Local Government Lawyer Issue 24

LOCAL GOVERNMENT LAWYER REUTERS/Todd Korol

ISSUE 24

THIS ISSUE’S FEATURED ARTICLES:

Staff mutuals: Issues for the local authority Andrew Arden QC: AUDIT & ACCOUNTABILITY Interview with Rebekah Straughan SWEET & MAXWELL

whITe booK 2014

iNspiriNG cONFiDeNce in research · in court · in practice

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priNt · ebook · oNliNe

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WELCOME

In this first issue of 2014 we are delighted to have Andrew Arden, QC join us as a special contributor. As well as being a barrister at Arden Chambers in London, Andrew is General Editor of a number of Sweet & Maxwell titles. Andrew has kindly contributed a piece in Local Audit and Accountability. In other articles he discusses the recent updates to local government law and the key challenges for legal practitioners today.

LOCAL GOVERNMENT LAWYER ISSUE 24

We also hear from our very own Kirsten Maslen, Public Sector Editor at Practical Law, about local authority spin out companies and mutuals.

14 UPDATE FROM LAWTEL, WESTLAW UK and practical law

We also speak with Rebekah Straughan from Colchester Borough Council and discuss her career within housing law, working within the Public Law Partnership, and more.

22 Product Feature: ProView

Finally, we also have a feature on Thomson Reuters ProViewTM our e-reader platform.

Chris Hendry, Head of Advanced Media for Thomson Reuters, Legal UK & Ireland, discusses recent enhancements to ProView and how it can help local government legal professionals.

in this issue: 4 LOCAL GOVERNMENT NEWS 6 ARTICLE:

Staff mutuals: Issues for the local AUTHORITY 12 Interview: Rebekah Straughan

17 ARTICLE: AUDIT & ACCOUNTABILITY

24 BOOKSHOP 26 LOCAL GOVERNMENT LAW AT YOUR FINGER TIPS 28 PROFILE: Andrew Arden QC 30 YOUR THOMSON REUTERS Account Managers CONTACTS

If you need any further information about the Thomson Reuters products and services referred to in this issue, you’ll find a list of account managers with contact details on page 30.

Enjoy the issue

Legal solutions from Thomson Reuters legal-solutions.co.uk Jonathan Chilton Editor

SWEET & MAXWELL: sweetandmaxwell.co.uk WESTLAW UK: westlaw.co.uk

localgovernmentlawyer@thomsonreuters.com THOMSON REUTERS, 100 Avenue Road, London, NW3 3PF

PRACTICAL LAW: uk.practicallaw.com

Designed by: Michelle Bradshaw

SERENGETI: serengeti.com/international/uk

LAWTEL: latwel.com SOLCARA: solcara.com

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NEWS

WESTLAW UK UPDATE REUTERS/Edgard Garrido

So far this year, Westlaw UK have made some exciting changes to our IDS Employment Law service, announced that a new direction is being taken with Westlaw UK Insight, and continued our digitisation of books and looseleafs, launching another six titles online.

CHANGES TO IDS EMPLOYMENT LAW ON WESTLAW UK Westlaw UK have recently launched significant changes to the customer experience when researching IDS Employment Law. With a focus on ease of use, users will now be able to find the content they need in one place, including IDS Employment Law Brief, Cases, Handbooks, and Current Awareness. Users will also now have the ability to search across all content at the one time, providing a cleaner, more efficient, and improved employment law solution.

HOW WILL IT CHANGE? The IDS Employment Law tab Subscribers of the core Westlaw UK subscription as well as the IDS add-on will see the IDS Employment Law tab as the first option on their top tool bar.

This tab takes users to the IDS Employment Law homepage. IDS Employment Law standalone only subscribers will be brought to the homepage upon log in.

follow us at twitter.com/ localgovlawyer

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Search across IDS content only The homepage allows you to search across all your IDS Employment Law content at once, saving you valuable time and ensuring that nothing is missed. Previously, it was not possible to search Brief or Current Awareness at the same time as the Handbooks or Employment Law Cases.

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Content sets You can use the check-boxes on the left to choose which of the IDS content sets you want to include in a search. This is also the way to browse the content sets – clicking one of the titles brings you to the landing page for the content type. From that point, you can browse either by date (for Current Awareness), subject (for IDS Employment Law Handbooks and IDS Employment Law Cases) or by a combination of both (IDS Employment Law Brief).

Note: The list of content types will change depending on subscription options - e.g. if you do not take IDS Handbooks, you will not see the Handbooks in the list.

Document title/case name search You can narrow a search from the IDS Employment Law homepage by restricting it to document titles and case names. This will run your search query against the title of Current Awareness article and Handbook sections, the Case name and subject headings in Employment Law Cases, and the article title and case name of Brief articles.

What’s New? Employment lawyers often need to quickly find out the latest developments, and that where the What’s New come in handy. The Brief link goes to the contents page for the most recent edition.

The Current Awareness link goes to a list of IDS news alerts in reverse chronological order. The IDS Employment Law Cases and Handbooks links go to PDF documents that contain information on and links to the last month’s updates.

At A Glance This is content that used to be available on the idsbrief.com website but could not previously be accommodated on Westlaw UK. The links go to PDF

documents listing qualification periods and time limits for a variety of employment rights; the compensation limits that apply to employment claims; levels of statutory payments (e.g. maternity pay, sick pay); prospective developments in legislation; and notable cases that are waiting to be decided by the appeal courts. This information, which is also available on the ids.thomsonreuters.com site, will be regularly updated.

A NEW DIRECTION FOR WESTLAW UK INSIGHT Earlier this year we were excited to announce that our online legal encyclopedia, Westlaw UK Insight is changing. Insight has had a great start; amassing more than 1,000 expertlywritten articles since launch in 2012. This year, we’re taking it in a new direction and making it even more valuable to our customers.

Insight will continue to provide a topicbased navigation for Westlaw UK, with a few key differences. We’ll be moving away from longer articles which are hard to keep up to date, towards accelerated topic coverage and vastly improved currency.

With the new approach, Westlaw UK Insight overviews will be expertly written and tightly focused.

The taxonomy of topics is changing over time as we’re making this consistent with the taxonomy used by our other legal solutions, including Practical Law. This will make it easier for customers who use more than one of our solutions to navigate between them.

Customers may also notice that new Insight articles take a different format.

New articles will contain an overview, but not a detailed discussion section. We won’t remove the detailed discussion section from existing articles, unless or until it becomes out of date.

This new punchier format will allow users to get all the essential information about a topic much faster and continue their research with ease and will also allow us to expand our content, providing better coverage across topics and more articles.

Users will still be able to find the latest articles added or updated on Insight by searching #WLUKInsight on Twitter.

We’re keen to know what you think of the new Westlaw UK Insight. Please let your account manager know if you have any feedback.

NEW BOOKS & LOOSELEAFS So far this year we’ve added 6 new titles and have over 40 planned to launch through the rest of 2014. Titles we’ve launched this year include: Arlidge & Parry on Fraud – live 08-02-2014 Confiscation and Civil Recovery – live 21-03-2014 EU Antitrust Procedure – live 13-02-2014 Frustration and Force Majeure – live 08-02-2014 The Police and Criminal Evidence Act – live 21-02-2014 Unjustified Enrichment (Greens) – live 04-02-2014 To make sure you keep up to date with what titles go live when, you can follow Westlaw UK on Twitter @WestlawUK where we give live updates as new books & looseleafs are launched online. Check out the Books & Looseleafs library section http://www.westlaw. co.uk/inside-westlaw-uk/books-looseleafs/books-library/, which has all the titles currently live and those launching throughout 2014. The library also includes cover photos and pre-lims, which are court ready!

For more information on any of the enhancements above visit westlaw.co.uk or contact our customer service team at customer.service@westlaw.co.uk or on 0800 028 2200

Rima joins the local government team Thomson Reuters are delighted to announce that Rima Mukherjee has joined the local government team. Rima has worked at Thomson Reuters legal for 7 years, previously managing strategic accounts within Central Government including the Ministry of Justice, Crown Prosecution Service and the Legal Information Online Network. Rima will look after Scotland and the North East of England.

Prior to joining Thomson Reuters, Rima worked within publishing and also the financial sector within the UK, Dubai and India. She also has an MBA from Calcutta University.

Mark Langsbury, team leader for local government and academic said “We are very excited to have Rima as part of the local government team. She has a wealth of experience from lots of sectors, but especially dealing with central government and we are looking forward to her helping local government accounts with their requirements such as improving efficiencies.”

To find out if Rima is your new account manager please turn to page 30. You can contact Rima on 07990 887 945 or on email rima.mukherjee@thomsonreuters.com

Create advanced first drafts in half the time FastDraft is Practical Law’s automated drafting tool which allows you to quickly create advanced first drafts and share data across documents at the touch of a button.

It helps you to create documents faster by using shortcuts such as importing information from your existing projects, your contacts or from Companies House.

By making a few important choices up front and entering key data, you can quickly create a honed first draft. FastDraft shares information from one document across a suite of relevant documents, allowing you to produce ancillary documents at the touch of a button.

• Increase efficiency by creating advanced first drafts in half the time • Extensive suite of key documents available with FastDraft • Know-how where you need it with integrated drafting resources in each document • View and revise all drafts before exporting to Microsoft Word • Your changes reflected across all documents FastDraft is available on more than 200 Practical Law standard documents and is free as part of a Practical Law subscription. For more information on FastDraft contact your account manager or visit uk.practicallaw.com/fastdraft LOC ALG OVL AW YER .CO.UK

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REUTERS/Stringer Shanghai

Staff mutuals:

Issues for the local authority Kirsten Maslen

Background – why are they doing it?

As part of the Government’s Open Public Services agenda, a number of initiatives have been introduced and promoted to encourage people to take over the delivery of public services.

This is not new- the “right to request”, introduced in 2008 enabled employees of PCTs to apply to deliver services through a social enterprise. However, with the community right to challenge enshrined in legislation, employees and community groups are not only able to bid to take over the provision of public services, but local authorities are, subject to certain restrictions, legally obliged to facilitate such requests.

This article looks at the issues a local authority is likely to encounter when it decides to support a request by a group of its employees to set up a new entity to take over a run a local authority service.

Community right to challenge The Localism Act 2011 introduced: • The community right to challenge (CRC) (Chapter 2, LA 2011) which enables employees and community groups to bid to take over services run by a local authority.

• The right to bid for assets of community value (Chapter 3, LA 201) which enables communities to develop a bid and raise capital to buy assets designated as of community value.

The purpose of the CRC is “to enable communities and the bodies that represent them who have innovative ideas about how services could be shaped to better meet local needs, or could be run more cost effectively” (Paragraph 1.2, Consultation on Community Right to Challenge).

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Under the CRC, local authorities must consider requests to take on and run public services from voluntary groups, parish councils or two or more employees of the authority.

If a local authority decides the service should be outsourced, it must then follow the appropriate procurement route to source the new provider.

The request under the CRC can be rejected on a number of grounds, for example, where the service is ceasing, or is already the subject of a procurement exercise. Until 1 April 2014, certain health and social care services are excluded from these provisions. It will be interesting to see whether the lifting of the exemption prompts requests to take on such services.

Employee-led spin outs from local authorities: examples 3BM 3BM is a staff led mutual joint venture between staff from the London Boroughs of Hammersmith & Fulham and Westminster, the Royal Borough of Kensington & Chelsea and a private sector partner, Prospects. 3BM provides financial management, IT and building development services to schools. It is a company limited by shares.

Epic ELM C.I.C Epic C.I.C is a staff mutual supported by the Royal Borough of Kensington & Chelsea. It is a community interest company delivering youth support services.

Aspire Sussex Ltd Aspire Sussex is a company limited by guarantee with charitable status. It is a spin out of the former adult education department of West Sussex County Council.

The Cabinet Office’s Mutuals Information Service includes a number of additional case studies on staff mutuals (http://mutuals.cabinetoffice.gov.uk/public-servicemutuals-action).

Local authority companies However, the Localism Act 2011 did not introduce the concept of creating local authority spin out companies.

Local authorities have been experimenting with different delivery models for public services for many years, including participating in corporate structures in partnership with other public and private bodies.

There are various reasons for forming a local authority wholly-owned company, the most common being to enable the authority to trade commercially, as required under section 95 of the Local Government Act 2003 and section 4 of the Localism Act 2011. The formation of such companies by local authorities is increasing, driven by local authority income generation initiatives.

However, a decision by a local authority to support the creation of a staff-run enterprise is an entirely different situation because the local authority may not have any stake in the new business.

What is a staff mutual?

The term “staff mutual” has been used to refer to a variety of organisations with an element of employee ownership or governance. These organisations may be charitable companies, not for profit or may have a purely commercial focus.

In many cases, staff mutuals are not mutuals in the traditional meaning of the word, that is, an organisation in which the owners of the business are also the employees or members, as in the case of a building society or co-operative society.

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However, part of the thrust of government policy in this area is that local people who are most invested in the outcome of an enterprise, often the employees, will be empowered to deliver services through exercising a degree of control over how they are delivered. It is therefore important that they participate in the governance of these organisations.

“The Government is committed to giving public sector workers the right to bid to take over running services they deliver. Two or more employees of the relevant authority are eligible to use the right.

We expect employees of the relevant authority to form an employee-led structure to take on running services under the right (paragraph 1.13, Community Right to Challenge, Statutory Guidance).”

What is meant by an “employee-led structure” is unclear and will vary. Employees may form a traditional mutual, such as a community benefit society; a company in which each employee receives shares; or a company limited by guarantee, in which case their powers will be exercised through certain structures embedded in the company’s constitution, such as the right to attend board meetings or call for documents, rather than through voting rights as shareholders.

Legal structures for staff mutuals: options Company limited by shares • Most common structure for commercial entities.

• Enables profit to be extracted through share transfer and payment of dividends.

Company limited by guarantee • Commonly used in not for profit sector.

• May apply for charitable status.

• No means for members to extract profit.

Community interest company (CIC) • May be profit-making but with a focus on community benefit.

• Payment of dividends restricted.

• Asset lock to ring-fence proceeds from asset sales to the organisation’s stated community benefit.

Community benefit society • Usually charitable or philanthropic.

• Restrictions on sale of assets and distribution of profits.

Charitable incorporated organisation (CIO) • New type of charitable organisation.

• Relatively simple to set up.

• As with all charities, all assets and income must be applied to the charitable purpose.

Whichever model is chosen, employees will need legal and financial advice on the best option for them. How will they access this advice if not through the local authority?

Legal issues Before assisting in the establishment of a staff mutual, a local authority must ensure it is acting lawfully.

There are several elements to this.

Powers Firstly, the authority must have the power to set up or assist in the setting up of the company. This is of less concern to English local authorities since the introduction of the general power of competence under section 1 of the Localism Act 2011, which enables local authorities in England to do anything an individual generally may do, except to the extent that such action is proscribed or restricted under other legislation.

Local authorities in Wales retain the well-being power in section 2 of the Local Government Act 2000, which is more restrictive, for example, because it limits the use of the power to purposes which directly promote economic, social or environmental well-being. As held in the case of Brent London Borough Council v Risk Management Partners Limited and Others [2009] EWCA Civ 490, it is not enough that an action will save the relevant authority money and have an indirect effect on promoting well-being.

Aside from the powers to support staff mutuals, if the new entity will have a contract with the authority, the authority must also consider whether that support and subsequent outsourcing of the service to a staff mutual is a good investment, representing best value for the authority. After all, the entity will have no cash reserves and no track record of delivering services as a cohesive unit. The authority must therefore interrogate the staff mutual’s business plan in detail to be satisfied it can deliver the required outcomes.

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Procurement One of the most significant difficulties in supporting a group of employee’s initiative to set up a staff mutual is the requirement to carry out a competitive tender before awarding a contract. If the new company is reliant on the authority for a contract, it will need to bid alongside its competitors and win the work.

However, this presents a number of difficulties for the authority, notably: • The lack of track record of the new company which may not even be incorporated and therefore may be entirely reliant on financial forecasts and the collective experience of the employees transferring to the new company. An authority may therefore consider tailoring its usual procurement process to strip out any unnecessary requirements, taking account of the risk of the new company failing, that may impact on the new company’s ability to submit a tender.

• Managing a procurement process alongside a project to establish the new company. For example, it is likely that the individuals with the best knowledge of the in-house service will be the ones most engaged in setting up the new company (and intending to transfer to it) whose expertise would also be called upon when designing an outsourcing.

• Supporting the staff in the creation of the new entity which may fall at the first hurdle if it does not win the contract. However this raises questions as to how much an authority should invest on this speculative outcome.

• Managing employee engagement when the outcome of the procurement process is unknown. The employees may find themselves owners of a business they can shape and grow, or they may simply TUPE transfer to a large provider of outsourced services.

The procurement risk may therefore actively prevent employees from exercising the CRC if they prefer to remain working in-house than risk transferring to an unknown provider.

But does the authority have to go out to tender? Not necessarily. If the contract is for a Part B service, including most health, social, educational and recreational services, the authority is only obliged to advertise it if it is of cross border interest. Low value services which do not attract bidders from outside the area are likely to fall outside the procurement rules and enable the authority to directly award the contract to the staff-owned enterprise. However, authorities may be reluctant to consider this option due to the perceived risk of challenge.

New procurement directive: exception from rules for staff mutuals The new procurement directive contains a provision which enables contracting authorities to restrict access to tendering processes for certain health, social care and recreational services to staff mutual organisations with a public service mission (Article 77). Such contracts must not exceed a term of 3 years.

It is unclear exactly what corporate structure is required to fall within this exemption.

The new directive is likely to be in force in the spring of 2014. Member states will have 24 months to implement them into national law but the UK government is aiming for early transposition.

State aid Setting up a new company is resource-intensive (see Box, What support will the new enterprise need?). To what extent should the authority bear these costs and then provide on-going support to the new entity?

Public bodies are prevented from providing support to private companies in breach of the laws against state aid, a central plank of the European common market. The four characteristics of state aid are: • State aid is granted through state resources.

• State aid favours certain undertakings, or the production of certain goods.

• State aid distorts competition (or threatens to do so).

• State aid affects trade between member states.

State aid may arise where a public body provides financial support or other advantages, such as access to premises or services at below market rate, or even guarantees against losses or liabilities.

Where a company is spun out from a local authority, it is likely to need such support. There will be no unlawful state aid if the package of support is included in a procurement process which is advertised and open to bidders from other member states. Therefore, it is more of a risk where the authority has decided to directly award the contract.

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There is an argument that if the authority has determined there is no cross border interest in the contract, it is unlikely that the support will fall foul of the rules against state aid as it won’t affect trade between member states. However, while that decision is taken at a point in time, if the market changes, the authority remains at risk of a claim in respect of past state aid if the entity is still benefitting from that aid.

What support will the new staff mutual need?

The local authority will be called upon to provide a wide range of support to the fledging staff mutual enterprise. The costs of providing such support can be considerable, both financially and in terms of staff time. It may therefore wish to devise a policy setting out the extent of the resources it is prepared to commit to support such initiatives.

Before the transfer The following resources are likely to be required at the outset of a staff mutual project: • Political engagement to gain support for the project, and to determine the extent of that support.

• Business analysis input to create a business case for the new entity.

• Legal work, including advice on the options for the legal form of the new entity and company formation.

• Financial advice on the cost to the authority of providing the service in-house. This information will inform the assessment of the costs of running the new entity, and of the price the authority can expect to pay for an outsourced service.

• HR resource for employee engagement.

• Property management and/or IT resource to determine the implications of the new entity in terms of the authority’s assets.

• Procurement resource if the support for the staff mutual triggers a procurement exercise.

• Communications and service user engagement to explain the change in service provider to end users.

After the transfer • Client side resource to manage the contract. This may be intense given that the new entity will initially be feeling its way as the employees get to grips with running a business as well as delivering a service.

• Financial or other support, if any has been agreed outside the contract.

• Account management function if the new entity buys back services from the authority, for example, HR, payroll or IT services.

Staffing issues A local authority considering externalising a service will also be faced with a number of employment-related issues, for example: • Arranging a TUPE transfer to an organisation which does not yet exist.

• Determining the correct approach to dealing with pensions.

• Managing communications with staff, probably at the same time the more detailed business plans for the new organisation are being developed.

• Determining or assisting in the determination of the structure of the new entity and the role the transferring staff will play in governance.

If the transfer is a TUPE transfer, the staff will transfer on their existing terms and conditions. This may mean the new entity is not as free to innovate as it might wish to be, though changes to TUPE introduced in January 2014 may make variations to employment contracts related to a TUPE transfer easier to effect.

However, the establishment of a new entity does not automatically mean that TUPE will apply. For example, even if there will be a contract to provide services between the new entity and the authority, unless the conditions for a “service provision change” under TUPE apply, the employees may remain with the authority.

In these circumstances, the authority may agree with the new entity to treat the arrangement as if TUPE applied. However, if the employees are not keen to go, that creates its own risks.

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Pensions If there is a contract with the authority and TUPE applies, the authority will be obliged, under the Best Value Authorities Staff Transfer (Pensions) Direction 2007 to ensure the new entity: • Is admitted to the LGPS enabling the employees to remain members of that scheme.

• Offers the employees access to a pension scheme which is broadly comparable to the LGPS. Both options carry risks. Participation in the LGPS is expensive and will be beyond the means of the new entity. It is likely that the new entity will apply for admission to the local LGPS fund. Employees are likely to want this too. But the administrating authority to the fund is obliged to ensure the fund is protected if the entity cannot meet its obligations. It will want a bond, which is very expensive, or a guarantee. The sponsoring authority will, in any event, be on the hook in the event that the new entity cannot meet its obligations to the fund.

Under this model, the new entity remains an employer in the fund, and its employees active members of that fund, only so long as it has a contract with the authority.

But what if there is no contract between the authority and the new entity? The 2007 Direction does not apply to business transfers without an outsourcing. The employees therefore face losing their membership of the LGPS in favour of a scheme which can, lawfully, offer benefits which are far less favourable.

An alternative, if the new entity is not for profit, is for the new entity to obtain admission to the fund if it can demonstrate it has the necessary “community of interest” with the local authority. Under this option, the employees can remain members of the LGPS for so long as their employer remains in the scheme; they would not have to leave if the new entity failed to renew its contract with the authority.

Under the revised Fair Deal policy, which requires central government, the NHS and schools to ensure pension protection for transferring staff, the requirements apply equally to new employee-led organisations irrespective of whether there is a contract. New employers, whether profit-driven or otherwise, who receive former public sector staff, will be able to access the other public-sector schemes.

Authority’s relationship with the new staff mutual Where a local authority is ceasing to provide a service and it is being taken on by a staff mutual to run on a commercial basis, the local authority is less invested in its success. It may therefore offer no or minimal initial and ongoing support.

However, where the staff mutual will be taking on a service that is commissioned by the authority, it is likely to be entirely reliant on the authority, at least initially, for its income. The risk of insolvency is therefore likely to be relatively high. The business will also lack resilience, unless and until it can build resources and secure other contracts.

The authority may therefore require, or itself provide, certain guarantees, for example, to the pension fund. It should also ensure that any assets it makes available to the staff mutual return to the authority in the event of insolvency, for example, by leasing premises and licensing rights, instead of transferring them to ensure they aren’t swallowed up on liquidation.

Finally, the authority must ensure it retains a client side function, which can be tricky if everyone involved in the service is leaving to join to new mutual. The contract management function will be key, especially in the staff mutual’s first years of operation n

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Interview

with Rebekah Straughan Could you start by telling us about your current responsibilities?

My job title is in a state of flux—the Council is undertaking a reorganisation, after which my job may be referred to as a Housing and Litigation lawyer, as my primary areas of expertise are housing and civil litigation.

A central part of my work involves negotiating for an ALMO, and anything from rent arrears to anti-social behaviour can come from them. I also receive other civil work directly from the Council— planning and Section 222 injunctions in particular. And there’s the odd prosecution thrown in too as it’s always good to be varied!

How did you come to be in the job that you are in?

I joined the Legal Department as an admin assistant and worked my way up. I wasn’t initially interested in a career in law, but as I gained more experience the option was suggested to me, and I started to study. I continued to work full-time for the Council, and finally qualified four years ago, after about five years.

Interview first published in the February edition of the Public Law Partnership Newsletter.

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I came to specialise in Housing because that was where the opportunity arose.

They were looking for somebody to go to court on rent arrears cases and suggested that my personality might suit it! I enjoyed the work and it just grew from there. It was a natural, organic thing that just evolved as I was lucky enough to be able to move where my talents lay and have managerial support to be able to do that.

What is it about your personality that suits Court work?

I think I’m probably a performer. And I’m good at switching between different personalities. You need to be able to communicate with the Judge but also just as well with a defendant in person, who’s inevitably stressed by their situation. Local authority work is very people focused.

Putting personalities to what were just defendants on paper is what keeps me interested.

Do you have any tips for dealing with a defendant in person?

My top tip would be to simplify and clarify.

Without sounding condescending, it’s important to explain things as clearly as possible and not come over too highhanded. You need to imagine yourself in their situation so you can get on an even keel and have a reasonable conversation.

It’s unlikely you’ll get anywhere if you’re at loggerheads with each other.

Could you talk us through a typical working day?

Well that depends on what you class as typical! I find I’m in Court two or three times a week. Days in court are often full days. This Tuesday, for example, I arrived at 9:30am to assist a witness in swearing an affidavit. Someone had breached an injunction we had brought against them, and an affidavit was needed so we could move on to a contempt of court action. I had a chat with them about their experiences and then led them through the process. From there it was on to the

Listings for the day—establishing from the Court Usher who has turned up, and interviewing them to get their side of the story. I think I had six cases on Tuesday, and they stretched into the early afternoon.

Another day might involve anti-social behaviour work. I have to attend to people who can be very volatile so it’s important to approach them as reasonably as possible; if you can’t then you have to go in front of the Judge.

Days in the office are more hectic than you might think; most of the time I’ll be having impromptu meetings with clients or giving urgent advice. It’s nice to be able to get home and actually plough through the paperwork; work through what has happened in Court; build on the background; do the research; put out the advice that people are asking for. Homeworking is definitely better for that.

What do you think are the key challenges facing practitioners in your area at the moment?

In my experience, anti-social behaviour is certainly on the increase, and I think colleagues across the board would agree.

At the same time, legislative attempts to thwart it are also evolving, so keeping up-to-date can be a challenge. Developing and maintaining meaningful relationships with the police—in such a way that you are really helping each other—can also be a challenge. Certain officers are particularly helpful and go out of their way to get you everything you need. Sometimes you need to help people understand how you can help from your “civil” point of view.

Tell us more about how you maintain a good relationship with police colleagues.

I deal with them a lot. I’m lucky that my team and I have built up a good relationship with the police, and we try to go out and see them regularly, to keep them in the know about how the Council can help. Often, as they’re not trained in civil law, they may naturally not understand the extent of Local Authority power and how it can be used to support them. I think that makes a real difference. For example, I worked on a very successful case that was in the media a couple of years ago. Two brothers were causing absolute havoc in the Colchester area. They were the subject of several Anti-Social Behaviour Orders—which they completely ignored—and one or the other was always in prison. The police were literally running all around town after them, constantly playing catchup. By working together and collating all our collective evidence, we won an injunction banning them from the whole of the Borough of Colchester. It sounds draconian, but the level of nuisance they were causing was so high. That injunction has stayed in place, and all of a sudden you’ve taken a huge workload out of police hands.

Has the formation of Public Law Partnership impacted on how you or your colleagues operate?

In the early stages I don’t think we really felt any difference. Now it’s more established—now we’ve all met each

other—I’ve established relationships with professionals that I wouldn’t otherwise have spoken to. We exchange emails now asking each other for ideas or tips. I was helping Rochford recently with how to collate evidence for a 222 Injunction, and, likewise, I often ask other housing professionals how they tackle certain problems. Instead of having five people in the office, you’ve suddenly got a hundred people bouncing ideas this way and that.

Are there any areas you would like developed further in terms of collaboration between Councils?

I think it would be nice to do more work for each other and I don’t think anyone is against that; attending Court Hearings on each other’s behalf, for example. Logistically I can’t see it working very well at the moment though. It’s hard to tell where everyone is at one moment in time. I know we’ve tried Court diaries and things, but it’s very hard to maintain that kind of database without wasting valuable time inputting data into a computer.

You may as well just go to the Hearings yourself. That’s definitely something that could be improved on.

For more information about Public Law Partnership visit publiclawpartnership.co.uk or contact PLP Programme Manager, Enid Allen, at enquiries@publiclawpartnership. co.uk LOC ALG OVL AW YER .CO.UK

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REUTERS/Kim Kyung-Hoon

update from lawtel, westlaw UK and practical law case summary 1 R (on the application of MA & ORS) (Appellants) v SECRETARY OF STATE FOR WORK & PENSIONS (Respondent) & EQUALITY & HUMAN RIGHTS COMMISSION (Intervener) (2014) [2014] EWCA Civ 13 In MA, the appellants (M) appealed against the refusal of their application for judicial review of changes to the Housing Benefit Regulations 2006 introduced by the respondent secretary of state in the Housing Benefit (Amendment) Regulations 2012 and the Housing Benefit and Universal Credit (Size Criteria) (Miscellaneous Amendments) Regulations 2013. The 2012 Regulations reduced the eligible rent for the purpose of calculating housing benefit where the number of bedrooms in the property exceeded the number to which the tenant was entitled by reference to the standard criteria set out in

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reg.B13 of the 2006 Regulations.

M, who had disabilities and received housing benefit, claimed that the reduction in eligible rent discriminated against disabled persons and breached the European Convention on Human Rights 1950 art.14 read in conjunction with Protocol 1 art.1. They also alleged that the secretary of state had introduced the measures in breach of his public sector equality duty under the Equality Act 2010 s.149.

Their Lordships held that reg.B13 discriminated against disabled persons who, by reason of their disability, needed an additional bedroom. The bedroom criteria defined under-occupation by reference to the objective needs of non-disabled households, but not by reference to those of at least some disabled households. That demonstrated that reg.B13 indirectly discriminated on the grounds of disability. The central question was whether that discrimination was justified. The correct test was to ask

whether any justification advanced by the secretary of state was manifestly without reasonable foundation. That test was stringent; the question was simply whether the discrimination had an objective and reasonable justification. The court had to exercise caution before interfering with a scheme approved by Parliament. It was not sufficient to expose flaws or to conclude that the justification was not particularly convincing. The court had to be satisfied that there was a serious flaw which produced an unreasonable discriminatory effect. The secretary of state had explained why he had structured the scheme in the way that he had. In particular, he had explained why he had decided to provide for the disability-related needs of some persons by means of housing benefit under the 2012 Regulations, and those of others by way of discretionary housing payments. In combination, his reasons were far from irrational. His reasoning amounted to objective and reasonable justification. The secretary of state had paid due regard to the relevant considerations

under the public sector equality duty. It was insufficient for a decision-maker to have a vague awareness of his legal duties; he had to have a focused awareness of each of his s.149 duties and their potential impact on the relevant group of disabled persons.

In the instant case, there was no practical difference between what the various duties required, even though they were expressed in conceptually distinct terms.

The evolution of the policy showed that the secretary of state had understood that there were some disabled persons who, by reason of their disabilities, needed more space than was deemed to be required by their non-disabled peers. The question of how that should be accommodated had been the subject of wide consultation and studied in great detail. It was obvious that the secretary of state had been aware of the serious impact the bedroom criteria would have on disabled persons, and he had devoted a great deal of time to seeking a solution.

case summary 2 (1) DAWS HILL NEIGHBOURHOOD FORUM (2) STUART ARMSTRONG (3) ANGUS LAIDLAW (Appellants) v WYCOMBE DISTRICT COUNCIL (Respondent) & (1) SECRETARY OF STATE FOR COMMUNITIES & LOCAL GOVERNMENT (2) TAYLOR WIMPEY UK LTD (Interested Parties) (2014) [2014] EWCA Civ 228 In Daws Hill, the appellant neighbourhood forum (F) appealed against the refusal of its application for judicial review of the respondent local authority’s decision to designate to it, pursuant to the Town and Country Planning Act 1990 s.61G, as inserted by the Localism Act 2011, a neighbourhood area smaller than that which it had applied for. The area applied for had included two strategic sites. The local authority concluded that the area was not appropriate to be designated as a neighbourhood area, but

designated part of the area, excluding the strategic sites, as a neighbourhood area. F appealed, claiming that the local authority had frustrated the purposes of the 2011 Act. F submitted that s.61G did not confer a discretion to decide whether an area should or should not be designated as a neighbourhood area; rather, it was confined to deciding within which neighbourhood area any given site was to be included. It further submitted that if only some of a specified area was designated, any “relevant body” could make a further application specifying that the excluded area should be designated as a neighbourhood area, and by virtue of s.61G(5), the local authority would have to use its power of designation to secure that part or all of that area was so designated.

Their Lordships held that the language of s.61G did not support a limitation on a local authority’s discretion. Subsections (1) and (5) described the designation function as a power, not a duty. On the face of it, a power to decide whether a specified area was “an appropriate area” to be designated as a neighbourhood area necessarily conferred a broad discretion. Section 61G(5) did not require that, following refusal of an application, a local authority had to exercise its discretion so as to secure that all of the specified area formed part of an area that was, or was to be designated as, a neighbourhood area. The use of “some or all of the specified area” as opposed to “all of the specified area” indicated that that was not Parliament’s intention. Parliament had clearly envisaged that a local authority might exercise the power so as to designate a smaller area, leaving part or parts of the specified area outwith any neighbourhood area. F’s submission failed to recognise the discretion in s.61F(5) that a local authority “may” designate an organisation or body as a neighbourhood forum. Section 61F and s.61G were inextricably linked.

There could not be a neighbourhood area without a neighbourhood forum, and vice versa. Parliament had clearly envisaged repeat applications for designation as a neighbourhood area, but it would be surprising if it had intended that a lawful decision that the whole of an area was not appropriate could be circumvented by the simple expedient of a further application

being made in respect of the excluded area, and then repetition of that process as often as necessary to eventually secure the designation of the whole of the original area. If a repeat application was made by an organisation or body which passed the capability threshold in s.61G(2)(a) in respect of a previously considered area, the local authority would be entitled to refuse the application for neighbourhood forum designation under s.61F(5), and that would sufficiently dispose of the repeat application. It did not follow that a repeat application would automatically be refused: circumstances could change which might justify a fresh application.

Whatever the precise extent of the power in s.61F(5), it was sufficiently broad to enable local planning authorities to refuse repeat applications such as those suggested by F, which would in other contexts be described as an abuse of process.

legislation update 2014 c.2 (NI) LOCAL GOVERNMENT, PENSIONS – NORTHERN IRELAND Public Services Pensions Act (Northern Ireland) 2014 Royal Assent: March 11, 2014 An Act to make provision for public service pension schemes and for connected services.

2014 c.12 LOCAL GOVERNMENT, POLICE - UK Anti-Social Behaviour, Crime and Policing Act 2014 Royal Assent: March 13, 2013 An Act to make provision about anti-social behaviour, crime and disorder, including provision about recovery of possession of dwelling-houses; to make provision amending the Dangerous Dogs Act 1991, the Police Act 1997, Terrorism Act 2000, Schs 7 and 8, the Extradition Act 2003 and Police Reform and Social Responsibility Act 2011, Part 3; to make provision about firearms, about sexual harm and violence and about forced marriage; to make provision about the police, the Independent LOC ALG OVL AW YER .CO.UK

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Police Complaints Commission and the Serious Fraud Office; to make provision about invalid travel documents; to make provision about criminal justice and court fees; and for connected purposes.

2014 c.6 LOCAL GOVERNMENT, ENGLAND AND WALES Children and Families Act 2014 Royal Assent: March 13, 2014 An Act to make provision about children, families, and people with special educational needs or disabilities; to make provision about the right to request flexible working; and for connected purposes.

SSI 2014/25

Mobile homes: guidance on enforcement of site licence conditions and site licensing fees The Mobile Homes Act 2013 makes significant changes to the law on mobile homes. A new licensing scheme is coming into force on 1 April 2014 that changes the procedures and penalties for enforcement of site licence conditions on residential parks. The new scheme will enable local authorities to monitor site licence compliance more effectively by providing authorities with the tools to take enforcement action where owners are not managing and maintaining their sites and its services. Local authorities will be able to charge fees for:

LOCAL GOVERNMENT – SCOTLAND

• Considering applications for the issue or transfer of a site licence.

The Self-directed Support (Direct Payments) (Scotland) Regulations 2014

• Considering applications for altering conditions in a site licence.

In Force: April 1, 2014

• Administration and monitoring of site licences.

These Regulations are made under the Social Care (Self-directed Support) (Scotland) Act 2013, s.15 and make further provision about direct payments.

• Guidance for local authorities on matters that can and cannot be taken into account in setting fees, setting fee structures and how fees are to be calculated.

Sources: DCLG: Mobile Homes Act 2013: A Guide for Local Authorities on setting site licensing fees (February 2014) (https://www.gov.uk/ government/publications/mobile-homesact-2013-a-guide-for-local-authorities-onsetting-licence-fees) DCLG: Mobile Homes Act 2013: New licensing enforcement tools - Advice for Park Home Site Owners (February 2014) (https://www.gov.uk/government/ publications/mobile-homes-act-2013-newlicensing-enforcement-tools-a-guide-forpark-home-site-owners). n

The Department for Communities and Local Government (DCLG) has published: • Guidance for site owners that provides useful information on the new licensing powers of local authorities.

PUBLIC LAW

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• Regulatory stability and the challenges of reregulation • British policy on the recognition of governments • Judicial accountability: a taxonomy • Lessons learned from political constitutionalism?

Comparing the enactment of control orders and terrorism prevention and investigation measures by the UK Parliament • A damp squib? The impact of section 6 HRA on the common law: horizontal effect and beyond

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AUDIT & ACCOUNTABILITY Andrew Arden QC Barrister of Arden Chambers, London, Editor of Local Government Finance: Law and Practice, Co-author Local Government Constitutional and Administrative Law.

Leaving aside minor amendments, the Local Audit and Accountability Act 2014, which received Royal Assent on January 30, contains three measures two of which fly under the flag of convenience entitled localism (local audit and referendums by levying bodies) while the third (adherence to publicity code) is amongst the more egregious central controls to darken the local government skies. There is not the space in this article to describe these provisions in detail, but their more salient features merit attention.

Publicity To address these in reverse order, Local Government Act 1986, s.4, allows the Secretary of State to issue codes of conduct governing local government publicity, covering such matters as content, style, distribution and cost: authorities must have regard to the code when reaching their decisions on publicity. In accordance with normal principles, an authority can only be challenged for failure to have regard to a code, not for a decision (otherwise legitimate) not to follow it.

By s.39 of the 2014 Act, two new sections are introduced into the 1986 Act. New s.4A allows the Secretary of State to direct an authority to comply with the whole or part of the code; the direction may specify the steps which an authority must take the comply with

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UPDATE AUDIT & ACCOUNTABILITY FROM LAWTEL AND WESTLAW UK

it and a time within which it must do so.

The direction may be given whether or not the Secretary of State considers that the authority is complying with the code, but the authority must be given 14 days prior notice in writing during which the authority may make written representations about the proposed direction. The Secretary of State may withdraw or modify the notice, likewise on notice. New s.4B allows the Secretary of State to achieve the same effect by order (following affirmative procedure) imposing a duty to follow the whole or part of the code on all authorities, or all authorities of a particular description, including an obligation to take steps within a stated time and again regardless of whether he thinks that authorities affected by the order are in fact following the code. The duty to have regard to the code remains.

Unsurprisingly, this wide-ranging power generated considerable opposition from local government; the LGA issued a series of briefings expressing concern both about its application and the risk of challenge, not only by the Secretary of State but also by third parties: for example, the question was raised whether an authority opposing - perhaps by proceedings - HS2 could be prevented from issuing publicity about its stance and the reasons for it; the same could be true of airport expansion. The briefings made the point that “Central government should not be imposing arbitrary limits on how a democratically elected council communicates with its residents”; nor was a “14-day notice period that includes both working and nonworking days...enough time for an authority to make...representations on what are likely to be complex and potentially controversial matters”.

Referendums and Levying Bodies There was similar opposition to the proposal, now embodied in s.41, to extend the council tax referendum provisions to include such levying bodies as Waste Disposal Authorities, Integrated Transport Authorities, Pension Authorities and Internal Drainage Boards, i.e. their levies will now be included in the calculation of excessive increase which requires a referendum (under Local Government Finance Act 1992, Chapter IVZA). While

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the billing authority is itself bound by the outcome of a referendum, the levying bodies will not be, i.e. if a referendum increases council tax on account of the levy in question, council tax cannot go up to accommodate it but the levy need not be reduced.

The reason for the latter lies in the proposition - well made in the LGA briefings, e.g. in relation to pension funds - that the levying body may not be in a position to control the increase, which may flow from a revaluation of the pension fund or, e.g., EC environmental health requirements applied to waste disposal or the need for flood defences.

To accommodate these changes, therefore, the council tax authority will have to identify savings, probably in wholly unrelated activities, described as “a significant threat to both local government’s financial stability and infrastructure investment”.

Of particular concern here, the provisions allow the Secretary of State to revert to financial years 2013-14 and 2014-15 and reissue the principles governing what comprises an excessive increase as if the amended provisions - including these levies - had been in force at the time, i.e. authorities which might otherwise not have to hold a referendum by reference to their own spending decisions (as currently) may find themselves needing to do as a result of levies (over which they had no control) applied in the past (at which time they were not taken into account).

This sort of retrospective legislation with a financial impact would probably be challengeable, even if contained in an Act of Parliament, were it possible to pray a Convention right in aid: there is, of course, no such possibility under domestic public law and the authorities cannot themselves rely on Convention rights. It is in principle possible to challenge the rationality of the principles themselves, but very difficult indeed to the point that the prospect is close to illusory (cf. R. v.

Secretary of State for the Environment, ex p. Nottinghamshire CC [1986] Ac 240, HL R. v. Secretary of State for the Environment, ex p. Hammersmith & Fulham LBC [1991] 1 AC 521, HL).

Audit The overarching principles of the 2014 Act, so far as concerns audit, are said to be (Future of Local Public Audit, Consultation, March 2011) “localism and decentralisation – freeing up local public bodies, subject to appropriate safeguards, to appoint their own independent external auditors from a more competitive and open market, while ensuring a proportionate approach for smaller bodies “transparency – ensuring that the results of audit work are easily accessible to the public, helping local people to hold councils and other local public bodies to account for local spending decisions “lower audit fees – achieving a reduction in the overall cost of audit “high standards of auditing – ensuring that there is effective and transparent regulation of public audit, and conformity to the principles of public audit”.

AUDIT & ACCOUNTABILITY

It is abolition of the Commission and its employed auditors which is at the heart of the provisions: the audit process itself is largely unchanged, with the familiar criteria (compliance with the statutory requirements, proper accounting practices presenting a true and fair view, and proper arrangements for securing economy, efficiency and effectiveness in the use of resources - s.20) applicable to, and the familiar activities involved in, external audit all remaining, e.g. annual statements of account and audit (ss.3, 4), public interest reports (s.24 and Sch.7, declarations that an amount is contrary to law (s.28), advisory notices (s.19 and Sch.8), power to seek judicial review (s.31), inspection and questions by persons interested (s.26) and objections by local electors - save for a new power to reject an objection which the auditor considers is frivolous or vexatious, or the cost of considering which would be disproportionate to the amount to which the objection relates (unless the auditor consider that the auditor thinks the objection might disclose serious concerns about how the authority is managed or led), or which repeats an objection already considered (s.27).

The Act finally abolishes the Audit Commission, which has been winding down for some time: s.1. The employed district audit service (as it continued to be known until 2002) was dispersed to the private sector, having been maintained centrally since 1888 (district audit itself dating from 1844). Following a procurement exercise by the Commission, four private firms were awarded the work and, in November 2012, approximately 700 auditors transferred to new, private-sector employers.

The theory is that abolition will open up competition in this lucrative market, by entitling - but therefore requiring authorities to select a private sector auditor under a regime in which the Financial Reporting Council will serve as ultimate regulator and - it is expected - will in turn authorise the professional accountancy bodies, private as well as CIPFA, to serve as supervisors. The Comptroller and Auditor General will now have responsibility for issuing Codes of Audit practice, to be laid before Parliament (with a saving of current Codes pending the issue of new ones) (s.19 and Sch.6).

The provisions are to be modified in relation to “smaller authorities” (meaning those with expenditure below - unless and until changed by regulations - £6.5m): ss.5, 6.

Subject to amounts, appointment will give rise to procurement issues (and additional cost). In a rare victory for the LGA, provision was added during passage of the Bill to allow for a voluntary, national procurement exercise for the appointment of local authority auditors, i.e. “sector-led collective procurement arrangements, under which relevant authorities would be able to opt to have their auditor appointed by a specified sector-led body, rather than appoint locally” (Explanatory Notes to the 2014 Act).

One may be forgiven for viewing all of this not as an act of localism but of privatisation. As an LGA briefing made clear: “Local appointment does not necessarily increase competition and access to the audit market. This is because the main barrier to entry for small firms is being able to demonstrate the expertise and

public sector knowledge that is required to audit local authorities. They are complex entities and very different to private sector organisations.

“The claim that local appointment is more likely to increase competition does not fit with the experience of audit procurement. Nor does it fit with the experience of individual body procurement in the Foundation Trust audit market, where fewer suppliers than in the local government market provide audit services, and no small firms have succeeded in winning work. FTI Consulting’s report to the Department for Communities and Local Government (DCLG) argued that...using a local choice model would lead to a ‘consolidation as big players pick up contracts and market concentration goes back up’. So this independent analysis verifies that local choice is unlikely to lead to a greater number of organisations entering into the audit market.

“The eligibility criteria developed by the Financial Reporting Council [are] rigorous. Those firms wishing to comply with regulatory requirements and compete for local authority audit need to maintain significant investment to ensure that they have the required capabilities.

There are currently seven audit firms carrying out local government audit work. In the recent tendering exercise carried out by the Audit Commission, no small firms [were] able to meet the standards required”.

Nor is there any basis for anticipating a more rigorous approach to audit than that which has long been available from district audit: company auditors have hardly acquired universal respect for their control and exposure of the worst excesses the corporate world has had to offer in recent years.

Nor indeed does privatisation denote an increase in the independence which audit calls for: proposals to allow new local government bodies to appoint their own auditors (an historical right some authorities continued to enjoy into the mid-1900s) have been met by concern for independence since the mid-1800s (see the discussion of the Elementary Education Act 1870 in Local Government Audit Law,

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Jones, 2nd. Edn, 1985, HMSO, para.1.20), in the face of opposition to a public sector service mounted by the accountancy associations, e.g. in the 1950s and 1960s see Jones at paras 1.38, 1.40.

Even where a choice could be made, the public sector was the auditor of choice.

Thus, following the Local Government Act 1972 and its application to water authorities under the Water Act 1973 “Of the 467 principal councils and water authorities thus enabled to make a choice of auditor, 425 chose the district auditor, and 32 an approved auditor of some or all their accounts. The district auditor was appointed to audit all but 22 out of about 8,000 parish and community authorities.

Overall, the district audit share of the workload increased from about 83% of all local government transactions before reorganisation to about 95% afterwards” (Jones, para.1.45).

In 1976, the Layfield Committee of Inquiry into Local Government Finance considered choice of auditor “wrong in principle” (Jones, para.1.47), which led to the Local Government Finance Act 1982, Part 3 of which established the Audit Commission, pursuant to which auditors were appointed by the Commission albeit following consultation. Auditors could be either employed auditors or private accountants: in practice, some 70% of appointments were in-house.

The need for independence did not go unacknowledged. Authorities will now have to maintain - in addition to the separate Audit Committee that many already choose to have - a discrete Audit Panel, of which the chair and a majority of the members must be independent (as defined) - see s.9 and Sch.4; the panel must advise the authority on the selection of auditors, any proposed liability limitations, the maintenance of an independent relationship, and - to be prescribed in regulations - steps in relation to resignation or removal of auditor: advice will need to be published (see ss.10, 11, 15, 16).

Authorities will need to consider the advice of their Audit Panels, but will not be bound to conform to it, although may be required to publish a statement of reasons for departing from it; regulations will also afford detailed steps applicable

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to resignation and removal, designed to secure transparency and independence.

It is intended to limit appointments to a maximum five-year term and 10 years in all.

Subject to some safeguards (including a maximum amount), firms will, however, be able to undertake non-audit work for their authorities.

As for qualification to conduct a local audit, this is governed - to the extent that the Act does not leave it to regulation - by s.18 and Sch.5, which in turn operates largely by amendment of the Companies Act 2006, subject to some discrete provisions (e.g. defining independence) and with substantive powers conferred on the Secretary of State: the intention is that the Financial Reporting Council will become the overall supervisor to which many of those powers will be delegated; in turn, it will authorise the existing accountancy bodies to act as supervisors with responsibilities for qualifications and technical standards, and to monitor and investigate local audits, consider complaints, and include or exclude bodies from a register of local auditors from whom authorities would be obliged to select their own. While these provisions are, of course, of great importance, not only does much remain yet to be decided but they are not issues likely - at least in the near future - to concern local authority lawyers, so much as accountancy professionals.

Conclusion This has been not so much a bird’s eye view of some of the new provisions as a snapshot from outer space. The fundamental and underlying issue is that of independence in audit. True, there are provisions which define and seek to safeguard independence and they are not to be brushed aside; nonetheless, independence is far more an issue of practice than it is of regulation.

External auditors employed by the Audit Commission may not always have been popular, and they may at times have seemed to follow a central - even policy - line on some issues that gave rise to concerns about independence from a somewhat different perspective, but their independence from the body being audited has never been in doubt.

One reason for this - history and careful appointment aside - has been the lack of

even a latent interest in securing an award of either additional (non-audit) work from an authority or (more pertinently) further audit work from that authority or from others (i.e. “reputational issues”). How true that will be where a small number of firms is chasing a vast body of work, being turned around at the least every 10 years but often more frequently, may yet need to be proven nor can be taken for granted n

PROFILE

Andrew Arden QC

Andrew Arden QC is a Barrister of Arden Chambers, London, Editor of Local Government Finance: Law and Practice, Co-author of Local Government Constitutional and Administrative Law.

We last spoke with you in 2007. What have been some of the key changes within local government law since then? a) Generally • Coalition government’s “localism” agenda of which the introduction of a general power of competence is the most significant constitutional change • The development of an ever-widening gap between provisions in England and Wales; now two different systems • Changes to executive structures • Delegation powers to individual members • In most areas of local government services there is frequent policy and statutory change – e.g. housing, planning, education b) Human Rights & Housing • The effect of the Human Rights Act 1998 continues to be felt, but merits a particular mention in relation to housing, where the early resistance of the House of Lords to a specific or discrete “proportionality” defence - meaning that the court has to determine the proportionality of an eviction for itself, regardless of domestic

law - was set aside in Manchester CC v. Pinnock [2010] UKSC 45 & [2011] UKSC 6; [2011] 2 A.C. 104; [2011] H.L.R. 7 and Hounslow LBC v Powell; Leeds CC v Hall; Birmingham CC v Frisby [2011] UKSC 8; [2011] 2 A.C. 186; [2011] H.L.R. 23. c) Localism Act 2011 • Part 5, 2011 Act, introduction of referendums for “excessive” council tax increases in England • Abolition of housing revenue account subsidy in England and the move to ‘self-financing’ • Amendment of the Business Rate Supplements Act 2009 introducing the mandatory requirement of a ballot where a BRS is proposed or an existing BRS varied • Widening of the local authority’s power to grant discretionary relief from National Non-Domestic Rates • Introduction of a new scheme for Small Business Relief d) Local Government Finance Act 2012 • Introduction of ‘Local retention of non-domestic rates scheme’ – broadly, a scheme under which a local authority can retain a proportion of NNDR (“the local share”) for their area

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• Introduction of Council Tax reduction scheme: abolition of council tax benefit; abolition of a national scheme of discounts for specified groups, replaced by a local scheme determined by each billing authority e) Public Service Pensions Act 2013 • Introducing provision for new schemes to replace final salary pension schemes in the public sector, including local government, with career average pension schemes f) Local Audit and Accountability Act 2014 • Abolition of the Audit Commission and repeal of the Audit Commission Act 1998 to be replaced by a “local auditor” appointed by the authority g) Series of amendments to existing SIs: examples include • Measures introduced to Capital Finance Regulations to assist with the fallout from the banking crisis, particularly local authorities which had investments in Icelandic banks • measures to take account of new practices, e.g. rating the use of securitisation transactions What are the recent developments which have affected the contents of Local Government Finance? a) Localism Act 2011, Local Government Finance Act 2012, Public Service Pensions Act 2013, Local Audit and Accountability Act 2014 • Please see above for all of these, which directly impact on LGF contents • So also, the widening gap between English and Welsh provision referred to in (a), above b) Other • Measures introduced to Capital Finance Regulations to assist with the fallout from the banking as above • measures to take account of new practices, as above • In addition, there are changes to internal audit practice resulting from the adoption & application of the Chartered Institute of Internal Auditors International Standards to the UK Public Sector (including local government)

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What are the key challenges that face local government practitioners?

• Managing in the age of austerity: how to “balance the books” and do so lawfully.

See, e.g., Regina (Attfield) v Barnet LBC [2013] EWHC 2089 (Admin); [2013] P.T.S.R. 1559 where the authority fell foul of a challenge to increased charges for residents’ parking permits and visitors’ vouchers in controlled parking zones under s.45 of the Road Traffic Regulation Act 1984: it was held that the authority’s purpose in increasing the charges was to generate a surplus to defray other road transport expenditure and reduce the need to raise income from other sources, such as fines, charges and council tax, which was not a purpose properly authorised under the 1984 Act, so that the authority’s decision to increase charges was unlawful • Adapting to new (constantly changing) legislative provision – see, for example, the changes to the standards regime by the Localism Act • Challenges to budgets, or specific items in budgets, by way of Public Sector Equality Duty under s.149, EA 2010. Particularly difficult in a period of retrenchment. See, e.g., R (W) v Birmingham CC [2011] EWHC 1147 (Admin) (social care), in which - while faulted on one aspect of consultation - Birmingham successfully defended an attempt to have its whole budget declared void (in consequence of the error) Why did you choose to specialise in housing and local government law?

In 1974, when I began practice, there was a crying need for practitioners to defend tenants and represent the homeless, with the burgeoning law centre movement, increased awareness of legal aid, increased security of tenure, increased awareness of the effect of bad housing conditions, increased homelessness, etc. Yet the law was spread around a number of areas and had to be dug out of texts with a very different focus from that of most people.

I and others therefore began to develop a concept of, or perspective known as, housing law, designed both to fulfil the demand but also to encourage the courts

(and others) to see housing cases in their own light.

My work in housing led me into local government work, particularly as a result of a couple of quite high profile local government inquiries in the early and mid-1980s (for the GLC into housing associations and for Hackney initially into freemasonry but which became an inquiry into the institutional deficiencies of the authority; there was also an inquiry into improvement grant funding in Bristol). The first of these brought me into contact with two people who became very close friends and the most major influences on my life (professionally and personally), the late John Fitzpatrick, the last Solicitor to the GLC, and the late Maurice Stonefrost, then Comptroller of Finance, later Director-General and last chief officer of the GLC (who wrote the Foreword to Local Government Finance: Law and Practice), which meant that, while my initial orientation had been towards what might be called “housing defence” work (defending tenants, advocating for the homeless), I began also to be aware of the extent to which local government could and did (and does - despite all the pressures on it) make an invaluable, imaginative and constructive improvement to the community, including its most dispossessed members, i.e. I stopped seeing it - as I had tended to at the beginning of my practice - as “enemy” but as an important and irreplaceable ally. In recent years, there has been a tendency to see me as working primarily for local authorities: actually, I try to keep a balance and continue to work both for authorities and for tenants/homeless.

What’s the most interesting case you’ve recently been involved with?

This was probably the Chase Farm Hospital closure of A&E and Maternity Unit, which Enfield LBC (for whom I acted) had opposed for many years, in light of the considerable under-provision of primary health care in their area, pursuing every possible avenue before seeking judicial review: we were unable to get permission, although the judgment fails to address most of the material evidencing promises made which had plainly not been kept before the closures took place. I was also in the human rights and housing cases

(above and in the ones they replaced) and the Birmingham (social care) case. Two cases for Leeds were also very interesting: R (Technoprint Plc) v Leeds CC [2009] EWCA 3220 (QB) (on amendment of constitution) and Mears v Leeds CC [2011] EWHC 40 (QB); [2011] B.L.R. 155; [2011] EWHC 1031 (TCC); [2011] Eu LR 764 (on procurement).

How do you manage to juggle your writing with your day-to-day work?

Nowadays, I have a lot of assistance from colleagues in Arden Chambers in the writing work as well as practice: on my regular writing work - loose leafs, law reports - there are eight or nine people who work with me, so that - while I review (and revise) everything - the most time-consuming basic task of pulling the material together - whether the background, facts and law for a law report or the background and details of new legislative materials - has been done for me in draft.

Take us through a day in the life of Andrew Arden QC I am a practising barrister! There is no typical day in my life! It depends on what I am doing and where: it might be written advisory work in chambers, or a consultation either in chambers or at the offices of a local authority, or a case in court, which normally today for me means the Court of Appeal or the Supreme Court but can mean the High Court or even on occasion the county court or a tribunal. Each of the courts is very, very different in terms of location, preparation, presentation and makes different demands with different impacts on me and my day.

I am most usually in Chambers, which is close to my home, so I can get in or go back within 10-15 minutes (by motorbike); once home, I rarely work in the evenings though often during the weekends.

glass of wine (or two!), in the winter in front of the fire or in the summer in a covered area of our garden, just chatting, maybe listening to music (from opera to C&W through some jazz, some classical, some modern). Our daughter is a musician, just finishing her degree at the Royal College of Music, and living back at home (for what has become “the usual reason”), and sometimes spends time with us but never plays for us at home, though we go to as many of her concerts as possible. The rest of the evening is like most others: a bit of TV, a bit of reading, it’s surprising how tiredness creeps up and sends us to bed! n

How do you relax in your spare time?

Quietly; I’m a real homebody. I usually spend an hour or two with my wife and a

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THOMSON REUTERS PROVIEW™ THE PROFESSIONAL-GRADE app NAVIGATE TO SPECIFIC WORDS, PHRASES, CASES AND MORE

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In 2011 Thomson Reuters launched ProViewTM our e-reader platform that lets customers work with eBooks on their iPad, Android tablet, Windows PC and Mac. In Legal UK and Ireland, there are now around 40 eBooks available to download and that number is increasing all the time.

ProView is evolving with new features all the time. We caught up with Chris Hendry, Head of Advanced Media, Legal UK & Ireland, to discuss ProView and how the service can benefit local government legal professionals.

Could you tell me about the Thomson Reuters ProView app and some of its key features?

Thomson Reuters ProView is a professional grade eBook platform which has been designed specifically to meet the eBook needs of lawyers. The platform is free and supports many time saving features which are unique to our eBooks. Not only can you bookmark pages and highlight passages, you can also create notes which you can organise and label. You can

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TAKE CONTENT INTO OTHER APPLICATIONS

even transfer those notes to subsequent editions and be confident that they’ll never be lost because we automatically back them up in the Cloud. Navigation is simple; you can search across your library, jump through your viewing history or link from index and table of contents. You can even create a PDF of a section which can be saved, printed or emailed.

Whether you use an iPad, an Android tablet or your computer, ProView allows you to access your eBooks offline, anywhere, any time.

What specific benefits would this have to local government legal professionals?

With ProView, you’ll get the answers to your queries, fast and it’s very simple to use. The text can be adjusted to your preference which makes it easier to read. With ProView, you have the confidence and convenience of knowing your library is close to hand and you’ll know you’re looking at the latest version of a book (published updates appear in your library automatically). We retain the print page and paragraph numbers in ProView so you can transfer between print and eBook if required. Above all, you’ll be more efficient in the office and with continuous offline access, more effective and self sufficient when away from the office, be it at home, in court or in meetings.

Throughout 2013 The following features were added to ProView:

›› Anchor Lists and Navigation ›› Ios7 update ›› Enhanced annotations management (Annotation labeling, filtering, searching, page number references and TOC references)

›› Enhanced Displaced notes (Options to assist the user now includes Searching and Jumping to Originating Section)

For 2014 ›› Preview pull-down – to quickly

Key Titles on ProView

move between recently viewed titles without having to return to library

›› Enhanced periodical support (journals etc)

›› E-reference sorting – in addition to periodicals

›› Publish date and optional text ›› Local e-pub import – import other titles that are not protected by DRM

Chitty on Contracts, 31st Edition and 1st Supplement Crown Court Index 2014 De Smith's Judicial Review, 7th Edition Mental Health Act Manual, 16th Edition

White Book 2014 Wilkinson's Road Traffic Offences, 26th Edition

(Create and Share PDF)

›› Sort by Topic ›› Support for periodicals

What happens to the notes and bookmarks that are made to a title on the app when the next edition publishes?

This can save you a lot of time. We have a feature that will automatically transfer your notes and bookmarks when a new edition publishes. If the structure and content of the new edition has changed significantly,

Archbold Magistrates' Courts Criminal Practice 2014

Stroud's Judicial Dictionary of Words and Phrases, 8th Edition and 1st Supplement

›› Print ›› Where Print exists

What future developments are planned for the app?

We’ve just introduced a feature which allows a reader to import eBooks into ProView from other publishers. This means that you can benefit from many of the ProView features even if the eBook isn’t published by Thomson Reuters and allows you to create one library of eBooks with all the benefits of a single access point. Later this year, you’ll be able to link from a case or legislation citation in a ProView eBook to the relevant document held in Westlaw UK. You’ll also be able to link between eBooks within your ProView library. We’re constantly updating and improving the platform in response to customer feedback.

Archbold: Criminal Pleading, Evidence and Practice 2014

some of these annotations will be displaced, but we retain them and you can manage the transfer manually - still much easier than in print.

Will I be able to purchase any looseleafs or journals via ProView?

We have many books already available and we’re just launching our first looseleafs and journals now. We’re hoping to release the Encyclopaedia of Planning to ProView later this year so it may be worth keeping an eye out for that.

What devices can ProView be installed on and on how many devices can it be installed per user?

Each ProView user is entitled to download a purchased eBook to 4 personal devices.

This means you can have it installed at work, home and on your tablet so you can work most effectively wherever you are. We support iPad, Android tablets, Windows PC and Mac.

Will supplements of titles be included into the main text or available as a separate title?

At the moment, we’re following the print model and publishing the supplement as a separate eBook. We have a feature that allows you to toggle easily between books but we know its not the ideal solution so we’re working towards a solution that merges updates into the main body of the text.

How much does the app cost?

The ProView app is free and you can download it from the App Stores or our website. The eBooks which run in ProView can be bought from our online store or our account managers. eBooks are priced the same as their print equivalent or you can buy a discounted bundle of print and eBook. You can request a free trial today and try this out for yourself.

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25

BOOKSHOP Service Charges and Management 3rd Edition Provides comprehensive coverage of the law relating to service charges and management of commercial, residential and mixed use developments with commentary on leasehold and commonhold property.

• Written for use by solicitors, counsel, surveyors, managers, landlords and tenants • Examines the topic of service charges and management thoroughly, addressing potential issues and offering useful guidance on the available remedies • Management issues covered include the appointment of manager, acquisition orders and the acquisition and exercise of the right to manage • Covers service charges in relation to commercial, residential and mixed-use, leasehold and commonhold property Now Published £145 978 0 41403140 1

Highway Law 5TH Edition The new 5th edition supplies a detailed and practical commentary on the law relating to the creation, upkeep, development and ownership of highways, including the powers and duties of highway authorities, the rights of users of the highway and of those who own land around the highway.

• • •

Provides you with a complete reference to the law governing highways Delivers clear, practical guidance, written in a straightforward and accessible style Addresses matters of particular interest to practitioners, such as stopping up and diversion orders, traffic orders, street works, footpaths, bridleways and bridges Now Published £175 978 0 41402490 8

Pensions on Divorce 2nd Edition Explains in an accessible fashion one of the most technical and pitfall-strewn areas of family law practice.

• Explains what powers the court has to intervene and redistribute pension rights • Goes through the procedural mechanisms which the court will follow in carrying out intervention and redistribution • Discusses the circumstances in which the court will consider it appropriate to intervene and redistribute pension rights or make some other compensatory provision Now Published £95 978 1 90801319 4

Todds’ Relationship Agreements This new book brings together in one source comprehensive guidance on the law relating to all types of relationship agreements.

• Details precisely how to decide if the agreement was unconscionable at the date of its inception, considering duress, undue influence, mistakes, inadequate legal advice, etc. This is an essential aspect that competing titles do not appear to address • Gives detailed drafting advice, highlighting what should be included and what should not • Suggests a frame work for calculating fair figures to put in a pre-nup and a methodology for determining these • Specifically addresses conflicts between jurisdictions – the key issue behind the landmark Radmacher case Now Published £100.98 978 0 41402303 1

Family Law Jurisdictional Comparisons 2nd Edition, European Lawyer Reference Series Family Law is an essential guide that enables you to make quick comparisons between 46 international jurisdictions worldwide.

• •

Offers essential current content reflecting Family Law across over 46 major jurisdictions throughout the world Includes contributions from expert international family lawyers who are Fellows of the International Academy of Matrimonial Lawyers (IAML) • Provides a reader-friendly Q&A format to allow for easy cross-jurisdictional comparisons Now Published £180 978 0 41402870 8

Wilkinson’s Road Traffic Offences 1st Supplement to the 26th Edition Wilkinson’s Road Traffic Offences is the leading work on the law and practice of road traffic offences. The 26th edition brings you up to date with the latest developments in road traffic law. The 1st Supplement brings the main work up to date to February 1, 2014.

• •

Detailed coverage of the new drug driving offences to be introduced by the Crime and Courts Act 2013.

Considered analysis of the Supreme Court decision in R v Hughes on the issue of causation with regard to the offence of causing death by driving whilst uninsured, etc.

• Latest legislative developments as regards drug driving; failing to display a licence; a road user levy; non-custodial and community sentences May 2014 £69 978 0 41403511 9

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As long as the goods are returned within the 30-day period, in good resalable condition and according to our returns procedure, your order will be cancelled and you will owe nothing or will be refunded the price of the goods. Applicable in UK and Europe only.

Hague on Leasehold Enfranchisement 6th Edition Now in its sixth edition, Hague on Leasehold Enfranchisement is the definitive source on the law and procedures to follow for enfranchisements involving houses, collective enfranchisement of flats and the individual right to a new lease. Includes the following: • Hosebay Ltd v Day [2012] 1 WLR 2884 • Cravecrest v Duke of Westminster [2013] 4 All ER 456 • Cadogan v Magnohard [2013] 1 WLR 24 June 2014 £195

978 0 41402875 3

The Law of PUBLIC AND Utilities Procurement 3rd Edition, Volume 1 This edition of the work regarded as ‘the bible’ on procurement issues provides a detailed explanation of the legal and policy framework for procurement in the EU and UK, including full analysis of how the 2014 directives will change the rules.

• Includes full analysis of the “problem areas” in the new directives • Looks in depth at procedures for awarding PFI/PPP contracts • Offers detailed analysis of “grey” areas of practical importance, such as post-tender negotiations and corrections to tenders July 2014 £125

978 0 42196690 1

Care Act Manual New Title The Care Act Manual provides a comprehensive and crucial guide to the Care Act 2014 regarding the provision of care and support services to older and disabled people, and their carers, plus safeguarding vulnerable adults from abuse and neglect.

• Ensures you understand the rights and responsibilities of the party you’re advising • Makes sure you’re working from the most up-to-date source available on this new Act • Recognises the impact recent changes to the law have on affected parties June 2014 £65

978 0 41403260 6

Mental Capacity Act Manual 6th Edition The new 6th edition provides a detailed and practical commentary on the law relating to empowering and protecting vulnerable people who are not able to make their own decisions.

• P and Q v Surrey County Council (Respondent) on how the Court should determine whether there is a deprivation of liberty for the purposes of the Mental Capacity Act 2005 • A Local Authority v AK which examined pre-Act authority when identifying the test for capacity to marry • IM v LM where the Court of Appeal confirmed that the test for capacity to consent to sexual relationships is general and issue specific, rather than person or event specific June 2014 £55

978 0 41403438 9

Directory of Local Authorities 2014

COMING SOON

The Directory of Local Authorities 2014 is an invaluable tool for anyone involved in conveyancing searches and property work.

Fully updated every year, it contains complete contact information for every local authority in England, Scotland and Wales. The Directory is much more than just a listing of local authorities. It also provides: • A gazetteer of over 25,000 place names, all cross referenced to the appropriate authority • Full contact details for authorities, including email addresses and URLs where available • Conveyancing fees and charges for each authority July 2014 £70

978 0 41403446 4

Request a Standing Order For any of these titles and receive a 10% discount. Plus, future editions will be sent to you automatically, each with the same 10% discount. For more information visit sweetandmaxwell.co.uk

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27

LOCAL GOVERNMENT LAW

AT YOUR FINGER TIPS on westlaw uk

We’ve been working hard to ensure that we continue to deliver the information you need in the ways you want it. That’s why we’ve identified our key looseleaf titles that local government legal professionals use and ensured that they are available to you on Westlaw UK. You’ll have all the tools you need in one place, online – meaning it couldn’t be easier for you to access the information you need, and fast.

Local government law now available on Westlaw UK...

Schofield’s Election Law • Local government law • 3 Releases a year • Sets out and explains the law and practice of elections and referendums in England and Wales Encyclopedia of Local Government Law • Local government law • 3 Releases a year • Incorporates full texts of Acts and regulations, accompanied with a detailed commentary and full references to relevant judicial authorities

Encyclopedia of Social Services and Child Care Law • Family & social welfare law • 3 Releases a year • Provides clear explanation of the law relating to the care of children and vulnerable adults and social services

Cross on Local Government Law • Local government law • 3 Releases a year • The definitive narrative text on local government law with an established reputation among local government officers and lawyers. It provides a full and detailed account of local authorities’ powers and duties in their many fields of operation

Encyclopedia of Planning Law and Practice • Planning law • 4 Releases a year • The most comprehensive source of information and guidance on planning law and policy includes all relevant legislation including EC legislation as well as domestic statutes and statutory instruments

Encyclopedia of Housing Law and Practice • Housing law • 4 Releases a year • Providing the housing law practitioner with a wide range of housing information, including all relevant legislation with annotations

Encyclopedia of Compulsory Purchase and Compensation

EU Public Procurement Law and Practice • Local government; Public procurement law • 2 Releases a year • Providing practical guidance on all aspects of the EU public procurement legislation

REUTERS / Paulo Whitaker

Encyclopedia of Environmental Health Law and Practice • Environmental law • 3 Releases a year • A definitive source of reference whenever needing guidance on any aspect of this wide-ranging area of law

Encyclopedia of Highway Law and Practice • Highway law • 3 Releases a year • Ideal for the practitioner dealing with all compliance issues, and including the full text of all relevant legislation with annotations

• Planning law • 3 Releases a year • Provides a complete and up-to-date guide to the complex provisions of the law relating to compulsory purchase and presents detailed coverage of the powers of relevant authorities Sweet & Maxwell’s Planning Law: Practice and Precedents • Planning law • 3 Releases a year • Dealing with all aspects of town and country planning, and specifically written to help you solve the problems you are likely to face in daily practice

Encyclopedia of Road Traffic Law and Practice • Road Traffic • 3 Releases a year • Reproduces all relevant legislation and subordinate legislation, with clear detailed explanation and interpretations and includes summaries of case law and separate sections devoted to procedure and EU materials Ruoff and Roper: Registered Conveyancing • Conveyancing • 4 Releases a year • Unrivalled reference source on land registration covering the whole process of land registration from first registration and upgrading of land through to rectification, indemnity and determination of disputes Emmet and Farrand on Title • Conveyancing • 4 Releases a year • Guiding readers through the law and practice of conveyancing, Emmet and Farrand covers every stage of the conveyancing transaction in meticulous detail, from enquiries before contract through to completion Woodfall Landlord & Tenant • Landlord & tenant • 4 Releases a year • Provides you with a complete and definitive reference work covering residential, commercial and agricultural landlord and tenant law and covers a range of topics from the relationship between landlord and tenant, through leases and leasehold enfranchisement to the implications of commonhold ownership, rent and covenants For more information about our local government content on Westlaw UK contact your account manager, or call us on 0800 028 2200.

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29

CONTACTS

YOUR THOMSON REUTERS Local Government Account Managers can be contacted by TELEPHONE or EMAIL as listed below.

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Philippa Pritchett-Brown 07702 319 730 philippa.pritchett-brown@ thomsonreuters.com

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Nick Dosanjh 07885 389 135 nick.dosanjh@thomsonreuters.com

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THE CARE ACT MANUAL THE ESSENTIAL GUIDE TO PROTECTING THE VULNERABLE

In light of the Care Act 2014, the Care Act Manual provides a comprehensive and crucial guide to this piece of legislation.

Written by Tim Spencer-Lane who is responsible for the Law Commission’s review of adult social care law, the Care Act Manual is written in a clear and practical style is written in a clear and practical style to help you easily understand the law and its implications.

CARE ACT MANUAL Tim Spencer Lane • ISBN: 9780414032606 • Publishing: July 2014 • Price: £65

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