Some thoughts on Local Authorities and Coronavirus

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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

https://www.gov.uk/government/news/robert-jenrick-reaffirms-support-for-councils-in-their-coronavirus-response

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

https://www.gov.uk/government/publications/coronavirus-bill-what-it-will-do/what-the-coronavirus-bill-will-do

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 QC, 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.