News

Local Government Transparency Code 2014

The Department for Communities and Local Government (CLG) has published a Local Government Transparency Code.  The code has been issued by the Secretary of State for Communities and Local Government, using the powers in section 2 of the Local Government, Planning and Land Act 1980 to issue a Code of Recommended Practice as to the publication of information by local authorities about the discharge of their functions and other matters which he considers to be related.  The code sets out requirements as to information which must be published and information recommended for publication.

Consultation

Government consultations currently in progress include:

Statutory Instruments

Statutory instruments made recently which are relevant to local authorities include:

  • Education (School Teachers’ Prescribed Qualifications etc) (Amendment) Order (2014/1063).  This Order amends the Education (School Teachers' Prescribed Qualifications, etc) Order 2003.  The 2003 Order prescribes persons who are school teachers for the purposes of section 122 of the This Order removes the restriction that instructors are prescribed only if no suitable qualified teacher or a teacher on an employment-based scheme is available.  Available at: http://www.legislation.gov.uk/uksi/2014/1063/contents/made
  • European Parliamentary Election Petition (Amendment) Rules 2014 (2014/1129).  These rules amend Rule 5 of the European Parliamentary Election Petition Rules 1979 by allowing a payment into court on account of security for costs in respect of proceedings for an election petition to be made in accordance with Rules 7 and 8 of the Court Funds Rules 2011 in relation to deposit of funds in court.  Available at: http://www.legislation.gov.uk/uksi/2014/1129/contents/made
  • European Parliamentary Elections (Amendment) Regulations 2014 (2014/923).  These regulations amend the European Parliamentary Elections Regulations 2004.  Available at: http://www.legislation.gov.uk/uksi/2014/923/contents/made
  • Local Authorities (Conduct of Referendums) (Council Tax Increases) (England) (No 2) Regulations 2014 (2014/925).  These regulations amend the Local Authorities (Conduct of Referendums) (Council Tax Increases) (England) Regulations 2012 by applying for the purposes of referendums relating to increases in council tax, changes that have been or are to be made to the legislation relating to the administration of parliamentary and local government elections.  Available at: http://www.legislation.gov.uk/uksi/2014/925/contents/made
  • Local Authorities (Conduct of Referendums) (England) (Amendment) Regulations 2014 (2014/924).  These regulations amend the Local Authorities (Conduct of Referendums) (England) Regulations 2012 by applying for the purposes of referendums relating to the governance arrangements of local authorities, changes that have been or are to be made to the legislation relating to the administration of parliamentary and local government elections.  Available at: http://www.legislation.gov.uk/uksi/2014/924/contents/made
  • Local Authorities (Goods and Services) (Public Bodies) (England) Order 2014 (2014/1197).  This order, which applies in England, designates various community rehabilitation companies and the National Probation Service as public bodies for the purposes of the Local Authorities (Goods and Services) Act 1970.  Available at: http://www.legislation.gov.uk/uksi/2014/1197/contents/made
  • Local Elections (Communities) (Welsh Forms) (Amendment) Order 2014 (2014/919).  This order, amends the Local Elections (Communities) (Welsh Forms) Order 2007, which principally prescribes Welsh versions of certain forms or forms of words to be used at community elections held in Wales.  The forms included in the Local Elections (Communities) (Welsh Forms) (Amendment) Order 2014 reflect changes made to the English versions of the forms and forms of words made by the Local Elections (Parishes and Communities) (England and Wales) (Amendment) Rules 2014.  Available at: http://www.legislation.gov.uk/uksi/2014/919/contents/made
  • Local Elections (Principal Areas) (Welsh Forms) (Amendment) Order 2014 (2014/918).  This order amends the Local Elections (Principal Areas) (Welsh Forms) Order 2007, which principally prescribes Welsh versions of certain forms to be used at county and county borough elections held in Wales.  The forms included in the Local Elections (Principal Areas) (Welsh Forms) (Amendment) Order 2014 reflect changes made to the English versions of the forms and forms of words made by the Local Elections (Principal Areas) (England and Wales) (Amendment) Rules 2014.  Available at: http://www.legislation.gov.uk/uksi/2014/918/contents/made
  • Police and Crime Commissioner Elections (Amendment) Order 2014 (2014/921).  This order amends the Police and Crime Commissioner Elections Order 2012, for the purpose of applying for the purposes of police and crime commissioner elections (“PCC elections”), changes that have been or are to be made to the legislation relating to the administration of parliamentary and local government elections.  Available at: http://www.legislation.gov.uk/uksi/2014/921/contents/made
  • Public Audit (Wales) Act 2013 (Approved European Body of Accountants) Order 2014 (2014/890).  This order, which applies in Wales makes provision that the Chartered Institute of Public Finance and Accountancy and the Chartered Institute of Management Accountants are approved European bodies of accountants for the purposes of section 19(9) of the Public Audit (Wales) Act 2014.  Available at: http://www.legislation.gov.uk/wsi/2014/890/contents/made  

Cases

Recent cases relevant to local authorities include:

Consultation

  • R (on the application of LH) v Shropshire Council [2014] All ER (D) 06 (May).  The claimant in this case had a learning disability and care needs and had been using a day centre provided by the defendant local authority.  The local authority carried out consultation on the reconfiguration of day centre services but regarded it as unnecessary to hold subsequent consultations in relation to particular day centres which it regarded as necessary or desirable to close.  It decided to close the centre that the claimant used.  The claimant issued proceedings, arguing that she and others should have been consulted about the closure of the centre itself before it occurred and that the local authority had failed to comply with the public sector equality duty in section 149 of the Equality Act 2010.  The proceedings were dismissed and the claimant appealed.

The appeal was allowed.  It was held that generally, in the absence of any express or implied duty to consult, the obligation to consult stemmed from the expectation that a public body making decisions affecting the public would act fairly.  If an authority withdrew a benefit previously provided to the public, it would usually be under an obligation to consult with the beneficiaries of that service before withdrawing it.  That obligation required that there be a proposal, that the consultation take place before a decision was reached and that responses be conscientiously considered.  The duty to consult would arise when a person had an interest which the law decided was one which was to be protected by procedural fairness.  In this case, the local authority had mistaken its obligations at the last stage.  The omission to consult users and relatives about the closure of the centre before it had decided to close had been unlawful.  In respect of the public sector equality duty, the services provided by the local authority and the widespread consultations that had taken place in relation to the reconfiguration of adult day care services had shown that the local authority had due regard to its duty.

Education

  • H v Warrington Borough Council [2014] All ER (D) 25 (Apr).  This case related to B, who was 12 years old and had special educational needs within the meaning of Part 4 of the Education Act 1996.  The respondent local authority made and maintained a statement of special educational needs in respect of B.  B’s parents wanted him to attend an independent residential special school, which the local authority accepted would meet his needs but the local authority said that B should attend an alternative school, which was a maintained day special school.  The local authority accepted that if B attended the day school, the local authority would also provide B with residential respite care.  The total cost for a placement at the residential special school was £92,000 and the total cost for a placement at the day special school was £90,400.  The statement of special educational needs named the day special school.  B’s parents appealed.  The First-tier Tribunal (Health, Education and Social Care Chamber) and the Upper Tribunal (Administrative Appeals Chamber) dismissed the parents’ appeal.  The mother appealed.  The issue for the Court of Appeal to determine was whether, in comparing the cost of placements at the two schools, the local authority and the tribunals should have left out of account respite care and other costs that were to be met from public expenditure and limited the comparison to the costs that had to be met from the education budget.

The appeal was allowed.  It was held that the correct meaning of “public expenditure” in section 9 of the Education Act 1996 was expenditure incurred by a public body, as opposed to expenditure by a private body.  The purpose of the qualification to the section 9 duty was to avoid unreasonable public expenditure.  The obligation to have regard to the general principle that pupils were to be educated in accordance with the wishes of their parents should not be at the cost of unreasonable public expenditure.  The tribunal had erred in holding that for the purposes of section 9 of the Education Act 1996 the First-tier Tribunal had been entitled to leave out of account the respite and other costs that were met from public expenditure but not from the education budget of the local authority.  If those costs were not left out of account, the cost to the public purse of placing B at the residential special school was lower than the cost of placing him at the day special school.  In those circumstances, it could not be said that if the tribunal had directed itself correctly, it would have reached the same conclusion.

Licensing

  • R (on the application of Bridgerow Ltd) v Cheshire West and Chester Borough Council [2014] EWHC 1187  In this case, the claimant had been granted a sexual entertainment venue licence by the defendant local authority in 2012 and applied to renew this in 2013.  The local authority refused the application to renew the licence.  That decision was taken by a panel of 12 members.  The panel was equally divided and the chair made a casting vote.  The claimant applied for judicial review of the decision, arguing that the decision should have been taken by a panel of three. The application was allowed.  It was held that the provisions of the local authority’s constitution meant that the renewal application should have been decided by a panel of three members drawn from the full committee on a politically proportionate basis.  It was important that the manner in which executive functions were carried out were published, transparent and reliable.  The fact that the decision was taken by 12 members was not negligible as the panel had been equally divided and was not constituted on a politically proportionate basis, so it could not be said that the same result would have been achieved by a panel of three.