This note sets out some information and personal views about local authority decision making in the light of the current crisis.
Member meetings
On 16th
March the Local Government Secretary, Robert Jenrick MP, announced that the government will consider bringing forward legislation to
remove the requirement for annual LA meetings to take place in person and to
allow LA committee meetings to be held virtually for a temporary period. A
distinction is being made between annual meetings and other meetings, at least
currently.
The full announcement covering this and other matters is at
The sixth month rule under LGA 1972 s 85 and dispensations
Meanwhile, authorities will be conscious of the 6 month attendance rule in s 85 of the LGA 1972. Members who had planned to attend meetings to ensure compliance may now fall foul of this rule if they are unable to, or choose not to. Failure to comply with the 6 month rule leads to a declaration of vacancy under s 86. S 85 contains an exemption where “the failure was due to some reason approved by the authority before the expiry of that period … .”
Note that
there is Northern Irish caselaw about the running of time under equivalent
provisions, and this will apply to s 85.
Urgency
Circumstances
may arise where the urgency provisions under an LA’s constitution have to be
invoked.
Changes to the law on LA’s duties
Robert
Jenrick said on 16th March
“- Councils will be able to use their discretion on deadlines for Freedom of Information requests
The deadline for local government financial audits will be
extended to 30 September 2020.”
On 17th
March, the Government announced that the forthcoming Coronavirus Bill, as
relevant to LAs and public health partners, will:-
“- enable existing mental health legislation powers to detain
and treat patients who need urgent treatment for a mental health disorder and
are a risk to themselves or others, to be implemented using just one doctor’s
opinion (rather than the current 2). This will ensure that those who were a
risk to themselves or others would still get the treatment they need, when
fewer doctors are available to undertake this function
– temporarily allow extension or removal of time limits in
mental health legislation to allow for greater flexibility where services are
less able to respond. These temporary changes would be brought in only in the
instance that staff numbers were severely adversely affected during the
pandemic period and provide some flexibility to help support the continued safe
running of services under the Mental Health Act
– allow NHS providers to delay undertaking the assessment process
for NHS continuing healthcare for individuals being discharged from hospital
until after the emergency period has ended
– make changes to the Care Act 2014 in England and the Social
Services and Well-being (Wales) Act 2014 to enable local authorities to
prioritise the services they offer in order to ensure the most urgent and
serious care needs are met, even if this means not meeting everyone’s assessed
needs in full or delaying some assessments. During a pandemic, a lot of people
who work in health and social care could be off sick or may need to care for
loved ones. This could mean that local authorities, which are responsible for
social care, may not be able to do all the things they are usually required to
do
Local authorities will still be expected to do as much as
they can to comply with their duties to meet needs during this period and these
amendments would not remove the duty of care they have towards an individual’s
risk of serious neglect or harm.
These powers would only be used if demand pressures and
workforce illness during the pandemic meant that local authorities were at
imminent risk of failing to fulfil their duties and only last the duration of
the emergency. It would ensure that local authorities will continue to be able
to deliver the best possible care services during the peak and to protect the
lives of the most vulnerable members of society.
…
– provide powers to require educational institutions or
childcare providers to stay open or relax some requirements around education legislation
in order to help these institutions run effectively during the event of an
emergency. This could include reducing teacher ratios, adapting school meal
standards and relaxing provisions for those with special educational needs.
This will ensure that children, young people and those who work with them
remain safe, while minimising disruption to everyday life and progression to
further and higher education or employment by ensuring schools have the
flexibility and support they need to respond pragmatically to the changing
situation.
…
The bill intends to make changes to:
…
– expand the list of people who can register a death to
include funeral directors acting on behalf of the family
– enable electronic transmission of documents that currently
have to be physically presented in order to certify the registration of a death
– remove the need for a second confirmatory medical
certificate in order for a cremation to take place
…
If the scientific advice indicates that the number of people who
might die from COVID-19 is likely to significantly exceed the capacity locally
to manage the deceased and other contingency measures have been deployed, local
government will have the ability to take control of a component or components
of the death management process in their area.
For example, local authorities may choose to direct local
actors such as funeral directors, mortuaries owners, crematoriums owners and
others, to streamline the death management process. This may include an
increase in the operating times of crematoriums, directing companies to use
their vehicles to move bodies, or directing others not directly involved in the
funeral sector, to provide necessary support.
The full announcement is at
Consultation?
LAs may have
to divert resources and change service delivery in ways which might normally be
the subject of prior public consultation.
Where the coronavirus means that the LA has to make decisions with a view to the immediate preservation or protection of life and health, public consultation is likely to be positively dangerous and any time delay could lead the LA into breaching substantive duties towards service users. Where a duty to consult might otherwise arise at common law (and LAs frequently choose consult when no duty arises in any event) the duty will surely give way to the need to take immediate action to protect life and health.
Where
proposed action of this nature comes up against a statutory duty to consult, it
is to be hoped that legislation will remove that requirement. LAs should inform
the MHCLG of such provisions which they fear may inhibit them taking urgent
action, and seek guidance or advice.
Have regard duties?
Many
emergency actions will be in areas where there are have regard duties – for
instance, equalities impacts.
Taking that example, the duty is to have “due” regard to equalities implications (s 149 of the Equality Act 2010). In the case of urgent decisions to preserve life and health, there is likely to be little or no time to consider equalities implications. The regard that is “due” will vary according to circumstances. Note Davis LJ in the library closure case of Bailey v Brent LBC [2011] EWCA Civ 1586 (in very different circumstances) stated obiter:-
“91 … I was also initially rather disconcerted by the
emphasis placed in the opening responses of Miss Laing KC, on behalf of the
council, to the effect that, in an appropriate case, “due regard” may
legitimately involve no regard. I can certainly see some situations where that
might be so …. ”
When
people’s lives are at stake, members and officers should clearly not delay
decision making. If they are able to
bear in mind possible equalities implications at a general level, while not
delaying, so much the better.
When the
crisis is over, LAs may have the opportunity to revisit decisions taken
urgently. That could be the point at which to consider the future direction of
policies in the light of fuller consideration of have regard duties and other
relevant information.
