The most important aspect of this case may be if leave to appeal is granted and if it is subsequently heard by the Court
of Appeal. Only once we have a Court of Appeal judgment will employers be able to know with any certainty whether Bear
Scotland and this decision are right for UK employers.
Comment
We know that approaches to commission and other incentive payments vary hugely. What impact annual leave has upon
your employees’ ability to earn will vary from role to role, and will depend upon what the employee is selling and how
you have incentivised them to do so. These annual leave judgments do not provide a one-size fits all answer to what you
should do. Before making decisions about a change in approach, or before you decide what risks you face, do take
advice on what it might mean for your employees and your system of reward.
Risk management of laboratory
Dewi Ap-Thomas, as Associate on our Regulatory Services Unit, underlines the importance of health and safety in
schools, especially those with an active teaching style in the subject of Chemistry…
Executive summary
A Bristol school has recently been prosecuted by the Health and Safety Executive (HSE) following an accident in which a
laboratory technician lost the top joints of three fingers and sustained internal injuries when a mixture he was preparing
for a fireworks demonstration exploded.
In detail
The laboratory technician was preparing an explosive mixture known as “Armstrong’s mixture”, a highly explosive
mixture of red phosphorus and a strong oxidizer, usually potassium chlorate. The mixture is sensitive to shock, friction
or flame. In fact, the mixture is so powerful it is used in consumer fireworks at milligram levels.
The accident occurred whilst the laboratory technician was preparing the mixture, when it exploded causing the
technician to lose the top joints of three of his fingers and rupturing his bowel. The technician spent 12 days in hospital
following the incident in October 2014 and returned to work in February 2015. However, he has since retired.
During the case HSE revealed that the demonstration had been carried out at the school on a number of previous
occasions and that the Armstrong’s mixture and other substances had been used to complete firework demonstrations.
It was further revealed that the ‘other substances’ which included flash powder and gunpowder, were both stored in the
school’s chemistry laboratory storeroom.
The school pleaded guilty to breaches of Section 2 and 3 of the Health and Safety at Work etc. Act 1974, in that it did not
conduct its undertaking in such a way as to ensure, so far as is reasonable practicable, the health and safety of its
employees or its pupils.
Background
The Health and Safety at Work etc. Act 1974 was enacted to safeguard the health, safety and welfare of those who could
be affected by the undertaking of dutyholder. In the case of this Bristol School, the accident could have been avoided and
it was evident that the school did not do all that was reasonably practicable to ensure the safety of its employees. The
HSE investigating inspector explained that the incident could have been avoided if the school had implemented clear
health and safety arrangements for their staff and pupils.
In essence, for an experiment with the potential to cause such serious harm, there should have been a clear system in
place to assess the risks involved to ensure that the task was safe, and in line with the school curriculum.
In terms of the risk assessment, the first question that would present itself is whether such a demonstration is suitable
to be completed in a school environment. Armstrong’s mixture is extremely unstable and consequently, unless there was
strong evidence to the contrary, it should have been concluded that the demonstration was far too hazardous.
Secondly, consideration should have been given as to whether the demonstration could be replaced with something less
hazardous? CLEAPSS (formally known as the Consortium of Local Education Authorities for Provision of Science Services)
give guidance on school demonstrations which are similarly educational but present a lesser hazard. The CLEAPSS
guidance also demonstrates practical measures and advice regarding the control of the risk involved in these
demonstrations.
However, whether the decision had been to use Armstrong’s mixture or ‘the other substances’ , consideration should
have been given to the requirement for the provision suitable control measures to ensure all persons involved in the
storage, preparation, use or viewing of the demonstration were protected. For some individuals in direct contact with the
mixture it may be concluded that personal protective equipment should have been made available.
Lastly, there should have been documentation such as a safe working procedure, or similar, provided to those involved in
the demonstration. When provided, such documentation should be clear and understood by all to whom it applies. The
documentation itself should be based on the findings of the risk assessment, hence, giving information regarding the
hazardous nature of the demonstration. In this prosecution it is clear that the inherent danger of the demonstration had
not been considered and as consequence, the appropriate arrangements where not in place to minimise risk.
Conclusion and implications
As a school, you must ensure that your health and safety policy and supporting documentation is present and represent
the hazards and risks created by your activities. It is important to consider health and safety management within your
premises. Most schools are well aware of the risks involved in the chemistry laboratory, but there are many significant
risks on school premises that remain that are often missed.
If you manage health and safety in your school you should challenge yourself: are you are confident that you are aware
of the significant health and safety risks created by your activities? These risks should be noted, risk assessed and the
appropriate information and procedures provided to those who may be affected if something goes wrong. If not, you
could be investigated and potentially prosecuted by the HSE if an employee, pupil or any other member of the public is
injured whilst attending or completing activities at your school.
This case illustrates the significance of ensuring health and safety is adequately managed and the potential
consequences when it is not.
Gender pay gap reporting and what it means for you
Companies have finally been provided with the gender pay gap information that they need to publish. Phil Allen, a
Partner in our Employment team, extracts the most relevant parts of the draft Equality Act 2010 (Gender Pay Gap
Information) Regulations 2016 and has compiled a handy checklist for employers...
We have finally been provided with the details of the gender pay information which employers will need to publish. Whilst
the media headlines have focused on the potential naming and shaming of employers who fail to report, the importance
of the Regulations for most of you will be in the detail of what exactly it is you will be required to collate and publish
about your employees’ pay.
The detail
What the draft Equality Act 2010 (Gender Pay Gap Information) Regulations 2016 say is the following:
The information on pay required will be a snapshot as at 30 April 2017. It will apply to the pay period for each
employee which includes that date. The obligation will be repeated annually for each period including 30 April
each year.
All employers will have to publish information calculated on the same basis. That means you will have to use the
calculations laid down in the Regulations, you will not be able to use your own or include/omit the information
you want to.
You will be required to publish figures which show gender pay difference as a percentage of the average female
employee’s pay. There will be two such figures. One showing the difference in mean pay between male and
female employees (that’s the average of the total of all employees’ pay), and the other showing the difference in
median pay (that is putting all your male/female employees in a line and identifying the pay of the person in the
middle).
The pay to be included in the calculation includes: basic pay; paid leave; maternity pay; sick pay; area
allowances; shift premium pay; car allowances; on-call and standby allowances; and clothing, first aider or fire
warden allowances. It does not include: overtime pay (which may be important for some); expenses; salary
sacrifice; benefits in kind; redundancy pay; arrears of pay; or tax credits. Most bonuses are to be treated
differently and will fall outside these figures.
You will also be required to present a figure which shows the difference in mean bonus pay earned between
male and female employees during the period of 12 months preceding the 30 April each year. This longer
reference period means that bonuses will be captured whenever they are paid in the year (whereas pay is focused
on pay each April). Bonuses are stated to include all profit share and long term incentive payments, as well as
the “equivalent value of shares on the date of payment” (whatever that might mean which is likely to be
contentious and create a headache for some of you).
You will be required to report the proportion of male and female employees who received bonus pay in the 12
month period.
You will also be required to publish numbers of male and female employees in each of the four quartiles of your
overall pay range.
The information will be required to be accompanied by a written statement which confirms the information is
accurate and is signed by a director, partner, or the most senior employee.
The information must be published on your organisation’s website: in English; in a manner that is accessible to
all employees and the public; and be kept there for at least three years.
The information will also be required to be uploaded to a government website, assisting the government in
collating the information.
The government has decided not to impose any requirement on employers to provide other information or to
explain the gender pay gap, but you will if you wish be able to add an explanation or other information. In
practice for many of your organisations this additional explanation is likely to be very important.
What will this mean for me?
There is one piece of good news for those of you who are in organisations subject to the Regulations, and that is that the
date for publication has been left open for employers. Whilst the snapshot must relate to pay at the end of April each
year (starting 2017), the information ‘only’ needs to be published within 12 months of that date. That means that the
last possible date for publishing information will be April 2018, leaving a reasonably long lead-in period for you to
consider what to say. However the information snapshot must relate to April 2017, so you will need to consider now
what your pay gap information will look like for pay at that date (and for bonuses this will relate to all paid in the year
from May 2016).
We already knew that the Regulations would not apply to employers with fewer than 250 employees and most public-
sector employers (that is those subject to the public-sector equality duty). It has been confirmed that this will not be
changed, so all private and voluntary sector employers with 250 employees or more will need to publish gender pay gap
information. The Regulations do not have any additional enforcement powers added to what had been proposed. You
need to ensure that you comply with the Regulations to avoid being named and shamed, but what will be important
about the content of the information posted will be publicity and/or what your employees may say it shows about your
organisation (possibly in Tribunal).
Comment
It is good that we now have a far greater idea about the detail which will need to be provided. However at the moment
these are currently draft Regulations (with a further brief period of consultation about them). We are told the final version
will be available by October and guidance will be issued to assist. The Government has endeavoured to ensure that all
employers produce consistent information. They have not required you to provide gender pay information by pay band
or grade, but that does not stop you publishing such information alongside the required numbers if it better reflects
your organisation’s approach to pay. For some organisations complying with the rules may be relatively simply. For some
explaining a gender pay differential may be a problem. For others collating this information may be time-consuming and
difficult. This is something you need to start thinking about now.
Cases
We highlight new cases of interest to local authorities from January and February 2016
Summary
Agriculture
Benefits
Childcare
Civil procedure
Costs
Council tax
Criminal procedure
Education
Employment
Environment
Flooding
Health
Housing
Human rights
Mental health
Planning
Procurement
Rates
Real Property
Social care
Agriculture
Robert Lindley Ltd v East Yorkshire Council (2016) UKUT 6 (LC) UT (Lands) 11/01/2016
A local authority was liable to compensate a farming company for damage to its crop field caused by an operation to
pump floodwater out of a nearby village. Although the pumps had been loaned by the Environment Agency, which had
helped in their initial operation, the local authority was the only risk management authority in the instant case that
had the power to carry out work to reduce the water level in the village. The Environment Agency's role had been one
of co-operation and assistance as required by the Flood and Water Management Act 2010 s.13(1).
Benefits
R (on the application of (1) Susan Rutherford (2) Paul Rutherford (3) Warren Todd (by his litigation friend Susan
Rutherford) v Secretary of State for Work & Pensions : R (On The Application Of A) (Appellant) v Secretary Of State For
Work & Pensions (Respondent) & Equality & Human Rights Commission (Intervenor) (2016) EWCA Civ 29
The court considered the lawfulness of the scheme under the Housing Benefit (Amendment) Regulations 2012, which
reduced housing benefit for those who were under-occupying their homes. The Housing Benefit Regulations 2006
reg.B13 discriminated against families with disabled children who required an additional bedroom for overnight
carers. It also discriminated against female victims of domestic violence living in accommodation adapted under the
sanctuary scheme. There was no objective justification for that discrimination.
Childcare
Re P (a child) (2016) EWCA Civ 3
A judge had erred in care proceedings in evaluating the mother's position and ruling her out as a long-term carer
before considering adoption. He should have analysed the pros and cons of adoption and then placed that analysis
against his conclusions on the mother.
Nottingham City Council v (1) LM (2) DW (3) LW (by her children's guardian) (2016) EWHC
The court gave guidance on good practice and fundamental steps to be taken in local authority care proceedings in
respect of newborns. Save in the most unusual and exceptional circumstances, local authorities must make
applications for public law proceedings in respect of newborns timeously and within five days of the child's birth at
most.
Birmingham City Council v SK (by her children's guardian) (2016) EWHC 310 (Fam)
Birmingham City Council had, in conjunction with the police, prepared a protocol which provided a clear and detailed
guide to the steps to be taken in cases of actual or suspected child sexual exploitation. Other local authorities and
police forces should consider using the protocol.
A Local Authority v (1) Mother (2) Father (3) Child (by his children's guardian) (2016) Fam Ct 28/01/2016
An order was made placing a 10-month-old child for adoption and dispensing with his mother's consent on the basis
that he would be at risk of significant emotional harm in her care. There were no other family members who could put
themselves forward as carers, and a long-term foster placement would not meet the child's needs for a permanent
home and family.
Civil procedure
R (on the application of Newham London Borough Council) v Stratford Magistrates' Court (2016) DC 22/01/2016
A local authority which had prosecuted a case in a magistrates' court was entitled to a case stated where, as a result of
a judge's ruling of law, the evidence it had offered would no longer prove the offence. The judge had not been
referred to a relevant authority and it was strongly arguable that his ruling had been incorrect.
Burdett v Devon County Council (2016) QBD (Admin) 14/01/2016
The court overturned a district judge's decision not to award a successful appellant his costs in magistrates' court
proceedings. The judge had failed to scrutinise the respondent local authority's behaviour, or to take into account his
own prior findings of fact, to determine if it had acted reasonably and properly in commencing and continuing the
proceedings.
Bexley London Borough Council v XXX (2016) DC 24/02/2016
A district judge had erred in awarding costs under the Council Tax (Administration and Enforcement) Regulations
1992 reg.34(7) to a local authority on an arbitrary sliding scale in respect of liability orders for council tax. The district
judge had to calculate the costs reasonably incurred, and the question of whether the costs had been reasonable was
fact specific.
Costs
Nicolson v Grant Thornton Uk Llp (Respondent) & Haringey London Borough Council (First Interested Party) &
Tottenham Magistrates (Second interested party) (2016) DC 25/02/2016
An auditor had been entitled to refuse to seek a declaration of unlawfulness or issue a report in the public interest in
respect of court costs charged by a local authority in seeking liability orders for unpaid council tax. The costs had
been reasonably incurred by the local authority and any policy decision to charge the maximum amount allowed by
law in order to deter non-payers did not render the costs unlawful.
Council tax
Harminder Singh Soor v Redbridge London Borough Council (2016) EWHC 77
A suspended committal order, arising from the appellant's liability for unpaid council tax, was unlawful as the
repayment period exceeded six years, which was too long.
Zafar V Redbridge London Borough Council (2016) QBD (Admin) 03/02/2016
The court dismissed a homeowner's appeal against a decision that she was liable for outstanding council tax, on the
basis that the appeal was out of time and totally without merit.
Criminal procedure
Zafar v Redbridge London Borough Council (2016) QBD (Admin) 03/02/2016
The court dismissed a homeowner's appeal against a decision that she was liable for outstanding council tax, on the
basis that the appeal was out of time and totally without merit.
Education
R (on the application of HA by his father & litigation friend, AA) (Claimant) v Hampstead School Governors (Defendant)
& London Borough Of Camden (Interested Party) (2016) EWHC 278
The governing body of a school had failed to formulate and communicate the reasons and objectives for its decision
to transfer a pupil for off-site educational provision as soon as practicable after the decision was made and to keep
the off-site placement under review as required by the Education (Educational Provision for Improving Behaviour)
Regulations 2010 reg.4 and reg.6.
Employment
Wandsworth London Borough Council v Mc Vining & Ors (2015) EAT 18/12/2015
Parks police officers employed by a local authority served in "a constabulary maintained by virtue of an enactment"
within the Employment Rights Act 1996 s.200(2) and were thus precluded from bringing claims of unfair dismissal:
the ECHR did not require the court to apply a different interpretation of s.200(2). The officers' trade union was
precluded by the Trade Union and Labour Relations (Consolidation) Act 1992 s.280 from bringing claims for a
declaration and protective awards.
Environment
Robert Lindley Ltd v East Yorkshire Council (2016) UKUT 6 (LC) UT (Lands) 11/01/2016
A local authority was liable to compensate a farming company for damage to its crop field caused by an operation to
pump floodwater out of a nearby village. Although the pumps had been loaned by the Environment Agency, which had
helped in their initial operation, the local authority was the only risk management authority in the instant case that
had the power to carry out work to reduce the water level in the village. The Environment Agency's role had been one
of co-operation and assistance as required by the Flood and Water Management Act 2010 s.13(1).
R (on the application of Silke Roskilly) v Cornwall Council & Ors (2015) EWHC 3711
The grant of planning permission for a development within the Town and Country Planning (Environmental Impact
Assessment) Regulations 2011 Sch.2, requiring a screening direction to see whether it required an environmental
impact assessment, was rendered unlawful by the secretary of state's subsequent positive screening direction
requiring an environmental impact assessment: that direction meant that grant of consent had not been accompanied
by environmental information, contrary to reg.3(4).
Flooding
Menston Action Group (Claimant) v City Of Bradford Metropolitan District Council (Defendant) & Chartford