Benefits of Public Service Legal Work

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by Meera Patel, Trainee Solicitor

Furthering the Public Good

One of the main and most important reason why lawyers work in house for local authorities is because it gives them an opportunity to become involved in decisions affecting their local community.

As an in-house local authority lawyer you support an important public cause – equal access to justice for local people and groups. Such a cause can provide a feeling of personal satisfaction and achievement that you might not gain defending large corporations in the private practice sector.

Better Work Life Balance

I have worked for the public sector for six years and not all of those in the legal sector. One of the most important attributes for me and a key decision why I applied for training contracts within local authorities was because of the emphasis on a work life balance for all employees.

There are no fixed nine-to-five work days. Employees have flexible schedules and opportunities to work from home and/or part-time hours. Such practices are common for in-house public sector lawyers, especially those at North West Leicestershire District Council.

Public sector government lawyers are not under the same pressure as private practice lawyers to meet high billable hours or fee targets. The work culture is often more relaxed as the focus is on providing a solution based service rather than profit.

Valuable Experience and Training Mentoring and Networking Opportunities

As a Trainee Solicitor at North West Leicestershire District Council, an authority that is a part of the East Midlands Lawshare consortium and has valuable connections with other local authorities, fire & rescue authorities, universities, national parks, NHS trusts and town and parish councils, I have had a lot of exposure to training opportunities, networking events and mentoring opportunities. Such opportunities have helped me to build relations with a number of professionals including public sector lawyers and lawyers within private practice, whom I can turn to for advice and are readily available to provide training and support.

The lawyers at North West Leicestershire District Council have the support of senior staff to attend training sessions both within the EM Lawshare framework and other private companies to further their professional development.

Whilst working at North West Leicestershire District Council I have had the pleasure of working closely with team members to market our services externally given the current clients’ needs and having to be more commercially driven. NWLDC have been very forward thinking in their approach as a Local Authority and implemented NWL Legal to ensure that we are meeting the needs of our clients whilst understanding the remits we work within.

Do I Need a Public Consultation?

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This note provides guidance to Officers on when they should carry out a public consultation when they are making changes to services or implementing a project. It also sets out the principles that need to be followed in order for a consultation to be appropriate and lawful.

Do I need to consult?

There are three stages to this question:

1. Is there a specific duty to consult that is set out in the legislation and/or statutory guidance that I am working under? For example consultation is required on:

a) the Council’s proposed budget (Local Government Finance Act 1992)

b) Matters of Housing Management (s105 Housing Act 1985)

c) Public Sector Equality Duty (s149 Equality Act 2010)

If a consultation is required, the people specified in the legislation as needing to be consulted must be consulted.

2.Does the “Best Value” duty to consult apply? Under s3 of the Local Government Act 1999 and Best Value Guidance, a consultation is needed if:

a) the Council is making changes (and in particular reductions) to the services being delivered;

b) the Council is reducing or ending funding to an external organisation

If a consultation is required then representatives of tax/rate payers, services users and interested parties must be consulted.

3.Is a consultation needed in the interests of fairness? For example:

a) Have we previously said that we would consult before doing something?

b) Have we consulted in the past before doing the same thing?

c) Will the impact of the decision or project be particularly serious on one location or section of the public?

d) Is this a significant change to the way the Council has done things in the past?

If a consultation is needed, the affected people or bodies need to be consulted.

What makes a good (and lawful) consultation?

The Courts have given some guiding principles to follow in order to ensure a consultation is satisfactory. These are known as the Gunning Principles[1].  These principles are:

a) The consultation must be at a time when proposals are still at a formative stage. It must not be a “box-ticking exercise” which cannot impact on the decision being made.

b) The proposer must give sufficient information to allow intelligent consideration and response.

c) Adequate time must be given for consideration and response.

d) The product of consultation must be conscientiously taken into account in finalising any decision proposals.

[1] R v London Borough of Brent, ex p Gunning [1985] LGR 168

Do I Need an Officer Decision Record?

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by Louis Sebastian, Legal Services Team Manager and Deputy Monitoring Officer

I am often asked by officers carrying out Council business whether they need to complete an Officer Decision Record (ODR). This article looks at what an ODR is and when it is needed.

What is an Officer Decision Record?

ODRs come from the Openness of Local Government Bodies Regulations 2014 (Reg. 7) which deals with the recording of decisions made by local government officers on behalf of their council. The regulations state that decisions need to be recorded when:

  1. The Decision would have otherwise been taken by the relevant government body, to committee, sub-committee etc. but has been delegated to an officer; and
  2. The decision is to
    a. Grant a permission or licence;
    b. Affects the right of an individual; or
    c. Award a contract/incur an expenditure which matierally affects that relevant local government body’s financial position

The ODR must contain the following information:

i. the date of the decision;
ii. a description of the decision with reasons for taking it;
iii. details of alternative options, if any, considered and rejected; and
iv. if the decision is taken under a specific, express delegation by a committee, the names of any member of that committee (if any) who declared of interest in relation to the decision.

The key content of a notice is that it contains the reasons for the decision.

When do I need one?

Matters covered by 1. are relatively self-explanatory. In short this includes all decisions made by officers on behalf of the Council. This will cover pretty much everything so it is the limbs of 2. that will determine whether an ODR is needed.

Granting a Permission or a Licence
Where a permission or licence is granted by the Councils (for example Planning Permission, Taxi Licence or Premises Licence), a written record must be made. However, where the legislation under which the licence in granted requires a written record setting out the date and details of the decision, no additional ODR is needed.

Affecting the Right of an Individual
This varies depending on the situation but there is some guidance from case law. The leading case is the Newey case in which a decision that led to the erection of scaffolding and plywood in front of a neighbouring property which blocked light into the property for 60 weeks was held to affect the rights of an individual. We are therefore talking about decisions that have quite significant impacts on the rights of individuals. More common examples might be the decision to erect a new CCTV camera in a particular place or the decision to adopt a Neighbourhood Plan following a referendum.

Award a Contract/Incur Expenditure
There is no case law or guidance as to what amount or what type of spending constitutes a material effect on that council’s financial position and is it is up to each local authority to form its own – reasonable – view. North West Leicestershire District Council’s approach is to look at the financial authorisation thresholds in its Contract Procedure Rules. NWLDC has decided that contracts/expenditure which require approval from Team Manager level or above (i.e. £10,000 or more) constitutes a “material effect” and so require an ODR.

The flowchart below summarises the ODR thought process at NWLDC.

Closure Orders, Anti-Social Behaviour and County Lines

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What does County Lines mean?

County lines refers to the movement of gangs who are affiliated with drugs moving from large cities to small towns in order to expand their operations. This often results in violence to drive out members of the local community and the exploitation of young and vulnerable individuals, it can also lead to problems with cuckooing. (Cuckooing refers to the process by which a property – generally that of a vulnerable occupier, is taken over by drug gangs who use the property as a base for distribution. The occupier is often not aware of what is happening or too afraid to speak out.)

Tackling County Lines and Anti-Social Behaviour

In 2018 the North West Leicestershire Police, North West Leicestershire District Council (NWLDC) and other partners identified a link between drug activity and anti-social behaviour within the community. Intelligence sharing identified that individuals from Nottingham, Coventry, London and Leicester were being sent into the local community. This led to Operation Camel.

In September 2018 NWLDC and the Police set a new record for the number of closure orders obtained and executed in any one day.

In total Operation Camel has to date resulted in 14 closure orders, 11 evictions, 11 warrants and 19 arrests, providing a united message from each key authority that anti-social behaviour and drug related behaviour will not be tolerated within the local community and the protection of vulnerable individuals is a key priority.

What are Closure Orders?

Since October 2014 police and local authorities have had the ability to close premises which are associated with nuisance and disorder pursuant to part 4 of the Anti-Social Behaviour, Crime and Policing Act 2014 (ASBCPA 2014).

Anti-social behaviour is a significant and growing issue for local authorities and the wider public. The tools to tackle anti-social behaviour have been evolving over the last few years. Part 4 of the ASBCPA 2014 gives local authorities and the police powers to quickly close premises that are being used, or are likely to be used to commit nuisance or disorder.

There are two stages to the Act – stage 1 is a Closure Notice and stage 2 is a Closure Order.

Stage 1 – Closure Notices

Before exercising closure powers under the ASBCPA 2014 the Applicant (either a local authority or the police) must be satisfied that either;

  • the use of the premises has resulted, or if a closure order is not issued is likely soon to result, in nuisance to members of the public, or
  • there has been, or if a closure order is not issued is likely soon to be, disorder near those premises associated with the use of those premises, and
  • the closure notice is necessary to prevent the nuisance or disorder from continuing, recurring or occurring (Section 76 ASBCPA 2014).

Closure notices can be used as a preventative measure not just in cases of existing anti-social behaviour. For example, if police gathered intelligence to suggest that disorder was likely to occur in the vicinity of a nightclub on a specific night or over a specific period then they could issue a closure notice as a way of preventing the anti-social behaviour from happening.

Before issuing a Closure Notice the Applicant should make reasonable efforts to inform those living in, and anyone who has control or responsibility of, the premises that a Closure Notice is going to be served (section 76(6) ASBCPA 2014). In addition before issuing a Closure Notice the Applicant must consult any body or individual that they think it would be appropriate to consult. If the Applicant is the Police they should consult with the local authority and vice versa.

The information that should be contained in the Closure Notice is set out in section 76(5) ASBCPA 2014.

Stage 2 – Closure Orders

An application for a Closure Order must be heard in the Magistrates Court within 48 hours of the Closure Notice being served unless the Notice has been cancelled under section 78. The court needs to be satisfied that one of the following applies:

  • that a person has engaged, or if the Closure Order is not made is likely to engage, in disorderly, offensive or criminal behaviour on the premises
  • the use of a particular premises has resulted, or if the Closure Order is not made is likely to result, in serious nuisance to members of the public, or
  • there has been, or if the Closure Order is not made is likely to be, disorder near those premises associated with the use of those premises and
  • the Closure Order is necessary to prevent the behaviour, nuisance or disorder from continuing, recurring or occurring (Section 80(5) ASBCPA 2014).

A Closure Order prohibits access to the premises for the period specified on the Order – a maximum (initially) of 3 months. The 3 months can be extended, upon evidence, for a further (maximum) of 3 months. 

The introduction of the ASBCPA 2014 provided more flexibility by allowing the Order to prohibit access for everyone (i.e. a full Closure Order), for those named or for everyone but those named in the Order (i.e. a partial Closure Order)(Section 80(7) ASBCP 2014).

Once the Order has been made and served in accordance with the Act and the premises has been closed and secured a person commits an offence if they:

  • obstruct anyone serving a Closure Order or anyone trying to secure the premises, or
  • remain at or enter the premises subject to the Closure Order

The offender is liable on summary conviction to imprisonment, and/or an unlimited fine (Section 86 ASBCPA 2014).

Post Closure Order – Possession Proceedings

Within 3 months of a Closure Order ending an Applicant can apply to the court for possession under the Housing Act 1985, section 84(A), Condition 4 which is a mandatory ground.

NWLDC successfully relied on this mandatory ground to gain possession from all of the NWLDC tenants who were subject to Closure Orders.

The Partnership between NWLDC and the NWL Police

The Police and NWLDC’s Legal, Community Safety and Housing Teams worked closely and shared staff and resources to achieve the aims of Operation Camel.

The efficient and close working partnership has played a huge role in breaking the cycle and has produced a clear and united message that anti-social behaviour and drug related activity will not be tolerated in the District of North West Leicestershire.

Three ways through the labyrinth of functions and responsibilities

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Louis Sebastian

By Louis Sebastian, Team Manager, NWL Legal

Changes brought in by the Local Government Act 2000  and the Local Authorities (Functions and Responsibilities) (England) Regulations 2000 were designed to streamline local authority decision-making by mimicking central government, but they created a labyrinth of responsibilities that Councils are still struggling to negotiate.

By putting the power for specified decisions in the hands of council Executives it was intended that there would be fewer layers of authority to negotiate before getting to a conclusion, and greater accountability.

This was a reasonable proposition, but as with any reorganisation, new complexities have been created, and many local authorities still struggle with correctly allocating functions and responsibilities. That matters because an error in specifying who should take a given decision could lead to that decision being challenged and overturned.

How did we get here?

Councils themselves have certain powers exercised through full Council meetings, and they have others that fall to a Leader or elected Mayor and their Cabinet. What the 2000 Regulations do is state how powers are split between the two. Some can only be exercised by the full Council and some by the Executive, and certain powers are shared so Cabinet makes proposals that are ratified by the full Council. It was an exercise in making local government look like national government to split up decision making to ensure some accountability. Of course, as the party with a majority gets to form the Cabinet and controls the Council, the difference looks somewhat academic, particularly from a political standpoint. What is important, however, is that decisions are made in the proper place, otherwise they could be challenged.

Local authorities know this, but it is often far from clear what decisions, or even what aspects of certain decisions, should be processed where. I am often asked, “Is this a Council or an Executive decision,” by local authorities who are naturally keen to avoid decisions being challenged down the line for having been made improperly.

There have been a few cases of that happening. Just because it hasn’t happened to a Council yet doesn’t mean the process is being done well. It could have been done incorrectly for a long time without being noticed until someone wants to challenge a particular decision. It often happens in a planning situation because a lot of planning powers are contained on the Council side of the fence and delegated to officers (who also carry out executive functions). If it starts looking like the Cabinet are making the decisions, developers have enough at stake – and deep enough pockets – to mount a challenge.

One problem area is when a local authority makes a changes to its Budget in-year without getting the decision ratified by the Council. Delivering on the Budget is the Executive’s responsibility with support from all the Officers in the Council, but decisions about the Budget have to be approved by the full Council. If for example, a Council is outsourcing its leisure centres, deciding to award a contract to a particular supplier only needs to be decided by the Executive but because it’s such a big contract it affects the Budget so the Council has to approve the changes that impact the Budget. This is an example of a decision that spans both functions.

If you are not switched on and thinking of the big picture, you could be caught out. Outsourcing is always contentious. It increases the risk of a challenge. Equally, it is not the full Council’s job to award the contract or to decide to award the contract. So Officers need to report differently on the matter to the Cabinet and the Council because each only has the power to approve different elements of the overall decision.

The confusion that many Councils have with the Regulations comes from a sense that there is a waterfall of authority with powers coming from statute and trickling down. Local authorities are creatures of statute so that’s an idea that it’s hard for them to change. But instead of from statute to council to cabinet to officers, the flow of power is actually from statute to council or cabinet and from that stage to officers.

So, for example, a council’s CEO could find him or herself executing two functions from two different bodies related to the same overall matter.

Three keys to unlocking the challenge

In my experience of helping local authorities review their approach to functions and responsibilities under the 2000 Act, there are three areas where you nail down the principles in practice.

  1. A written delegation of powers: The way to avoid problems on a day-to-day basis is to have a clear and written delegation of powers that forms part of your constitution. So if you are a senior Council officer, you know where the power for any given decision rests – whether it’s a Council or Cabinet power – and whether or not you have the authority to make decisions using that power. This may be the case if certain decisions have been delegated to an officer of appropriate seniority. Higher profile or higher value decisions will be retained by the Council or Cabinet.
  1. Establish the delegation thresholds: It’s important to set out what the thresholds are in terms of value or profile (political sensitivity or geographic reach) so that officers know when they can take decisions and when to refer them to the Cabinet or Council or both.
  1. Interpretation of the Regulations: Pay close attention to tricky questions or decisions. How you decide to interpret the Regulations will help to set a protocol for similar awkward situations in future so it’s important to get it right.

In my experience of providing guidance to local authorities, it can help enormously to get a third party, expert opinion on individual questions, and to work with consultants to carry out reviews of how delegation is happening and identify any problems. Third party expertise is also useful when drawing up, or updating, written delegation of powers documents.

 

Penalty Clauses in Employment Agency Contracts

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New IR35 Rules and Public Sector Duty to Enforce

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