Thursday marks a key milestone in the history of local government lawyers. John Emms (former solicitor to the council at Kirklees MBC) will publish his book Local Lawyers: Public Practice. As Solicitors in Local Government merges with its chief officer counterpart, the Association of Council Secretaries and Solicitors, the book traces the history of the local legal eagles’ professional association and its personalities, from its 1947 foundation as the Local Government Legal Society to recent ‘interesting times’.
Local government lawyers should expect some fascinating facts, including answers to some burning questions, including: John will also be speaking about the book at the annual local government lawyers’ weekend school, which takes place at the University of Warwick from 21-24 March. To buy a copy (£9.95 plus £2.75 postage and packing) contact John Emms at firstname.lastname@example.org.
- Why did Dame Sybil Thorndike turn up to a meeting of local government lawyers with a famous ballerina and two radio comics? And
- For whom did pig-slaughtering form part of his legal training?
Care home fees revisited
A victory for local government on 15 February, when Northumberland County Council saw off a challenge to its process for setting care home fee rates. This contended (among other things) that the council had failed to inform itself of the costs to care home operators of providing services before setting its rates, and so acted contrary to relevant guidance. However, this, along with various other contentions, was roundly rejected by Supperstone J in Care North East Northumberland v Northumberland County Council  EWHC 234 (Admin).
Formal statutory guidance (in Local Authority Circular (2004)20) indicates that: ‘In setting and reviewing their usual costs, councils should have due regard to the actual costs of providing care and other local factors.’ Apart from this guidance, in October 2001 the Department of Health issued ‘an agreement between the statutory and the independent social care, health care and housing sectors’ entitled Building Capacity and Partnership in Care. This indicated that ‘fee setting must take into account the legitimate current and future costs faced by providers as well as the factors that affect those costs, and the potential for improved performance and more cost-effective ways of working’.
However, in the council’s view, Building Capacity was advice issued ‘at a time when both policy and public sector finances were different, and… while it still has some value… it is now reasonable to depart from its advice, or at least from the way in which the county council and others interpreted that advice in the last decade’.
Supperstone J took the view that the council was indeed entitled to depart from Building Capacity for the reasons given. He indicated that the ‘guidance was taken into account and clear reasons were given by the council for departing, in so far as it did, from it’. And those reasons were ‘plainly rational’. The court was also on the evidence ‘entirely satisfied that the council did have due regard to the actual costs of care as required by the circular’. The other heads of challenge similarly fell.
So, in addition, the council was found to have engaged genuinely and properly in the consultation process, and the allegation that the council had abused its dominant position and acted in breach of relevant statutory directions and guidance had also not been made out. If this decision endures, other authorities will no doubt be considering it closely, as they endeavour in the present financial context to align relevant budgets with statutory requirements.
SRA relaxes charity charging rule
Although local government solicitors may act for charities, they must currently do so free of charge – so provides Practice Framework Rule (PFR) 4.15(e). Lawyers in local government have seen this as unnecessarily obstructive and counter-productive, particularly in the present financial climate, and have been pressing for its removal.
Their opportunity came with the recent ‘red tape initiative’ of the Solicitors Regulation Authority. This aims to remove unnecessary regulations and simplify processes. As a starter, SRA consulted on 10 proposals, one of which was to amend PFR 4.15(e) to allow local government in-house solicitors to act for charities and make a charge for both contentious and non-contentious work.
On 27 February, the SRA board accepted a recommendation accordingly; that is, to enable local government solicitors to charge charities ‘whose objects relate wholly or partly’ to the employer authority’s area. The other nine proposals were also accepted. All will now go before the Legal Services Board.
During consultation, the Law Society questioned the local government proposal, arguing that this would seem to enable ‘local government in-house solicitors… to compete with private practitioners, without entity regulation, in areas where previously this would not have been possible’. And this ‘suggests that local government in-house solicitors will be at an advantage to firms in private practice, who have higher regulatory costs and burdens; it is unclear why this should be the case’. But the Association of Council Secretaries and Solicitors (along with significant others in this area) took a roundly different view, describing the Society’s reaction as ‘protectionist’.
The paper prepared for the SRA decision expressed the view that: ‘Maintaining the current provisions… is not consistent with the principles of better regulation in that it does not identify any regulatory risk which is not addressed in another regulatory provision.’ Furthermore, ‘benefits of the change will allow local authority solicitors to deliver services in a way which is in the public interest’.
Although local government solicitors have welcomed this decision, they will continue to press for the removal of the geographical restriction, bearing in mind the increasingly cross-boundary nature of local government activity. The SRA will apparently consider this at a later date as part of a wider review of in-house legal practice regulation. But (as reported by Local Government Lawyer), the SRA has suggested this may present increased risk since authorities ‘would be allowed to provide legal services on effectively a commercial basis, without the public protections attached to entity regulation, for clients with whom the local authority has no connection’.
Dr Nicholas Dobson is a senior consultant with Pannone specialising in local and public law. He is also communications officer for the Association of Council Secretaries and Solicitors