Article by Peter Oldham KC.
This article
deals briefly with various issues (amongst many) that are of concern to LAs
about the Coronavirus crisis and the Coronavirus Bill.
The article has
the following sections:-
(1) Member
meetings
(2) Disqualification
under s 85 of the LGA 1972 for six months’ non-attendance
(3) Delegation, urgency procedures and the Civil Contingencies Act 2004
(4) Coronavirus
Bill – main effects for LAs
(5) Coronavirus Bill – commencement
(6) Coronavirus
Bill – provisions varying the Care Act
(7) Coronavirus Bill – education and childcare
(8) Coronavirus
Bill – emergency volunteering leave
(9) Coronavirus
Bill – cremation
(10)
Procurement and state aid
(11) Guidance
round-up
(1) Council meetings
Hoped for
legislation permitting and regulating remote member meetings is still awaited.
(2) Disqualification under s 85 of the LGA 1972 for six months’ non-attendance
This rule
has not been lifted. Disapplication (prior
to the end of the six month period) appears to be an executive function under
the Functions and Responsibilities Regs 2000.
Watch out
for the caselaw on different Northern Irish provisions (Re Neeson and Re
Hogan) – time in England runs from the member’s last attendance (not
absence).
(3) Delegation, urgency procedures and the Civil Contingencies Act 2004
LAs will be
considering their schemes of delegation and urgency procedures, and whether
they need to be amended – if an appropriate meeting to change them can be held.
Possibly legislation may intervene to assist.
They will also be considering plans and protocols
under the Civil Contingencies Act 2004 and Civil Contingencies Act 2004
(Contingency Planning) Regulations 2005, including their Local Resilience Forum.
(4) Coronavirus Bill – main effects for LAs
These are, or at least include:-
– scheduled elections postponed to May 2021; SoS can
postpone casual vacancy polls till May 2021
– lifting of duties under the Care Act 2014, and
delaying CHC assessments
– SoS’s power of direction over education and
childcare systems
– emergency registration of social workers and health
professionals
– LAs to
identify emergency volunteer leave opportunities
– relaxation of registration of deaths and
still-births
– regulation of disposal of bodies
– no jury in
coronavirus coroner inquests
(5) Coronavirus Bill – commencement
2nd and possibly 3rd reading on
Monday 23rd March
Under cl 73, the Bill comes into effect on Royal
Assent, save for provisions which have effect as SoS provides – including the
social services provisions
(6) Coronavirus Bill – provisions varying the Care Act
Cl 14/Sch 11 – the following is a simplified version
of the main effects:-
Lifting of ss 9/10/58/59/60/61/63/64 duties to assess
care/support for adults, those approaching 18 and carers
Lifting of duty to comply with s 13 duty to decide
whether needs meet eligibility criteria
Lifting of s 17 duty to assess financial resources,
coupled with a bar on charging if no assessment takes place. The LA can assess
and charge retrospectively
Lifting of ss 24/25/27 duties to prepare/review care
and support plans
The duty to provide under s 18 is given a baseline of
compliance with the ECHR
BUT – while NHS gets indemnification, LAs do not
(7) Coronavirus Bill – education and childcare
Cls 35-36 and Schs 15-16 – SoS can direct temporary
closure of education and childcare settings, and can also “give directions
requiring the provision, or continuing provision, of education, training and
childcare”. During a period of closure, the duty to educate otherwise (EA
1996, s 19) does not apply.
(8) Coronavirus Bill – emergency volunteering leave (“EVL”)
The particular issue for LAs is their designation as
“appropriate authorities” in the scheme for EVL, which is as follows.
Cl 7 and Sched 6 give a right to EVL: a worker can be
absent from work for the period specified in an emergency volunteering certificate
(“EVC”) if, no later than 3 days before the first day of the period specified
in the EVC, they give notice to their employer of their intention to be absent
for the period in the EVC, and give the employer a copy.
The EVC is a document issued by “an appropriate
authority” certifying that the worker has been approved by it as an emergency
volunteer in health or social care and will be acting as such in the period
specified in the EVC. “Appropriate authorities” in England include SoS, the NHS
Commissioning Board, and local authorities.
An EVC “is a document issued by an appropriate
authority certifying that the worker— (a) has been approved by the authority as
an emergency volunteer in health or social care, and (b) will be acting as an
emergency volunteer in health or social care from the date, and for the period,
specified in the certificate.”
The EVC may specify two, three or four consecutive
weeks within a single volunteering period.
A volunteering period is a period of 16 weeks after the right under the
Bill comes into force and each period of 16 weeks thereafter, unless shortened
by SoS in regulations. A worker may take EVL only once in the same volunteering
period.
The Government’s “Summary of Impacts” suggests that
the Government may expect LAs to be the main responder in certifying workers:-
“Impact on
Local Authorities – the policy requires LAs across the UK to identify volunteer
social care opportunities and to match these opportunities to volunteers coming
forward. This may add additional burdens to the work that LAs are doing in
response to the outbreak. HM Government will provide detailed guidance for LAs
to follow and will design a simple system in collaboration with them that is
easy to administer. Additional funding may also be required.”
(9) Coronavirus Bill – cremation
Cl 56 of the Bill gives effect to Sch 27 – powers to
facilitate the transportation, storage and disposal of dead bodies and human
remains.
Under Sch 27, SoS can designate a LA if s/he thinks it
cannot cope with dead bodies within its area. The duty under the Public Health
(Control of Disease) Act 1984 not to cremate against the deceased’s wishes does
not apply to a designated LA.
Designation would not in itself oblige LAs to cremate (though SoS also has a power to direct them to do so).
(10) Procurement
There is a Procurement Policy Note – Responding to
COVID-19 at https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/873521/PPN_01-20_-_Responding_to_COVID19.v5__1_.pdf
It says:-
“6. This PPN
and associated guidance covers options that may be considered in relation to
procurements under the Public Contract Regulations 2015 (for the current
financial thresholds, see PPN 06/19):
● direct
award due to extreme urgency (regulation 32(2)(c));
● direct
award due to absence of competition or protection of exclusive rights;
● call off
from an existing framework agreement or dynamic purchasing system;
● call for
competition using a standard procedure with accelerated timescales;
● extending
or modifying a contract during its term.
7.
Contracting authorities procuring under … the Utilities Contracts Regulations
2016 and the Concession Contracts Regulations 2016 will need to check similar
provisions in those regulations.
8. The
COVID-19 outbreak is likely to give rise to supply chain disruption and
contracting authorities may need to take action in response to supplier claims
of ‘force majeure’ or contract ‘frustration’. These and other issues will be
covered in future PPNs.”
The European
Commission is considering proposals for a temporary expansion of categories of
approved state aid. Their precise scope is not yet clear.
(11) Government guidance round-up
There is now a great deal of Government guidance, much of it informal as yet but clearly intended to be followed, and other Government material related to the Coronavirus Bill. It is growing by the hour. The following list (under various headings) is not complete.
General
Statement of support from the Minister
“Coronavirus Bill – Summary of Impacts”
Link: https://www.gov.uk/government/publications/coronavirus-bill-summary-of-impacts
“Guidance: what the Coronavirus Bill will do”
Explanatory notes to the Bill
Link: https://publications.parliament.uk/pa/bills/cbill/58-01/0122/en/20122en.pdf
Social care
Responding to COVID-19: the ethical framework for adult social care
COVID-19: guidance on residential care provision
COVID-19: guidance for supported living provision
COVID-19: guidance on home care provision
Guidance on shielding and protecting people defined on medical grounds as extremely vulnerable from COVID-19
Housing and day centres
COVID-19: guidance for hostel or day centre providers of services for people experiencing rough sleeping
Press release – Complete ban on evictions and additional protection for renters
Link: https://www.gov.uk/government/news/complete-ban-on-evictions-and-additional-protection-for-renters
Education
Guidance for schools, childcare providers, colleges and local authorities in England on maintaining educational provision
COVID-19: guidance for education settings
COVID-19: free school meals guidance for schools
Coronavirus (COVID-19): guidance on isolation for residential educational settings
Business rates
Business Rates Expanded Retail Discount 2020/21: Coronavirus Response – Local Authority Guidance
Procurement
Procurement Policy Note – Responding to COVID-19
