March 2016

Featured articles

Real estate and smart property management

Slicing the business rates cake

The legal aspects behind the successful Bedroom Tax appeals

Re-organising the public sector

The Cities and Local Authorities Devolution Act 2016

Holiday pay must take into account lost commission confirms the EAT

Risk management of laboratory

Gender pay gap reporting and what it means for you

Cases

Legislation

The fall-out from the spring Budget continues apace and we are moving rapidly towards the Brexit vote and a summer

of much anticipated political drama, whichever way the result goes. The Budget has impacted particularly on schools

and businesses plus the next stage in the great devolution revolution was unveiled. In this edition of our newsletter,

we consider the ‘one public estate’ vision and how the local urban landscape could be changing accordingly. Further,

will the freezing of business rates improve or remove the local high street and what will the effects be on small and

medium-sized businesses? How are all of these changes to be implemented with the re-organisation of resources

within the public sector and the passing of the Cities and Local Authorities Devolution Act 2016? In the employment

arena, we report on the new regulations on gender pay gap reporting and we have highlighted two cases concerning

benefits and the so-called ‘bedroom tax’. We also examine a key recent case dealing with holiday pay entitlement

where employees earn commission. Away from the political arena, read our case analysis on the chemistry lesson

which went wrong at a UK secondary school, resulting in an HSE prosecution. And suddenly it was Easter already - a Happy Easter to all.

Real estate and smart property management

Clive Bleasdale and Nathan East, Partners in our Real Estate team, set out what the ‘one public estate’ concept is and

some of its key considerations. The principle behind the concept involves selling unnecessary buildings in order to make

a more efficient and streamlined use of the public estate. We look at some of the key factors for clients to consider...

Consolidation of local government services and assets under the Public Service Transformation initiative is focusing

minds on how best to manage public sector assets in a way that supports government aims to promote growth and get

public sector organisations to live within their own means.

We have had a number of dealings which seek to promote the “one public estate” concept and highlight here some points

to consider from our experience.

It is worth noting that according to central government statistics the estate is extensive – central and local government

together own property worth £370bn, with annual running costs of over £20bn. The properties range from offices to

laboratories, prisons, courts, hospitals and airfields, reflecting the wide spread of functions the government supports.

The overriding aim is therefore for councils and other public sector organisations to join together to use their assets

more efficiently to deliver efficiencies.

The principle involved is about selling off unnecessary buildings, and making more efficient and streamlined use of the

public estate. It will see partnerships of local authorities looking to deliver major service transformation, large-scale

economic growth and efficiencies across local authority boundaries, city-regions and devolved areas.

Transformational funding may be provided to assist the focus on shared facilities and buildings. This is the case through

the One Public Estate initiative under which aspiring organisations to the scheme can make an application for financial

support as and when a new tranche of funding is made available. Police authorities continue to have access to a police

innovation fund to which application can be made for collaboration projects and fire services have had access to the Fire

Transformation Fund. Access to funding of those schemes however tend to require more than simple sharing of property

to be demonstrated, but a more intensive form of collaboration to be demonstrated. Creation of a landlord and tenant

relationship in itself is not enough.

We have been involved recently with consolidation of and sharing buildings between blue light services, as well as related

health and social care integration through shared buildings. Key factors in advising clients in this area are:

The suitability of existing premises for sharing and their ability to be adapted as opposed to new build options;

The cost in terms of running costs of “second hand space” as opposed to new build;

Assessing and then addressing the risk factors in any new build projects;

Organising legal agreements to facilitate funding new projects from the sale of existing assets which might

ideally be contemporaneous;

Striking a reasonable balance of cost against risk and short to medium term security of tenure and return on

investment;

Detailed consideration of existing portfolio ownership is essential with thought given to existing contractual

arrangements particularly occupational interests;

Collating useable and accessible data which provides information of use and relevance to the decision making

process and assessment of risk can’t be underestimated;

Dealing with conflicting requirements in certain circumstances and finding working solutions with particular

regard to health and safety and security as well as systems integration;

Considering the potentially broader and strategic joint venture aspect to these projects;

Adapting particularly in the present challenging office market environment to flexible working practices and

space planning to drive efficiencies and economies of scale;

Putting in place legal structures that are flexible enough to permit change should economic conditions require;

Apportioning risk and benefits fairly in any strategic partnering arrangements;

Addressing risk with construction industry contractors in a balanced way particularly taking account of due

procurement process and any state aid implications of certain types of development;

Considering short or longer term occupancy arrangements by non public sector organisations where appropriate

and flexible or more secure letting arrangements;

Aligning councils' potential regeneration objects in either town centre or more peripheral locations with the

concept of one public estate which may reduce risk factors more prevalent with purely private sector

regeneration projects;

Utilising funds generated by public estate sales to fund and in some instances “kick-start” strategic housing and

regeneration projects and considering the variety of funding options and structures that can be considered;

Considering the one public estate concept in respect of the construction and upgrade of educational, leisure and

sport facilities.

There are often no straightforward “text book” answers to the issues that arise but problem solving depends on

expertise in built environment public sector projects from the consultants (not just legal of course) involved in projects.

In terms of the delivery of projects under One Public Estate, or estate consolidation projects of a similar nature we have

seen that one size does not fit all. A number of projects have led to the establishment of property service companies

which are essentially shared service organisations. These companies are then empowered to use economies of scale in

terms of procuring solutions for the management of the estate of the participating organisations and reducing FM costs.

The property company also then acts as a hub to consolidate the information around the combined estate, look at

surpluses and need and try to match these requirements to ensure any needs for additional space are met through the

existing estate.

Other schemes have gone further and have transferred capital or assets into a new corporate vehicle such as an LLP or

limited company such as the development of a new £15m headquarters by Derbyshire FRS and Derbyshire Police. This

has had the benefit of protecting the capital investment of each party and delivering income to the parties in line with

their capital share.

Emergency service estate collaboration could now form part of the general duty to collaborate which is currently making

its way through parliament. It provides particularly fertile ground in that mapping exercises carried out on behalf of a

number of emergency service organisations have shown considerable overlap, and an ability to reduce the footprint of

the estate without affecting response times or frontline services.

Some ambitious organisations are also looking at further partnerships that can deliver further returns from the surplus

estate and the renewal or replacement of old facilities by engaging a partner to participate in a Local Asset Backed

Vehicle structure. LABVs generally involve a private investor or funder matching the value of the estate contributed to the

venture by the public sector partner by way of new capital to deliver increased returns which are then shared.

A body of knowledge and expertise is there though which can be accessed in how arrangements can be made to work to

deliver functional as well as cost effective solutions so a modern, fit-for-purpose, and efficient core estate, which

provides value for money for the taxpayer, increases sustainability and enables improvements in the way the

organisations work is achieved.

It is very satisfying to be involved in projects that set out to and then achieve these objectives and it can only result in

the extension of the one public estate concept in our view.

A version of this article appeared in Local Government Lawyer.

Slicing the business rates cake

How will George Osborne’s business rate devolution affect local government? Simon Goacher and Graeme Creer from our

Local Government team scrutinise the possible impacts on growth and, the strength and speed of growth in different

areas. With the tariffs and top-ups yet to be finalised, local authorities could be competing with one another for real

economic growth and ways in which to attract successful business to their area...

Last October, George Osborne told the Conservative Party conference: ‘I am embarking on the biggest transfer of power

to our local government in living memory. We’re going to allow local government to keep the rates they collect from

business. That’s right, all £26 billion of business rates will be kept by councils instead of being sent up to Whitehall’.

Recent Government figures predict a £400m increase in business rates income, to £23.5bn after reliefs and adjustments.

But what lies behind the exuberant rhetoric and the big numbers?

From 1990 to 2013 English councils just collected the rates and passed them on to the government, which redistributed

them according to its assessment of spending needs. In 2013 authorities were allowed to keep half of what they

collected, with the rest redistributed by government as before, including a system of “tariffs and top-ups” to enhance the

redistributive effect. The idea was to encourage local authorities to promote economic growth by giving them a share in

the additional rate income.

In principle, the £400m increase does reflect growth. The business rate multiplier is pegged. Additional business rates

can only be levied for ‘business improvement districts’ if local businesses agree, and through a ‘business rates

supplement’ scheme for new infrastructure (only one exists, for Crossrail), and the review of rateable values has been

put on ice until 2017.

Local authorities have pressed for fiscal devolution. Supported by a 2014 Select Committee report, London and the core

regional cities have sought a variety of new fiscal freedoms, and these figured in many of last years’ devolution bids and

deals.

The new plan is for local authorities to be able to fix their own business rates - up to a point. They will be able to cut the

rates. City regions with elected mayors will be able to increase their chunk of the rates up to a cap, probably 2p on the

rate. Government retention and redistribution will be phased out from 2020, although there will be some tariffs and top-

ups to protect authorities with low levels of income or who would suffer a big drop in income, and eventually non-

specific government grants will be phased out completely.

Local authority associations welcomed the proposals. The city regions, including the ‘Northern Powerhouse’ cities, were

more cynical, and the emphasis in the 2016/17 local government financial settlement on protecting rural authorities has

fanned the flames.

Whatever labels you use, the components are the same. Council tax income increases are limited to 2%, with an

additional 2% for social services. The scope for income generation from fees and charges or municipal trading is limited,

and government support will continue to reduce. National business rate income will not increase – the change will be

‘fiscally neutral’ – so the only variables are the system of redistribution and growth from new or bigger businesses.

But the city regions have higher levels of deprivation, greater demand for services, and lower levels of economic growth

than the South East and the shire counties. In principle, allowing councils to keep business rates, or business rate

increases, will favour those parts of the country where the economy and economic growth is strongest.

Two things follow. Firstly, local authorities will have to concentrate on real economic growth, competing with each other

to attract new businesses and struggling with the planning and environmental implications. Secondly, though, the tariffs

and top ups will be crucial, and the details have not yet been published.

It is good news that the business rate cake is a little larger than it was, and promoting growth will be at a premium, but

the real debate will be about how the cake should be sliced. We will see how powerful the Powerhouse is when that

debate begins in earnest.

A version of this article appeared in Local Government News.

The legal aspects behind the successful Bedroom Tax appeals

Sian Evans, a Partner in our Social Housing team, analyses two cases which both argued that removal by the Secretary of

State for Work and Pensions of part of their means-tested Housing Benefit in respect of their public sector housing was

unlawful. The article looks at how the Court of Appeal arrived at its decision that the parties’ exclusion from the

exemptions as victims of domestic violence or disabled children was unlawful…

In two appeals, the appellant A (a female victim of serious violence living in housing protected under the Sanctuary

Schemes) and the Rutherfords (the grandparents of Warren (W), a severely disabled child) and W contend that the removal

by the Secretary of State for Work and Pensions under Regulation B13 of the Housing Benefit Regulations 2006 (the 2006

Regulations) of part of their means-tested Housing Benefit in respect of their public sector housing was unlawful.

Regulation B13 was introduced into the 2006 Regulations by the Housing Benefit (Amendment) Regulations 2012 (the

2012 Regulations) which came into force on 1 April 2013. The effect of the 2012 Regulations was to reduce Housing

Benefit if the accommodation in which a person lived exceeded the number of bedrooms deemed to be required as

defined by a formula. The formula was varied by Regulation B13(5)-(7) which provided that an additional bedroom would

be allowed for defined classes of persons. It was contended by each of the appellants that they should be part of that

defined class.

Provision was made for Discretionary Housing Payments (DHPs) to be made available to those who, although not falling

within the defined class of persons allowed an additional bedroom under Regulation B13, might have needs which

should reasonably be met by DHP. The benefits payable as DHPs are discretionary and are administered by the relevant

local authority.

They argued that their omission is unlawful discrimination under Article 14 of the European Convention on Human

Rights (ECHR). A also contends that it is unlawful by reason of a breach by the Secretary of State of his public sector

equality duty under s.149 of the Equality Act 2010. Both these cases have proceeded on the accepted basis that

Regulation B13 constitutes discrimination on grounds of sex (A) and disability (W). The question for the court was,

whether the Secretary of State was able to show that there was objective and reasonable justification for that

discrimination which was not manifestly without reasonable foundation.

The Rutherfords lived with their grandson who suffered from a mental and physical disability. The grandson required

care which was provided by the Rutherfords and overnight carers. Discretionary powers and payments had been granted

by Pembrokeshire Council to cover the rent shortfall until April 2015.

A was the victim of domestic violence by her ex-partner which resulted in rape. She suffered post traumatic stress

disorder following threats of violence from her ex-partner and her property was adapted so that she had a safe room

under the Sanctuary Scheme. Housing Benefit was reduced by 14% with the shortfall being covered by discretionary

housing payments.

The Court of Appeal held that their exclusion from the exemptions as victims of domestic violence or disabled children is

discriminatory and unlawful and that the provision of discretionary housing payments was insufficient to justify that

discrimination.

Permission was given for the Secretary of State to appeal to the Supreme Court and a 3-day hearing was listed

commencing on 29 February. Judgment will be given at a later date.

The Secretary of State for Work and Pensions issued an urgent Bulletin on 28 January confirming that Local Authorities

should not take any action based on the Court of Appeal ruling. The Bulletin states that the ruling has not changed the

applicability of the maximum rent (social sector) provisions and that authorities should not be reassessing claims which

have similar circumstances as found in these appeals. Accordingly, it is necessary to wait for the outcome of the appeal

to the Supreme Court before we have clarity.

A version of this article appeared in 24 Housing

Re-organising the public sector

Public sector transformation is all around but what does it mean and what are the major employment issues ? Andrew

Tomlinson explores some of the pitfalls that can arise when public sector bodies attempt to re-organise…

Those of us who work with the public sector cannot fail to have noticed that Public Service Transformation has been

challenging local authorities to rethink their modus operandi and the skills they need in their newly reconfigured teams.

Frequently, this will involve reducing headcount in some areas, merging or consolidating certain teams and services, or

else hiring individuals to bring in new skills.

This is a challenging time for the public sector HR departments, as they try to walk the fine line between ensuring that

any new structure is meeting the needs of their organisation, while ensuring that they are staying on the right side of the

law, both in order to avoid the potential risk of liability, and also to ensure maximum buy-in to any changes from the

employees on the ground.

Potential redundancies: are you consulting collectively?

HR Departments should generally be familiar with the procedure of running an effective redundancy process, and the

first port of call in any such situation will be the appropriate internal policy. There are still pitfalls to watch out for,

however, particularly in relation to large-scale redundancies.

Most are aware that there is an obligation to consult with employees collectively where there are proposals to make 20 or

more redundancies at one establishment within a 90-day period. There is then a sliding scale of the amount of notice

required depending on the numbers at risk: For 20-99 redundancies in a 90-day period requires consultation to start at

least 30 days before the first dismissal; and For 100 or more redundancies in a 90-day period, the consultation should

start at least 45 days before the first dismissal.

In addition, you will also need to consider notifying the Secretary of State by completing an HR1 form. This is of vital

importance as any failure to pre-warn the Secretary of State about collective redundancies is technically a criminal

offence, and could leave employers liable for paying fines that, since 12 March 2015, have been unlimited in value. This

notification requirement has been brought into sharp focus in recent months when, for the first time in over 20 years,

prosecutions have been brought against the directors of a number of businesses that failed properly to notify the

Secretary of State.

You should also allow plenty of time to consult with employees and to plan out a redundancy exercise in good time. It is

crucial, however, to prioritise formal notification to the Secretary of State which can easily be overlooked at such a

stressful and busy time.

Outsourcing: have you considered TUPE?

It is common in a restructuring or re-organisation exercise for management to consider the possibility of outsourcing

certain teams or functions, and in these circumstances it is important for HR practitioners to be familiar with the

operation of the TUPE Regulations.

Of course, it is well known that transfers of administrative functions between public bodies are exempt from the

requirements of the TUPE Regulations, but this exception is usually interpreted very narrowly and, in reality, the Cabinet

Office Guidelines which state that transfers should take place as per TUPE guidelines, even if the regulations themselves

do not apply.

Unless a fairly clear-cut exception applies, therefore, it is always best to operate as if the TUPE regulations apply to the

transfer. With that in mind, there are some issues that all HR practitioners should bear in mind:

Since 31 January 2014, Employment Liability Information, which includes details on all those employees affected by the

TUPE transfer, must be provided at least 28 days before any transfer. It is always best practice to prepare this as soon as

you are able to and, importantly, organisations should make sure that this information is kept up to date throughout the

process, ensuring that employees no longer affected by any transfer are removed from the list.

Practitioners should also make sure they have a good grasp of any collective agreements that might cover affected

employees, and they should be satisfied that they have a record of all terms and conditions covered by these agreements

at the transfer date. If there are, say, payment increases that have been collectively-negotiated

to occur in the future, these will no longer apply to the affected employees post-transfer, as the terms will be set in

stone at the transfer date.

Additionally, it is now easier for organisations to change these collectively-agreed terms and conditions following a

transfer. Organisations still do not have the right to “harmonise” terms and conditions, but they can change collectively-

agreed terms, so long as 12 months has passed since the transfer and the overall changes are no less favourable to the

employee. This is a useful tool for practitioners, particularly concerning relatively minor terms in the contract, but

practitioners should think carefully about how any changes may negatively employees.

Each of these issues can involve a complex analysis of both the legal position and the factual situation behind the

transfer, so HR practitioners should always consider seeking specialist advice before coming to a conclusion on any of

these points.

A version of this article appeared in Local Government Lawyer

The Cities and Local Authorities Devolution Act 2016

The Act received Royal Assent on 28 January 2016. A significant piece of legislation for all local authorities, the Act

makes provision for how a mayor is elected, the length of a mayoral term and constraints on the mayor’s duties. Graeme

Creer, Consultant in the Local Government team, takes a look at the small print…

Purpose

1. “An Act to make provision for the election of mayors for the areas of, and for conferring additional functions on,

combined authorities established under Part 6 of the Local Democracy, Economic Development and Construction

Act 2009; to make other provision in relation to bodies established under that Part; to make provision about

local authority governance and functions; to confer power to establish, and to make provision about, sub-

national transport bodies; and for connected purposes..”

Combined authorities – the elected mayor

2. The Act inserts new provisions in the 2009 Act. The 2009 Act allows the Secretary of State (SoS) to establish and

change combined authorities (CAs) so the new provisions add to his or her order-making powers. Therefore

they say what the SoS may do, not what he or she will do.

3. An order may provide for there to be an elected mayor for the area of a CA, styled as “mayor” and to be a

member of and to chair the CA. Such and order may not be revoked, although the SoS may make an order

abolishing the CA and therefore the office of mayor.

4. The Order may be made if the “appropriate authorities” make a proposal to that effect, or, if the SoS “considers

that the making of the order is likely to improve the exercise of statutory functions in the area”, with their

consent.

5. The “appropriate authorities” are any county council whose area includes the area of the CA, the district councils

whose areas are within the CA, and any existing CA. The county and district councils are called “constituent

authorities”.

6. If the order is triggered by a proposal, it may be included within a “scheme” for a new CA, or for changes to an

existing CA, preceded by a “review”. But a proposal may be made without a review or a scheme.

7. If the order is based on consent, rather than a proposal, and there is an existing CA, the first mayoral order may

be made even if some of the constituent authorities do not consent, provided that the CA and at least two

constituent authorities do consent. Any authority that does not consent must be removed from the CA.

8. The mayor will hold office for four years.

9. At the election, if there are two candidates, the candidate with the most votes will be elected. If there are more

than two, electors will have an additional “second preference vote”. If no candidate receives more than half the

first preference votes cast, the second preference votes are added to the votes cast for the top two candidates,

and the candidate with the most first and second preference votes will be elected.

10. The mayor cannot remain, or become, a councillor in a constituent authority. Candidates may stand for election

both as mayor of the CA and as a councillor, if the elections take place at the same time, but if they are elected

as mayor they cannot be elected as councillors. But the elected mayor of a constituent authority may be elected

mayor of the CA.

11. The mayor must appoint a member of the CA as deputy mayor. The deputy holds office until the mayor’s term

of office ends, so long as he or she remains a member of the CA, but may be removed from office by the mayor,

or resign. The deputy must act in place of the mayor if the mayor is unable to act, or the office of mayor is

vacant. If there is neither mayor nor deputy mayor, the CA may act in place of the mayor.

Combined authorities – the mayor and PCC functions

12. The order may provide that the mayor will exercise the functions of the Police and Crime Commissioner (PCC) in

the area of the CA. This requires the consent of the “appropriate authorities” and (if there is one) the mayor.

There will then be no PCC, or PCC elections.

13. The order may specify the PCC functions that are exercisable by the mayor, but the core PCC functions of

securing the maintenance of efficient and effective police force, holding the chief constable to account, issuing a

police and crime plan and appointing, suspending or removing a chief constable must be discharged by the

mayor.

14. The order must provide for the mayor to appoint a “deputy mayor for policing and crime” (DMPC), and authorise

the mayor to arrange for another person to exercise PCC functions. The DMPC may not be the deputy mayor

appointed for other purposes. The order must, in effect, incorporate provisions of the Police Reform and Social

Responsibility Act 2011 as to who may or may not be the DPCC and as to the functions which the mayor may

and may not delegate.

15. Likewise, the order must establish a Police and Crime Panel. The Panel will scrutinise the discharge of the PCC

functions by the mayor and the DMPC, and may be authorised to scrutinise any related non-PCC (“general”)

functions. The Panel must be able to suspend the mayor if charged with a serious offence. The order must

provide for arrangements to deal with complaints about the conduct of the mayor or the DMPC, and it must and

may apply other legislation that affects PCCs to them.

Combined authorities - functions

16. CAs exercise the transport functions which were previously the responsibility of an Integrated Transport

Authority, and any local authority functions exercisable in the CA’s area by a constituent authority specified in

the order establishing the CA. Under the new Act, the latter are no longer limited to economic development and

regeneration, and the cost of functions other than these can be recovered from constituent authorities. The

review and scheme promoting or altering a CA are no longer limited to transport plus economic development

and regeneration. So a CA can do anything that a constituent authority can do, if the order so provides. It

seems that the constituent authorities cannot veto this.

17. An order may also enable the CA to exercise any function that any “public authority” could exercise in the CA’s

area, or even a function corresponding to one that a public authority could exercise somewhere else. “Public

authority” includes (but seemingly is not limited to) a Minister or a Government department, but excludes a

county or district council. The public authority function may be exercisable by the CA alone, concurrently or

jointly with the public authority, or both jointly with the public authority and by the public authority alone. The

order may transfer the public authority’s property, rights and liabilities and may abolish the public authority. But

a national regulatory function which regulates the CA may not be exercisable by it, in its area at least. The

transfer may be conditional, and the CA may be obliged to take account of relevant policies or standards.

18. An order conferring public authority functions on a CA requires the consent of the appropriate authorities, but

again dissenting constituent authorities can be disregarded and removed from an existing CA in the first such

order, provided the CA and at least two constituent authorities agree. Nor is consent needed for an order which

revokes a provision in an existing order or disempowers the CA’s exercise of health service functions.

19. And when the order is laid before Parliament, the SoS must also produce a report explaining why it is expedient,

including the outcome of any consultation, the context and supporting evidence.

20. Section 16 of the new Act contains a separate self-standing power to make Regulations to transfer public

authority functions to local authorities. Section 18 limits this power, and the power to transfer public authority

functions to a CA, in relation to the devolution of health service functions. Both are described below.

21. Under existing legislation, CAs may be given “incidental” general powers similar to those under section 111 of

the Local Government Act 1972, but broadened to overcome the interpretation of that section which prevents

the incidental activity being too remote from the base power which it supports, and to include a “trading power”

to do things for a commercial purpose through a company. Under the new Act, an order may confer on CAs the

“general power of competence” under section 1 of the Localism Act 2011, in substitution for the incidental and

trading powers. This requires the consent of the appropriate authorities, but if the power is given in an order

which provides for an elected mayor then the provisions allowing non-consenting authorities to be disregarded

and removed from the CA apply.

Combined authorities – allocation and delegation of functions

22. In short, therefore, a CA will have transport functions and can have a range of local authority and public

authority functions, and the CA mayor may have PCC functions.

23. Section 101 of the Local Government Act 1972 provides for the delegation of functions and the establishment of

committees and sub-committees. That section, and other related governance provisions, apply to CAs much as

they apply to local authorities generally

24. An order may confer on the mayor, personally, any CA function. To distinguish them from PCC functions, they

are called “general functions”. They may only be exercised by the mayor, but he or she may delegate them to

the deputy mayor or an officer of the CA, subject to any restrictions in the order. The order may also allow the

mayor to delegate general functions to the DMPC, or to a committee. The members of the committee need not

be members of the CA, but the order can prescribe membership, the appointment of members, the chair, voting

powers, the information that is or is not to be disclosed to the committee by the CA, and the application of

political balance rules. The order may limit the mayor’s authority, for example so that certain functions require

the consent of the appropriate authorities. It can allow members or officers of the CA to assist the mayor in the

exercise of his or her functions, confer ancillary powers on the mayor (except for borrowing powers), and

authorise the mayor to appoint a single political adviser.

25. The order requires the consent of the appropriate authorities, but again if the power is given in an order which

provides for an elected mayor then the provisions allowing non-consenting authorities to be disregarded and

removed from the CA apply.

26. The order may permit the mayor to discharge his or her general functions jointly with any local authority, and for

a joint committee to be established. The governance arrangements of the joint committee can be prescribed in

the order.

27. It seems, though, that the CA cannot delegate functions to the mayor unless the Order so provides.

Combined authorities – financial matters

28. CA’s transport functions are funded through levies on constituent authorities. Levies fall within the authority’s

budget, and their council tax calculations. CA’s can also access government funding for transport schemes and

some have other sources of transport-related income.

29. The order establishing a CA sets out how the non-transport cost of the CA is to be met by the constituent

authorities, again in effect enabling the CA to levy those authorities, although these are not currently categorised

as levies under section 74 of the Local Government Finance Act 1988 or the Regulations which set out how levies

are to be calculated and recovered.

30. PCCs cover policing costs by precepting local authorities in their areas. Precepts fall outside the authorities’

budget calculations, but are recovered as part of the council tax.

31. The new Act provides that the costs of CA’s mayoral functions will be met though a precept on constituent

authorities. This will be a personal, non-delegable function. The Order will cover the maintenance of funds for

those costs and a budgeting process. If the mayor has PCC functions, the council tax requirement must contain

a calculation distinguishing the cost of the PCC functions from the cost of the mayor’s general functions. The

budget-making process is likely to include the preparation of a draft budget, review by other CA members,

scrutiny by an Overview and Scrutiny Committee and approval – or some kind of power of veto - by the CA.

32. The Local Government Finance Act 1988 is amended so that Regulations may be made permitting the recovery

by CAs of non-transport, non-mayoral function expenses as statutory levies. This requires the consent of the

constituent authorities and any existing CA.

33. The Local Government Act 2003 permits “local authorities” to borrow for the purposes of their functions. At the

moment, a CA is only a local authority under the Act for the purposes of its transport functions. The new Act

will enable Regulations to be made to remove that limitation, with the consent of the constituent authorities and

any existing CA. These Regulations require Parliamentary approval under the affirmative procedure.

Combined authorities – overview and scrutiny and audit committees

34. All CAs will have to establish one or more overview and scrutiny committees, able to review and scrutinise

decisions and actions taken in the exercise of CA functions, and mayoral general functions if relevant. They

must not have any other functions. The members of the CA (or the mayor or deputy mayor) may not be

members of the committee. The usual access to information and governance provisions of the Local

Government Act 1972 apply to them.

35. They must be able to make reports or recommendations to the authority on these and on “matters that affect the

authority’s area or the inhabitants of the area.” They must have call-in powers. They must publish their

“proposals and arrangements” and obtain the CA’s approval to them. They may establish sub-committees.

They must be able to compel members and officers to give evidence.

36. The order may make further provision about membership, voting, the chair, the appointment of a scrutiny officer

and about reports, procedures and the disclosure of information including provision for “confidential” and

“exempt” information. The majority of the members must be members of constituent councils. The chair must

either be an “independent person” (defined in the order) or an “appropriate person” (in a mayoral CA, someone

who is not a member of the same political party as the mayor, or in a non-mayoral CA, someone who is not a

member of the same political party as the majority of the members of the CA).

37. All CAs will have to appoint an audit committee, to review and scrutinise the authority’s financial affairs, risk

management, internal control and corporate governance arrangements, and the economy, efficiency and

effectiveness with which resources have been used, and to make reports and recommendations to the CA. The

order will provide for the membership of the committee, and the appointment of members. At least one

member of the audit committee must be an independent person (as defined by the order).

Combined authorities and EPBs – flexibility and consents

38. At the moment, CAs and Economic Prosperity Boards (EPBs – like CAs but with no transport functions) may not

include areas which are geographically detached. These restrictions are removed. EPBs and CAs now only have

to include two or more local authority areas, and not overlap other EPBs or CAs. If part of the area is separated

from the rest by an area that is not within the EPB or CA, or if the EPB or CA surrounds an area that is not within

it, the SoS just has to “have regard to the likely effect of the creation of the proposed EPB on economic

development or regeneration” in adjoining non-EPB areas, or “have regard to the likely effect of the creation of

the proposed combined authority on the exercise of functions equivalent to those of the proposed combined

authority’s functions” in adjoining non-CA areas.

39. Likewise, the process for creating and altering EPBs and CAs is simplified.

40. At the moment, any changes to the governance arrangements in an EPB Order have to be preceded by a review

by the EPB and the publication of a scheme. Under the new Act, reviews and schemes are only required to

change the boundaries of the EPB or to abolish or dissolve it. Other changes can be triggered by an application

to the SoS by the EPB or any authority in its area, which must say how the changes would improve the exercise of

statutory functions relating to economic development and regeneration or economic conditions in the area.

41. Similarly, the requirement for a statutory review and the publication of a scheme before a CA can be established

or changed is relaxed. In every case, the SoS must “consider that [the CA] is likely to improve the exercise of

statutory functions in the area…”, and “have regard to the need … to reflect the identities and interests of local

communities, and to secure effective and convenient local government” and the constituent authorities must

consent. But there are now two routes towards the creation of a new CA. One involves the current process of

review and scheme-making, including public consultation. The alternative just requires the SoS to carry out

public consultation. There are equivalent provisions for making changes to the CA or the governance

arrangements contained within the order.

42. At the moment, an authority may only be added to or removed from a CA if the authority in question consents.

Under the new Act it is more complicated. Consent is required from the authority to be added or removed, the

CA, and the mayor if it has one. If the authority in question is a district council within the area of a county

council, the consent of either (or both) of the district council or the county council is required to add the district

council to the CA, but the consent of both is required to remove it. The SoS’s duty to remove a dissident

authority from a CA because it does not agree to a mayor, or to the transfer of functions, overrides these

consent requirements, however.

43. This means that a district council can be added to a CA without the consent of its county council. And if a

district council is added to a CA, its county council cannot veto an order conferring functions on the CA or

Regulations giving the CA levying or borrowing powers. Likewise, a county council can be added (in relation to

all or just part of its area) to a CA without the consent of district councils in its area, and the district councils

cannot veto such an order or such Regulations. It also seems to mean that a district council can be added to a

CA at the behest of the county council even if the district council does not agree, although this may not have

been intended.

44. The mayor of a CA can veto its dissolution and abolition even if the majority of the authorities in the CA wish

this to happen.

Local authority governance and functions

45. The SoS is given a new power to make regulations prescribing the “governance arrangements” (generally the

executive arrangements or committee system operated by local authorities, their constitution and membership,

and their structural, boundary or electoral arrangements (including merger, moving to single tier and abolition).

The consent of the authorities in question is required, although for a limited period, ending in 2019, structural

or boundary changes can be made to a non-unitary district council if it consents but its county council does not

or – perhaps surprisingly – if the county council consents but the district does not.

46. The SoS is also given a power to make Regulations to transfer “public authority functions” to one or more local

authorities. This is couched in much the same terms as the power to confer public authority functions on CAs.

The authority must consent (unless the Regulations just amend or revoke earlier regulations, or remove a health

function from the authority). This replaces similar powers in the Localism Act 2011, which now only apply to

EPBs.

47. In both cases the Regulations have to be approved under the affirmative procedure and the draft must be

accompanied by an explanatory report.

Health Service functions

48. There is a special carve-out for the NHS. In principle, the power to confer public authority functions on CAs by

order, and on local authorities by Regulations, will encompass NHS functions. This is deliberate, in the interests

of health and social care integration as well as devolution. But there are limits, added to the Bill as it passed

through Parliament. The secondary legislation may not devolve “the Secretary of State’s core functions” or

national NHS regulatory functions. Both are defined in some detail. And the legislation must make provision

about the standards and duties to be placed on the receiving authority, having regard to national standards and

accountability obligations placed on the transferring authority.

49. The National Health Service Act 2006 is amended to enable the Health Secretary’s public health functions to be

delegated to CAs, NHS Commissioning Board functions (including their commissioning functions if specified

criteria are met) to be exercised jointly by or with local authorities or CAs and CCGs, and CCGs to exercise their

functions jointly with CAs. Further amendments provide for pooled funds for these arrangements, for CAs to

enter into s75 agreements for the delegation of functions, and for patient information to be shared with social

care bodies, including (but not limited to) local authorities.

The annual report

50. The new Act requires the SoS to present an annual report to Parliament about devolution in England. The report

must recite the devolution agreements reached, those that are in progress, any ministerial powers devolved to a

CA mayor, financial resources and other public functions devolved and “the extent to which consideration has

been given by a Minister of the Crown to the principle that powers should be devolved to combined authorities

or the most appropriate local level except where those powers can more effectively be exercised by central

government”.

Effect of mayoral referendums

51. An entirely unconnected amendment to the Local Government Act 2000 changes the consequences of a

referendum for an elected local authority mayor. At the moment, if the SoS makes an Order requiring an

authority to hold a referendum on moving to an elected mayor, then the authority cannot change its form of

governance or executive arrangements or hold its own referendum until the SoS’s referendum has resulted in a

“no” vote. This freezing provision is removed.

Sub-national transport bodies

52. Late amendments to the Bill unveiled a new three-letter alliteration (TLA?) – the sub-national transport body, or

STB. Transport for London (TfL) has operated as part of the GLA family since 2000. Transport for the North

(TfN) came into existence in 2014, as a non-statutory partnership involving central government, Northern city

regions and LEPs, Highways England, Network Rail and HS2 Ltd. The new Act places TfN – and in due course

perhaps other similar bodies – on a statutory basis.

53. STBs are created by Regulations made by the SoS for Transport, as corporate bodies. They must cover the areas

of at least two CAs, Integrated Transport Authorities (ITAs), county or district councils. The SoS must consider

that the STB would facilitate the development and implementation of transport strategies for the area, and thus

further the objective of economic growth. The constituent authorities must first consult any other local or

transport authorities in the area.

54. The Regulations will prescribe the STB’s constitutional arrangements (membership, voting, any executive

arrangements and the functions of any STB executive body) and may allow it to delegate functions to constituent

authorities, but it must set its own budget. The members will be appointed by the constituent authorities, from

their elected members (although they could co-opt others). Regulations will also set out the STB’s functions,

which will include preparing, consulting on and publishing a transport strategy for the area.

55. Regulations may also provide for transport functions exercisable by local and transport authorities in the area, or

by other public authorities, to be exercised by the STB. It may be able to give directions to the constituent

authorities as to the exercise of their transport functions. It will have general broad incidental and trading

powers, like an EPB and a CA that does not have the Localism Act general power of competence. The SoS can

change its boundaries, and the constituent authorities, by making further Regulations. It can, however, change

its name itself at a special meeting if at least two-thirds of the voting members agree.

National Park Authorities – general powers

56. English National Park Authorities are also given general incidental and trading powers.

Holiday pay must take into account lost commission confirms the EAT

Employment partner Phil Allen analyses this recent case in which the Employment Appeal Tribunal has confirmed that

employees who are paid commission, must have lost commission taken into account in some of their holiday pay. This

judgment is important for all employers who pay commission to employees...

The Employment Appeal Tribunal has confirmed that employees who are paid commission, must have lost commission

taken into account in some of their holiday pay. The Judgment in the case of British Gas Trading v Lock upholds the

Tribunal Judgment which we reported last year and follows on from the European Court decision in the same case. This

Judgment is important for all employers who pay commission to employees. However, it leaves many questions to be

decided and therefore there remains much uncertainty about how annual leave should be paid in practice. We understand

that the employer will be seeking leave to appeal the outcome to the Court of Appeal, which may see a ruling from that

higher court on the principles laid down in the ground-breaking Bear Scotland Judgment.

The detail

The amount of commission earned by Mr Lock was greatly in excess of his basic salary. When he took annual leave he

was paid basic salary and any commission which he had earned in previous weeks which happened to be paid during that

time. He was not paid extra for the lost ability to earn results-based commission whilst he was off. Accordingly there

was a disincentive for him to take leave, because he could not generate any new commission whilst on leave.

When this case was heard by the European Court it determined very clearly that European law required that a worker

must be paid in respect of periods of annual leave by reference to the commission payments he would have earned

during that period, had he not taken leave. This Judgment follows that of the Employment Tribunal and confirms this

applies directly in UK law to all employers. That is important because the wording of the UK Working Time Regulations

need to effectively be altered for that to be the case. The majority of the arguments before the EAT were about whether it

had to follow the Bear Scotland Judgment in a commission case, and in the light of previous Judgments. The EAT

confirmed it believed that it did and the same principles apply to commission and leave, as to non-guaranteed

(compulsory) over-time and leave.

What does this mean for me?

This judgment confirms what we have thought since the European Court judgment. It is important for any organisation

that has a commission element to pay. It means that any employee with any commission element, must have that

commission reflected in annual leave pay. However it does not provide us with any more help with the practical issues

which this European Judgment left for employers. There remains limited help about how exactly you work out what

should be paid and for whom, and when you can distinguish between European leave and UK/contractual leave. Broadly,

the Judgment means that employees with a commission element to their pay must be paid during (European) annual

leave based upon their actual average earnings, probably (but not certainly) by reference to the commission earned in

the previous twelve weeks. This judgment makes it even more important to carry out an audit of your approach to

holiday pay to identify areas of risk. It may make grievances and claims more likely.

The most important aspect of this case may be if leave to appeal is granted and if it is subsequently heard by the Court

of Appeal. Only once we have a Court of Appeal judgment will employers be able to know with any certainty whether Bear

Scotland and this decision are right for UK employers.

Comment

We know that approaches to commission and other incentive payments vary hugely. What impact annual leave has upon

your employees’ ability to earn will vary from role to role, and will depend upon what the employee is selling and how

you have incentivised them to do so. These annual leave judgments do not provide a one-size fits all answer to what you

should do. Before making decisions about a change in approach, or before you decide what risks you face, do take

advice on what it might mean for your employees and your system of reward.

Risk management of laboratory

Dewi Ap-Thomas, as Associate on our Regulatory Services Unit, underlines the importance of health and safety in

schools, especially those with an active teaching style in the subject of Chemistry…

Executive summary

A Bristol school has recently been prosecuted by the Health and Safety Executive (HSE) following an accident in which a

laboratory technician lost the top joints of three fingers and sustained internal injuries when a mixture he was preparing

for a fireworks demonstration exploded.

In detail

The laboratory technician was preparing an explosive mixture known as “Armstrong’s mixture”, a highly explosive

mixture of red phosphorus and a strong oxidizer, usually potassium chlorate. The mixture is sensitive to shock, friction

or flame. In fact, the mixture is so powerful it is used in consumer fireworks at milligram levels.

The accident occurred whilst the laboratory technician was preparing the mixture, when it exploded causing the

technician to lose the top joints of three of his fingers and rupturing his bowel. The technician spent 12 days in hospital

following the incident in October 2014 and returned to work in February 2015. However, he has since retired.

During the case HSE revealed that the demonstration had been carried out at the school on a number of previous

occasions and that the Armstrong’s mixture and other substances had been used to complete firework demonstrations.

It was further revealed that the ‘other substances’ which included flash powder and gunpowder, were both stored in the

school’s chemistry laboratory storeroom.

The school pleaded guilty to breaches of Section 2 and 3 of the Health and Safety at Work etc. Act 1974, in that it did not

conduct its undertaking in such a way as to ensure, so far as is reasonable practicable, the health and safety of its

employees or its pupils.

Background

The Health and Safety at Work etc. Act 1974 was enacted to safeguard the health, safety and welfare of those who could

be affected by the undertaking of dutyholder. In the case of this Bristol School, the accident could have been avoided and

it was evident that the school did not do all that was reasonably practicable to ensure the safety of its employees. The

HSE investigating inspector explained that the incident could have been avoided if the school had implemented clear

health and safety arrangements for their staff and pupils.

In essence, for an experiment with the potential to cause such serious harm, there should have been a clear system in

place to assess the risks involved to ensure that the task was safe, and in line with the school curriculum.

In terms of the risk assessment, the first question that would present itself is whether such a demonstration is suitable

to be completed in a school environment. Armstrong’s mixture is extremely unstable and consequently, unless there was

strong evidence to the contrary, it should have been concluded that the demonstration was far too hazardous.

Secondly, consideration should have been given as to whether the demonstration could be replaced with something less

hazardous? CLEAPSS (formally known as the Consortium of Local Education Authorities for Provision of Science Services)

give guidance on school demonstrations which are similarly educational but present a lesser hazard. The CLEAPSS

guidance also demonstrates practical measures and advice regarding the control of the risk involved in these

demonstrations.

However, whether the decision had been to use Armstrong’s mixture or ‘the other substances’ , consideration should

have been given to the requirement for the provision suitable control measures to ensure all persons involved in the

storage, preparation, use or viewing of the demonstration were protected. For some individuals in direct contact with the

mixture it may be concluded that personal protective equipment should have been made available.

Lastly, there should have been documentation such as a safe working procedure, or similar, provided to those involved in

the demonstration. When provided, such documentation should be clear and understood by all to whom it applies. The

documentation itself should be based on the findings of the risk assessment, hence, giving information regarding the

hazardous nature of the demonstration. In this prosecution it is clear that the inherent danger of the demonstration had

not been considered and as consequence, the appropriate arrangements where not in place to minimise risk.

Conclusion and implications

As a school, you must ensure that your health and safety policy and supporting documentation is present and represent

the hazards and risks created by your activities. It is important to consider health and safety management within your

premises. Most schools are well aware of the risks involved in the chemistry laboratory, but there are many significant

risks on school premises that remain that are often missed.

If you manage health and safety in your school you should challenge yourself: are you are confident that you are aware

of the significant health and safety risks created by your activities? These risks should be noted, risk assessed and the

appropriate information and procedures provided to those who may be affected if something goes wrong. If not, you

could be investigated and potentially prosecuted by the HSE if an employee, pupil or any other member of the public is

injured whilst attending or completing activities at your school.

This case illustrates the significance of ensuring health and safety is adequately managed and the potential

consequences when it is not.

Gender pay gap reporting and what it means for you

Companies have finally been provided with the gender pay gap information that they need to publish. Phil Allen, a

Partner in our Employment team, extracts the most relevant parts of the draft Equality Act 2010 (Gender Pay Gap

Information) Regulations 2016 and has compiled a handy checklist for employers...

We have finally been provided with the details of the gender pay information which employers will need to publish. Whilst

the media headlines have focused on the potential naming and shaming of employers who fail to report, the importance

of the Regulations for most of you will be in the detail of what exactly it is you will be required to collate and publish

about your employees’ pay.

The detail

What the draft Equality Act 2010 (Gender Pay Gap Information) Regulations 2016 say is the following:

The information on pay required will be a snapshot as at 30 April 2017. It will apply to the pay period for each

employee which includes that date. The obligation will be repeated annually for each period including 30 April

each year.

All employers will have to publish information calculated on the same basis. That means you will have to use the

calculations laid down in the Regulations, you will not be able to use your own or include/omit the information

you want to.

You will be required to publish figures which show gender pay difference as a percentage of the average female

employee’s pay. There will be two such figures. One showing the difference in mean pay between male and

female employees (that’s the average of the total of all employees’ pay), and the other showing the difference in

median pay (that is putting all your male/female employees in a line and identifying the pay of the person in the

middle).

The pay to be included in the calculation includes: basic pay; paid leave; maternity pay; sick pay; area

allowances; shift premium pay; car allowances; on-call and standby allowances; and clothing, first aider or fire

warden allowances. It does not include: overtime pay (which may be important for some); expenses; salary

sacrifice; benefits in kind; redundancy pay; arrears of pay; or tax credits. Most bonuses are to be treated

differently and will fall outside these figures.

You will also be required to present a figure which shows the difference in mean bonus pay earned between

male and female employees during the period of 12 months preceding the 30 April each year. This longer

reference period means that bonuses will be captured whenever they are paid in the year (whereas pay is focused

on pay each April). Bonuses are stated to include all profit share and long term incentive payments, as well as

the “equivalent value of shares on the date of payment” (whatever that might mean which is likely to be

contentious and create a headache for some of you).

You will be required to report the proportion of male and female employees who received bonus pay in the 12

month period.

You will also be required to publish numbers of male and female employees in each of the four quartiles of your

overall pay range.

The information will be required to be accompanied by a written statement which confirms the information is

accurate and is signed by a director, partner, or the most senior employee.

The information must be published on your organisation’s website: in English; in a manner that is accessible to

all employees and the public; and be kept there for at least three years.

The information will also be required to be uploaded to a government website, assisting the government in

collating the information.

The government has decided not to impose any requirement on employers to provide other information or to

explain the gender pay gap, but you will if you wish be able to add an explanation or other information. In

practice for many of your organisations this additional explanation is likely to be very important.

What will this mean for me?

There is one piece of good news for those of you who are in organisations subject to the Regulations, and that is that the

date for publication has been left open for employers. Whilst the snapshot must relate to pay at the end of April each

year (starting 2017), the information ‘only’ needs to be published within 12 months of that date. That means that the

last possible date for publishing information will be April 2018, leaving a reasonably long lead-in period for you to

consider what to say. However the information snapshot must relate to April 2017, so you will need to consider now

what your pay gap information will look like for pay at that date (and for bonuses this will relate to all paid in the year

from May 2016).

We already knew that the Regulations would not apply to employers with fewer than 250 employees and most public-

sector employers (that is those subject to the public-sector equality duty). It has been confirmed that this will not be

changed, so all private and voluntary sector employers with 250 employees or more will need to publish gender pay gap

information. The Regulations do not have any additional enforcement powers added to what had been proposed. You

need to ensure that you comply with the Regulations to avoid being named and shamed, but what will be important

about the content of the information posted will be publicity and/or what your employees may say it shows about your

organisation (possibly in Tribunal).

Comment

It is good that we now have a far greater idea about the detail which will need to be provided. However at the moment

these are currently draft Regulations (with a further brief period of consultation about them). We are told the final version

will be available by October and guidance will be issued to assist. The Government has endeavoured to ensure that all

employers produce consistent information. They have not required you to provide gender pay information by pay band

or grade, but that does not stop you publishing such information alongside the required numbers if it better reflects

your organisation’s approach to pay. For some organisations complying with the rules may be relatively simply. For some

explaining a gender pay differential may be a problem. For others collating this information may be time-consuming and

difficult. This is something you need to start thinking about now.

Cases

We highlight new cases of interest to local authorities from January and February 2016

Summary

Agriculture

Benefits

Childcare

Civil procedure

Costs

Council tax

Criminal procedure

Education

Employment

Environment

Flooding

Health

Housing

Human rights

Mental health

Planning

Procurement

Rates

Real Property

Social care

Agriculture

Robert Lindley Ltd v East Yorkshire Council (2016) UKUT 6 (LC) UT (Lands) 11/01/2016

A local authority was liable to compensate a farming company for damage to its crop field caused by an operation to

pump floodwater out of a nearby village. Although the pumps had been loaned by the Environment Agency, which had

helped in their initial operation, the local authority was the only risk management authority in the instant case that

had the power to carry out work to reduce the water level in the village. The Environment Agency's role had been one

of co-operation and assistance as required by the Flood and Water Management Act 2010 s.13(1).

Benefits

R (on the application of (1) Susan Rutherford (2) Paul Rutherford (3) Warren Todd (by his litigation friend Susan

Rutherford) v Secretary of State for Work & Pensions : R (On The Application Of A) (Appellant) v Secretary Of State For

Work & Pensions (Respondent) & Equality & Human Rights Commission (Intervenor) (2016) EWCA Civ 29

The court considered the lawfulness of the scheme under the Housing Benefit (Amendment) Regulations 2012, which

reduced housing benefit for those who were under-occupying their homes. The Housing Benefit Regulations 2006

reg.B13 discriminated against families with disabled children who required an additional bedroom for overnight

carers. It also discriminated against female victims of domestic violence living in accommodation adapted under the

sanctuary scheme. There was no objective justification for that discrimination.

Childcare

Re P (a child) (2016) EWCA Civ 3

A judge had erred in care proceedings in evaluating the mother's position and ruling her out as a long-term carer

before considering adoption. He should have analysed the pros and cons of adoption and then placed that analysis

against his conclusions on the mother.

Nottingham City Council v (1) LM (2) DW (3) LW (by her children's guardian) (2016) EWHC

The court gave guidance on good practice and fundamental steps to be taken in local authority care proceedings in

respect of newborns. Save in the most unusual and exceptional circumstances, local authorities must make

applications for public law proceedings in respect of newborns timeously and within five days of the child's birth at

most.

Birmingham City Council v SK (by her children's guardian) (2016) EWHC 310 (Fam)

Birmingham City Council had, in conjunction with the police, prepared a protocol which provided a clear and detailed

guide to the steps to be taken in cases of actual or suspected child sexual exploitation. Other local authorities and

police forces should consider using the protocol.

A Local Authority v (1) Mother (2) Father (3) Child (by his children's guardian) (2016) Fam Ct 28/01/2016

An order was made placing a 10-month-old child for adoption and dispensing with his mother's consent on the basis

that he would be at risk of significant emotional harm in her care. There were no other family members who could put

themselves forward as carers, and a long-term foster placement would not meet the child's needs for a permanent

home and family.

Civil procedure

R (on the application of Newham London Borough Council) v Stratford Magistrates' Court (2016) DC 22/01/2016

A local authority which had prosecuted a case in a magistrates' court was entitled to a case stated where, as a result of

a judge's ruling of law, the evidence it had offered would no longer prove the offence. The judge had not been

referred to a relevant authority and it was strongly arguable that his ruling had been incorrect.

Burdett v Devon County Council (2016) QBD (Admin) 14/01/2016

The court overturned a district judge's decision not to award a successful appellant his costs in magistrates' court

proceedings. The judge had failed to scrutinise the respondent local authority's behaviour, or to take into account his

own prior findings of fact, to determine if it had acted reasonably and properly in commencing and continuing the

proceedings.

Bexley London Borough Council v XXX (2016) DC 24/02/2016

A district judge had erred in awarding costs under the Council Tax (Administration and Enforcement) Regulations

1992 reg.34(7) to a local authority on an arbitrary sliding scale in respect of liability orders for council tax. The district

judge had to calculate the costs reasonably incurred, and the question of whether the costs had been reasonable was

fact specific.

Costs

Nicolson v Grant Thornton Uk Llp (Respondent) & Haringey London Borough Council (First Interested Party) &

Tottenham Magistrates (Second interested party) (2016) DC 25/02/2016

An auditor had been entitled to refuse to seek a declaration of unlawfulness or issue a report in the public interest in

respect of court costs charged by a local authority in seeking liability orders for unpaid council tax. The costs had

been reasonably incurred by the local authority and any policy decision to charge the maximum amount allowed by

law in order to deter non-payers did not render the costs unlawful.

Council tax

Harminder Singh Soor v Redbridge London Borough Council (2016) EWHC 77

A suspended committal order, arising from the appellant's liability for unpaid council tax, was unlawful as the

repayment period exceeded six years, which was too long.

Zafar V Redbridge London Borough Council (2016) QBD (Admin) 03/02/2016

The court dismissed a homeowner's appeal against a decision that she was liable for outstanding council tax, on the

basis that the appeal was out of time and totally without merit.

Criminal procedure

Zafar v Redbridge London Borough Council (2016) QBD (Admin) 03/02/2016

The court dismissed a homeowner's appeal against a decision that she was liable for outstanding council tax, on the

basis that the appeal was out of time and totally without merit.

Education

R (on the application of HA by his father & litigation friend, AA) (Claimant) v Hampstead School Governors (Defendant)

& London Borough Of Camden (Interested Party) (2016) EWHC 278

The governing body of a school had failed to formulate and communicate the reasons and objectives for its decision

to transfer a pupil for off-site educational provision as soon as practicable after the decision was made and to keep

the off-site placement under review as required by the Education (Educational Provision for Improving Behaviour)

Regulations 2010 reg.4 and reg.6.

Employment

Wandsworth London Borough Council v Mc Vining & Ors (2015) EAT 18/12/2015

Parks police officers employed by a local authority served in "a constabulary maintained by virtue of an enactment"

within the Employment Rights Act 1996 s.200(2) and were thus precluded from bringing claims of unfair dismissal:

the ECHR did not require the court to apply a different interpretation of s.200(2). The officers' trade union was

precluded by the Trade Union and Labour Relations (Consolidation) Act 1992 s.280 from bringing claims for a

declaration and protective awards.

Environment

Robert Lindley Ltd v East Yorkshire Council (2016) UKUT 6 (LC) UT (Lands) 11/01/2016

A local authority was liable to compensate a farming company for damage to its crop field caused by an operation to

pump floodwater out of a nearby village. Although the pumps had been loaned by the Environment Agency, which had

helped in their initial operation, the local authority was the only risk management authority in the instant case that

had the power to carry out work to reduce the water level in the village. The Environment Agency's role had been one

of co-operation and assistance as required by the Flood and Water Management Act 2010 s.13(1).

R (on the application of Silke Roskilly) v Cornwall Council & Ors (2015) EWHC 3711

The grant of planning permission for a development within the Town and Country Planning (Environmental Impact

Assessment) Regulations 2011 Sch.2, requiring a screening direction to see whether it required an environmental

impact assessment, was rendered unlawful by the secretary of state's subsequent positive screening direction

requiring an environmental impact assessment: that direction meant that grant of consent had not been accompanied

by environmental information, contrary to reg.3(4).

Flooding

Menston Action Group (Claimant) v City Of Bradford Metropolitan District Council (Defendant) & Chartford

Developments Ltd (Interested Party) (2016) EWHC 127

On the proper construction of their relevant policies in relation to issues of flooding, the National Planning Policy

Framework and the Planning Practice Guidance did not oblige a developer to seek out and provide opportunities to

reduce flood risk before planning permission could be granted. The test was to ensure that flood risk was not

increased elsewhere, although if a development proposal offered the benefit of reducing flood risk that would plainly

be a positive factor in the planning balance weighing in favour of the grant of planning permission.

Health

Newham London Borough Council v Iqbal (2016) DC 01/03/2016

The definition of "substantially enclosed" under the Smoke-free (Premises and Enforcement) Regulations 2006 reg.2

produced a 50% rule; a roofed structure would be "substantially enclosed" where the openings constituted 50% or less

of the perimeter under the roof. It was not concerned with a fine calculation of the actual wall area standing and its

openings.

Forge Care Homes Ltd & Ors (Respondent) v Cardiff & Vale University Health Board & Ors (Appellant) & Cardiff City

Council & Ors (Interested Parties) & Secretary Of State For Health (Intervener) (2016) EWCA Civ 26

The approach the Welsh local health boards had taken to fixing the funded nursing care rate in defining services they

had to provide under the Health and Social Care Act 2001 s.49, by taking a task-based approach and restricting

services to the tasks that only a registered nurse could perform, had been lawful.

Housing

Mirga v Secretary Of State For Work & Pensions : Samin v Westminster City Council (2016) UKSC 1

The denial of income support and housing assistance to two economically inactive EU citizens, resulting from the

application of domestic legislation, did not give rise to a breach of their rights under the TFEU.

R (on the application of Tanushi) v (1) City of Westminster (2) Hillingdon London Borough Council (2016)

QBD (Admin) 22/01/2016

An individual was granted a continued order for temporary accommodation where two local authorities agreed that

there was a duty to house her, but disagreed as to which of them had accepted that duty.

Stratford on Avon District Council v Persimmon Homes Ltd (2015) EWHC 3593

A local authority's application for an injunction pursuant to the Town and Country Planning Act 1990 s.187B to compel

a house builder to comply with certain planning conditions pertaining to its permission to build 85 houses was

unnecessary and disproportionate. There was insufficient evidence to show that it was in breach of its obligations

regarding site deliveries, banking, provision of a gate person, or landscaping, and the application was verging on

oppressive.

Niema Abdusemed v Lambeth London Borough Council (2016) QBD (Admin) 19/02/2016

A local authority's refusal to provide an Eritrean national with accommodation pending review of her homelessness

application was not irrational and unlawful. Even though she had been diagnosed with moderately severe to severe

Post Traumatic Stress Disorder and had been sleeping in a Mosque at night and wandering the streets by day she was

not street homeless.

Nottingham City Council v (1) Dominic Parr (2) Trevor Parr Associates Ltd (2016) UKUT 71

09/02/2016

It was lawful for the licence of a house in multiple occupation to restrict the use of a bedroom to a particular category

of occupier, such as students.

R (on the application of (1) Rachel Edwards (2) Vernica Cole (3) Yasmin Saeed (4) Marian Noworol) v Birmingham City

Council (2016) EWHC 173

A local authority had not breached its duties under the Housing Act 1996 Pt VII in processing the homeless

applications of four applicants, nor was there evidence of systemic failure in its homelessness procedures.

Herefordshire Council V Martin Rohde (2016) UKUT 39 (LC) UT (Lands) 15/01/2016

A First-tier Tribunal had erred by revoking a declaration that a property was a house of multiple occupation solely on

the basis of what it saw during an inspection of the property. The tribunal should have either confirmed or reversed

the local authority's decision to serve the declaration, not only on the basis of its own inspection, but also on the

evidence that had been available to the local authority at the time the declaration was served.

Human rights

R (on the application of John Carney) v North Lincolnshire Council (2016) QBD (Admin) 27/01/2016

A judge had been entitled to find that an anti-social behaviour order prohibiting an appellant from engaging in any

behaviour likely to cause harassment, alarm or distress to any local authority employee for five years was necessary

and proportionate. Local authority employees should be able to carry out their functions without being subjected to

threatening behaviour.

R (on the application of Barda) v Greater London Council (2015) EWHC 3584

A local authority's decision to erect fencing in a public square outside the Houses of Parliament before demonstrations

were held there had not interfered unjustifiably with the exercise of a demonstrator's rights under ECHR art.10 and

art.11.

Licencing

Essence Bars (London) Ltd (T/A Essence) (Claimant) v Wimbledon Magistrates Court (Defendant) & Royal Borough Of

Kingston Upon Thames (Interested Party) (2016) EWCA Civ 63

A district judge had erred in concluding that he had no power under the Magistrates' Courts Act 1980 s.123 to amend

an appeal notice against the revocation of a premises licence where the licence holder's solicitor had named the

licence holder's parent company on the notice. The mere fact that there were two corporate identities involved did not

mean that there was a mistake of identity that could not be rectified.

Mental health

Birmingham City Council v (1) D (by his litigation friend, the official solicitor) (2) W (2016) EWCOP 8

The confinement in a secure residential care facility of a 16-year-old who suffered from intellectual disabilities and

lacked capacity to make his own decisions was a deprivation of his liberty. While his parents had been entitled to

substitute consent for his confinement when he was younger than 16, he was now entitled to the full protection of the

ECHR art.5 and the local authority which funded and managed his placement had to apply to the court to obtain

authorisation for its continuance.

R (on the application of C) v Secretary Of State For Justice (2016) UKSC 2

There was no presumption of anonymity in civil proceedings in the High Court relating to patients detained in

psychiatric hospitals or otherwise subject to compulsory powers under the Mental Health Act 1983. In each case the

question was whether anonymity was necessary in the interests of the patient. A balance had to be struck between the

public's right to know what was going on in court and who was involved, and the risk of the patient's rehabilitation

being jeopardised by his identification.

WBC (local authority) v (1) Z (by the official solicitor as her litigation friend) (2) X (mother) (3) Y (father) (2016) EWCOP

4

A local authority had not rebutted the presumption in the Mental Capacity Act 2005 that a 20-year-old woman with

Asperger's syndrome and borderline learning disability had capacity to choose her own residence, make contacts with

others, deal with her care and litigate. In reaching that decision, the court diverged from expert opinion that the

woman was unable to respond appropriately to risk. While the opinion of an independent expert in such a case was

likely to be of very considerable importance, the decision as to capacity was a judgment for the court to make.

(1) North Yorkshire County Council (2) A Clinical Commissioning Group v (1) MAG (by the official solicitor, as his

litigation friend) (2) GC (2016) EWCOP 5

A Court of Protection judge had erred in refusing to authorise the deprivation of liberty of a man with complex needs

in his flat, which was too small to enable wheelchair use and was always locked, where there was nothing else

available offering less restriction. The judge had incorrectly considered simply whether the elements of the care

package involving a deprivation of liberty were lawful rather than asking separately whether it was in the man's best

interests to live at the property and whether the accommodation was so unsuitable as to be unlawfully provided.

Planning

R (on the application of Save Britain's Heritage) (Claimant) v (1) Liverpool City Council (Defendant) (2) Regeneration

Liverpool & Neptune In Partnership (Interested Party) (2016) EWHC 48

The first paragraph of the National Planning Practice Guidance at para.18a-036 relating to World Heritage Sites was

advisory only, whereas the second paragraph set out a clear requirement for consultation, but only where Historic

England maintained an objection and the proposal would have an adverse impact on the outstanding universal value of

the site.

Christopher Collins v (1) Secretary Of State For Communities & Local Government (2) Hampshire County Council

(2016) EWHC 5

A landowner who had imported rubble onto his land, a former quarry, so as to create an access road from which to fell

trees had not been disposing of waste. Subject to the issue of whether the rubble contained contaminated materials,

there was a substantial difference between tipping waste into a former quarry as landfill, and depositing it temporarily

on the land, where it would cease to be waste and be used as part of a process.

Stratford On Avon District Council v Persimmon Homes Ltd (2015) EWHC 3593

A local authority's application for an injunction pursuant to the Town and Country Planning Act 1990 s.187B to compel

a house builder to comply with certain planning conditions pertaining to its permission to build 85 houses was

unnecessary and disproportionate. There was insufficient evidence to show that it was in breach of its obligations

regarding site deliveries, banking, provision of a gate person, or landscaping, and the application was verging on

oppressive.

Cheshire East Borough Council v (1) Secretary Of State For Communities & Local Government (2) Harlequin (Wistaston)

Ltd (2016) QBD (Admin) 23/02/2016

A planning inspector had been entitled to grant a developer planning permission for the development of 150 dwellings

on a green gap site, as he had correctly interpreted and applied the relevant policies and weighed appropriate

considerations in the balance.

Daniel Gerber (Claimant) V Wiltshire Council (Defendant) & (1) Norrington Solar Farm Ltd (2) Terraform Power Inc

(Interested Parties) (2016) EWCA Civ 84

It had been an error to quash a grant of planning permission for a solar farm where there was no breach of legitimate

expectation and no sufficient reason for a householder's delay in bringing judicial review proceedings.

Stamatios Miaris v (1) Secretary Of State For Communities & Local Government (2) Bath & North East Somerset Council

(2016) EWCA Civ 75

A planning inspector had been correct to decide that he did not have power under the Town and Country Planning Act

1990 s.174(2)(f) to determine the planning merits in an appeal against an enforcement notice issued by the local

authority. The steps required by the notice exceeded what was necessary to remedy any injury to amenity caused by

the breach of planning control and could not be entertained without an appeal under s.174(2)(a).

Secretary Of State For Communities & Local Government V (1) South Gloucestershire Council (2) AZ (2016) EWCA Civ

74

A judge had erred in quashing a planning inspector's decision to grant planning permission for the stationing of a

mobile home on green belt land, notwithstanding serious errors in the inspector's decision. It was one of those

exceptional cases in which the court, in exercising its discretion under the Town and Country Planning Act 1990

s.288(5)(b), should have refrained from quashing a decision flawed by legal error as the decision would necessarily

have been the same if the errors had not occurred.

Smech Properties Ltd v (1) Runnymede BC (2) Crest Nicholson Operations Ltd (3) Cgnu Life Assurance Ltd

(Respondents) (2016) EWCA Civ 42

The court upheld a grant of planning permission for a mixed use development within the green belt. The planning

committee had been incorrectly advised in relation to housing need, but the judge would have reached the same

decision if she had been properly advised. There was great pressure of need for new housing and very limited options

for meeting that need and the judge had been correct to conclude that there were very special circumstances which

justified permission for development in the green belt.

R (on the application of Skelmersdale Ltd Partnership) (Claimant) v West Lancashire Borough Council (Defendant) & St

Modwen Developments (Skelmersdale) Ltd (Interested Party) (2016) EWHC 109

A condition attached to a planning permission for a new retail development to protect the long-term vitality of the

town's existing shopping centre was enforceable. It prevented the existing large retailers from occupying the new

development unless they committed to retaining their presence in the shopping centre, and that commitment, given

its formal context and the purpose of the condition, would be legally binding.

Edward Ware Homes Ltd V (1) Secretary Of State For Communities & Local Government (2) Bath & North Somerset

Council (2016) EWHC 103

A planning inspector had erred in upholding the refusal of planning permission for two residential developments on

the basis of issues not raised at the inquiry, thereby giving rise to procedural unfairness and causing the developer

material prejudice. Fairness required that parties to a planning inquiry should be aware of the points to be addressed

and have a reasonable opportunity to deal with them.

Procurement

BT Cornwall Ltd v (1) Cornwall Council (2) Cornwall Partnership NHS Foundation Trust (3) Peninsula Community Health

CIC (2015) EWHC 3755

A local authority which had entered into an agreement for the provision of telecommunications services was entitled to

terminate that agreement for material breach of its terms where the service provider had failed to meet key

performance indicators and had allowed a backlog of work to accrue. The local authority's willingness to engage with

the service provider towards resolving the issues was not to be relied on as a basis for an estoppel argument.

Rates

South Kesteven District Council v Digital Pipeline Ltd (2016) EWHC 101

In considering whether premises were wholly or mainly used for charitable purposes under the Local Government

Finance Act 1988 s.43(6), a deputy district judge had erred in placing too much weight on the fact that there was no

other activity on the premises.

Real Property

John Patrick Murphy v Lambeth London Borough Council (2016) Ch D 19/02/2016

A long lease, on its proper construction, demised only the ground floor of a flat and not the basement. The land

register was rectified to reflect that, where the registered proprietor had not been in possession of the basement, and

there were no exceptional circumstances justifying a refusal to amend the register.

Phoenix Developments (Jpj) Ltd v Lancashire County Council (2016) UKUT 38 (LC) UT (Lands) 26/01/2016

The tribunal had jurisdiction to determine compensation for land acquired by compulsory purchase, regardless of the

fact that an unexercised purchase option agreement between the landowner and acquiring local authority had already

determined a price for the land that included a sum reflecting such compensation.

Social care

R (on the application of MM) (by his mother & litigation friend, TM) v Hounslow London Borough Council (2015) EWHC

3731

A teenager with autism was unsuccessful in his challenge to the lawfulness of the local authority's assessment of both

his needs and those of his mother, who was his carer. It was reasonable for the local authority to have awaited the

outcome of the judicial review proceedings before preparing a care plan, which might have had to be quashed had the

challenge succeeded.

Legislation

We highlight new legislation of interest to local authorities from January and February 2016

Summary

Byelaws

Childcare

Devolution

Education

Employment

Environment

Governance

Gambling

Housing

Licensing

Rates

Social care

Byelaws

Byelaws (Alternative Procedure) (England) Regulations 2016 published

On 11 February 2016, the Byelaws (Alternative Procedure) (England) Regulations 2016 (SI 2016/165) were made.

Section 236 of the Local Government Act 1972 (LGA 1972) states that byelaws need to be confirmed by the Secretary

of State before they enter into force. The regulations provide an alternative procedure for the making, entering into

force and revocation of such byelaws. The alternative procedure, which removes the need for central government

confirmation, involves a two-stage process for preparing a byelaw and consulting before the new byelaw is advertised

and made. The alternative procedure will enable local authorities to resolve any objections and bring into force any

byelaw locally.

The regulations, which come into force 20 days after being made:

Prescribe the classes of byelaws to which section 236 of the LGA 1972 does not apply as numbered and

described in column 1 of the table to Schedule 1 (regulation 3).

Provide that the alternative procedure specified in regulations 5 to 12 applies only to the classes of byelaws

prescribed by regulation 3 that are made on or after the date the regulations come into force (regulation 4).

Specify the alternative procedure for the making and coming into force of byelaws (regulations 5 to 12) and

the alternative procedure for revoking the byelaws of a class prescribed by regulation 3 (regulations 13 to 17)

Childcare

The Special Guardianship (Amendment) Regulations 2016

The Special Guardianship (Amendment) Regulations 2016 (SI 2016/111) (SG(A)R 2016), were made on 2 February

2016 and came into force on 29 February 2016 (regulation 1, SG(A)R 2016). They amend the Schedule to the Special

Guardianship Regulations 2005 (SI 2005/1109), which lists the matters that a special guardianship report must

include. Any requirement (whether by court order or by written notification) to produce a report before 29 February

2016 will continue to be conducted under the original schedule (regulation 2, SG(A)R 2016). The amendment is the

result of the government's review on special guardianship, which criticised local authority special guardianship reports

as not being robust enough and resulting in children being placed with relatives who are unsuitable long-term carers.

Devolution

Cities and Local Government Devolution Act 2016 – Royal Assent: 28 January 2016

An Act to make provision for the election of mayors for the areas of, and for conferring additional functions on,

combined authorities established under Part 6 of the Local Democracy, Economic Development and Construction Act

2009; to make other provision in relation to bodies established under that Part; to make provision about local

authority governance and functions; to confer power to establish, and to make provision about, sub-national transport

bodies; and for connected purposes.

Education

Education Workforce Council (Main Functions) (Wales) (Amendment) Regulations 2016 made

On 6 January 2016, the Education Workforce Council (Main Functions) (Wales) (Amendment) Regulations 2016 (SI

2016/6) were made.

The regulations amend the Education Workforce Council (Main Functions) (Wales) Regulations 2015 (SI 2015/140),

adding two new Parts to them (3A and 4A), which govern the registration requirements for school learning support

workers and further education learning support workers respectively. The regulations will come into force on 1 April

2016.

Fourth commencement order made under the Deregulation Act 2015

On 22 December 2015, the Deregulation Act 2015 (Commencement No 4) Order 2015 (SI 2015/2074) was made,

bringing into force a provision of the Deregulation Act 2015 aimed at reducing burdens on schools.

Article 2 of the Order, which came into force on 1 January 2016, removed the requirement:

Contained in sections 110 and 111 of the School Standards and Framework Act 1998, for the governing bodies of

certain schools in England and Wales to adopt home-school agreements setting out the school's aims, values,

responsibilities and expectations of pupils and parents.

For those governing bodies to take steps to ensure that parents give their written acknowledgment and acceptance of

such agreements.

School Governance (Constitution and Federations) (England) (Amendment) Regulations 2016 laid before Parliament

On 25 February 2016, the School Governance (Constitution and Federations) (England) (Amendment) Regulations 2016

(SI 2016/204) were laid before Parliament.

The regulations amend the:

School Governance (Constitution) (England) Regulations 2012 (SI 2012/1034), by providing that where a

governor of a maintained school does not hold an enhanced criminal record certificate then the governing

body must apply for one by 1 September 2016 or within 21 days of the governor's appointment (if they were

appointed or elected on or after 1 April 2016) (regulation 2).

School Governance (Federations) (England) Regulations 2012 (SI 2012/1035), by providing that a governing

body of a federation must include two parent governors (elected by parents or appointed by the governing

body) and that in the case of a temporary governing body of two or more maintained schools who will be

federating, then the governing body must include two temporary parent governors (regulation 3).

Employment

National Minimum Wage (Amendment) Regulations 2016 published

The National Minimum Wage (Amendment) Regulations 2016 (SI/2016/68) were made on 22 January 2016 and will

come into force on 1 April 2016.

A draft of these regulations was laid before Parliament in December 2015 and has since been approved. There were no

changes to the draft regulations.

They amend Regulation 4 of the National Minimum Wage Regulations 2015 to add the National Living Wage (NLW) rate

of £7.20 an hour for workers aged 25 and over and move the remaining national minimum wage (NMW) rates (for

those under 25) to a new Regulation 4A. In the July 2015 Budget, the government announced that it would introduce

the NLW at a premium of 50 pence above the NMW rate, to take effect from April 2016.

Regulation 2 amends the National Minimum Wage Act 1998 by increasing the financial penalty payable by employers

who underpay the NMW from 100% to 200% of the underpayment due to each worker.

The Social Security (Contributions) (Amendment) Regulations 2016

Regulations were made on 3 February 2016 that define an apprentice for the purposes of the zero employer NICs rate

that will apply to earnings below the upper secondary threshold paid to apprentices under the age of 25 from 6 April

2016. The regulations are substantively the same as the draft regulations published for consultation in July 2015 but

with the addition of a further category of apprentice, namely, a person being trained pursuant to arrangements for

which the Secretary of State has secured the provision of financial resources under section 100 of the

Apprenticeships, Skills, Children and Learning Act 2009.

Environment

Secondary legislation published to support Energy Bill 2015-16 provisions on devolving consent for large onshore

wind farms to local planning authorities

The Onshore Wind Generating Stations (Exemption) (England and Wales) Order 2016 (SI 2016/21) was made on 12

January 2016 and comes into force on 1 March 2016. The government has also published a draft Infrastructure

Planning (Onshore Wind Generating Stations) Order 2016. It intends the latter Order also to come into force on 1

March 2016. Together, the two instruments support the provisions in the Energy Bill 2015-16 that will devolve

consent for large onshore wind farms over 50 megawatts to local planning authorities, instead of the Secretary of

State. The Energy Bill 2015-16 had its second reading in the House of Commons on 18 January 2016.

Well-being of Future Generations (Wales) Act: Commencement Order No 2 made

The Well-being of Future Generations (Wales) Act 2015 (Commencement No 2) Order 2016 (SI 2016/86) was made on

27 January 2016. The Order commenced a number of provisions of the Well-being of Future Generations (Wales) Act

2015 on 1 February 2016, which mainly relate to the functions of the Future Generations Commissioner for Wales. The

Order commences the rest of the Act on 1 April 2016 and 6 April 2016, which includes the well-being goals and the

sustainable development principle.

Gambling

The Legislative Reform (Exempt Lotteries) Order 2016

This Order is made under section 1 of the Legislative and Regulatory Reform Act 2006. It removes certain restrictions

that apply to exempt lotteries regulated by Parts 1 and 2 of Schedule 11 to the Gambling Act 2005.

Article 2 amends the exemption for incidental lotteries in Part 1 of Schedule 11, so that it is no longer limited to

lotteries that are incidental to a non-commercial event. The exemption now applies to lotteries which are incidental to

an event, provided that the conditions specified in that Part are satisfied. There is also no longer a requirement for the

results of the lottery to be made public while the event is taking place. Article 3 amends the exemption for “private

lotteries” (private society lotteries, work lotteries and residents’ lotteries) in Part 2 of Schedule 11.

Governance

Local Government (Standards Committees, Investigations, Dispensations and Referral) (Wales) (Amendment)

Regulations 2016 laid before NAW

The Local Government (Standards Committees, Investigations, Dispensations and Referral) (Wales) (Amendment)

Regulations 2016 (SI 2016/85) were laid before the National Assembly for Wales on 2 February 2016.

The Regulations:

Amend existing subordinate legislation as a consequence of the provisions in the Local Government

(Democracy) Wales Act 2013 and other proposals to improve the operation of the local government ethical

standards framework in Wales.

Were consulted on in draft in November 2015.

Will come into force on 1 April 2016.

Housing

Renting Homes (Wales) Bill 2015-16 receives Royal Assent

The Renting Homes (Wales) Bill 2015-16 gained Royal Assent on 18 January 2016 becoming the Renting Homes

(Wales) Act 2016 (RHWA 2016).

The main provisions will come into force on a date to be appointed by statutory instrument.

The RHWA 2016 will reform the legal basis for renting homes in Wales. If a tenancy or licence meets certain criteria, it

will be an occupation contract and subject to the provisions of the RHWA 2016.

The RHWA 2016 creates two types of occupation contract:

The standard contract (modelled on the current assured shorthold tenancy).

The secure contract (modelled on the current secure tenancy issued by local authorities).

These new contracts will incorporate certain fundamental terms as set out in the RHWA 2016, supplementary terms (to

be set out in regulations made by the Welsh Ministers), and any additional terms agreed by landlords and contract-

holders.

It should also be noted that the RHWA 2016 is retrospective. When it comes into force, all existing tenancies and

licences that meet the criteria will become occupation contracts and subject to the provisions of the RHWA 2016.

The RHWA 2016 requires landlords to issue a written statement of the occupation contract which sets out the parties'

rights and responsibilities. The Welsh Ministers will provide free model contracts to assist with this.

The new duties include obligations on landlords to carry out repairs and ensure properties are fit for human

habitation.

The RHWA 2016 also contains detailed provisions on terminating occupation contracts. For example, it aims to protect

people from being evicted simply for complaining about a property's condition.

The Self-build and Custom Housebuilding Act 2015 (Commencement) Regulations 2016

These regulations bring into force the provisions of the Self-build and Custom Housebuilding Act 2015 (c.17) that are

not yet in force on 1st April 2016. Section 6 of the Act commenced on Royal Assent. The remaining provisions are

sections 1 to 5 of, and the Schedule to, the Act. The Act places duties on certain public authorities to keep a register

of individuals and associations of individuals who are seeking to acquire serviced plots of land in the authority’s area

in order to bring forward self-build and custom housebuilding projects, and to have regard to that register in carrying

out their planning and other functions. The Schedule to the Act enables the making of Regulations that make provision

in relation to registers.

Licensing

SI 2016/20 - The Licensing Act 2003 (Permitted Temporary Activities) (Notices) (Amendment) Regulations 2016

These Regulations substitute the form in the Schedule to these Regulations for the form in Schedule 1 to the Licensing

Act 2003 (Permitted Temporary Activities) (Notices) Regulations 2005 (prescribed form of temporary event notice). The

form of temporary event notice now refers to the maximum number of temporary events permitted per year as 15

rather than 12 in order to reflect a change in the law brought about by section 68 of the Deregulation Act 2015 (c. 20).

Rates

The Non-Domestic Rating (Small Business Rate Relief) (England) (Amendment) Order 2016

This Order amends the Non-Domestic Rating (Small Business Rate Relief) (England) Order 2012 (S.I. 2012/148) to

make provision for a continued temporary increase in the level of small business rate relief for the financial year

beginning on 1st April 2016. The temporary increase would otherwise have ended on 31st March 2016.

Social care

Regulation and Inspection of Social Care (Wales) Bill 2015-16 receives Royal Assent

On 18 January 2016, the Regulation and Inspection of Social Care (Wales) Bill 2015-16 was granted Royal Assent to

become the Regulation and Inspection of Social Care (Wales) Act 2016.

The Act:

Provides for the registration and regulation of those providing care home services, secure accommodation services,

residential family centre services, adoption services, fostering services, adult placement services, advocacy services

and domiciliary support services. It also provides for the registration, regulation and training of social care workers.

These measures are intended to reform the existing regulatory regime surrounding care and support services.

Amends the Social Services and Well-being (Wales) Act 2014 in connection with the regulation of the social

services functions of local authorities.

Renames the Care Council for Wales as Social Care Wales.

A majority of the provisions of the Act will come into force on a day appointed by the Welsh Ministers.

This update does not attempt to provide a full analysis of those matters with which it deals and is provided for general information

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