Local government update: judicial review, freedom of information, planning

Community right to challenge

Regulations to activate the community right to challenge provisions of the Localism Act 2011 are expected during the summer of 2012. Further regulations will extend the right to embrace fire and rescue authorities, and set out the grounds on which authorities of all types can reject ?a challenge. ?The grounds for rejection are:

1. Lack of eligibility to challenge.

2. Inadequate or inaccurate information supporting the challenge.

3. Unsuitability of the challenger to provide the service.

4. A decision to cease provision of the service has already been made.

5. The service is integrated with an NHS service and integration of the two services is critical to the well-being of service users.

6. The service is already under procurement.

7. The authority is already in negotiation with another party.

8. The authority has published its intention to consider an employee-led proposal for the service.

9. The challenge is frivolous or vexatious.

10. Acceptance of the expression of interest would be likely to lead to breach of a statutory requirement.

On the face of it, the community right to challenge could be a powerful tool to open up public services markets in line with the government's vision in Open Public Services 2012. For the first time, it will provide a legal basis and route map for community groups and employee-led mutuals to get more involved in delivering public services and marks a cultural shift in public service reform to more grassroots action and ideas, rather than top-down initiatives.

Authorities now need urgently to consider their strategy and processes for responding to such requests and will need to have robust procedures in place to avoid the risk of legal challenge. However, the number and scope of the grounds for rejection suggest some get-outs which could be used by authorities to scotch an attempt by community providers to take over the running of services. In the current economic climate, it remains to be seen how much appetite there will be among potential applicants to use the right.

Freedom of Information Act

Post-legislative scrutiny of the working of the Freedom of Information Act 2000 (FOIA) is being carried out by the parliamentary justice select committee. Evidence to the committee from the Ministry of Justice (MoJ) submitted in December 2011 indicated that, generally, FOIA is working well and remains a key element of the coalition government's policies for openness and transparency in public administration, contributing to more public trust in decision making and greater accountability of decision makers. The number of FOI requests year-on-year continues to increase and a survey commissioned by the MoJ found that local authorities were each receiving between 70 and 130 requests ?per month.

FOIA was amended by the Constitutional Reform & Governance Act 2010 which reduced the period for disclosable 'historical records' from 30 to 20 years.

A further amendment is made by part 6 (sections 102-108) of the Protection of Freedoms Act 2012, although as yet no commencement order for part 6 has been made. When brought into effect, public authorities will be obliged to make datasets available in a reuseable format if requested and if it is reasonably practical to do so. An authority will be compelled to license reuse of the published datasets on terms to be specified by the secretary of state. Charging for the licence will be allowed through new or existing regulations. Disclosed datasets will also have to be made available by public authorities in their publication schemes, and, if updated, the updated version made available.

One issue being considered by the justice select committee is local authorities' concerns as to costs associated with dealing with complex FOI requests and staff costs that are not fully recovered. Currently public authorities can decide not to comply with the request if they estimate that compliance with the request would exceed the appropriate limit (currently still £450 for FOIA requests or £600 for Environmental Information Regulations 2004 requests). One suggested solution is to include more activities within the cost limit (e.g. reading, consultation and redaction); alternatively, to introduce a higher fees regime to discourage the number of requests being made, or to amend the tariffs.

Other issues before the committee include: introducing statutory time limits for internal reviews and public interest testing to avoid delays in dealing with requests, and removing the role of the 'qualified person' to avoid delay in refusal notices being issued.

The justice select committee completed taking evidence in May. No date for publication of its recommendations has yet been set.

Planning policy changes

The National Planning Policy Framework was published by the Department for Communities and Local Government on 27 March 2012, reducing the previous voluminous Town & Country Planning Policy guidance to less than 60 pages, supplemented by some 20 or so pages of technical guidance. Regional planning policy (the regional spatial strategies) had already been abolished, but the PPSs (planning policy statements), PPGs (planning policy guidance) and their minerals counterparts, the circular on planning obligations and various letters to chief planning officers have now gone the same way. Now enshrined in the new framework is the presumption in favour of sustainable development and policy aligned for the Localism Act 2011.

What will this mean for local planning authorities? Although the new framework came into effect immediately, LPAs have 12 months' grace in which to adapt their local plan to the 12 core principles of sustainable development set out in the framework. These are aimed at making it easier for jobs to be created in cities, towns and villages; moving from a net loss of bio-diversity to achieving net gains for nature; replacing poor design with better design; improving the conditions in which people live, work, travel and take leisure; and widening the choice of high-quality homes. Planning decisions in the 12-month period may continue to be based on the previous local policy regime. In making their new local plan, LPAs are encouraged positively to seek opportunities to meet the development needs of their local area, and to recognise that a local plan needs sufficient flexibility to adapt to rapid change

The wide-ranging and detailed demands and sometimes tenuous linkage of earlier section 106 agreements are unlikely to be seen again, as the new framework restricts use of these to circumstances where planning conditions cannot do the job and the planning obligations sought are necessary to make the development acceptable in planning terms; directly related to the development; and fairly and reasonably related in scale and kind to the development. Policy from the centre has been codified into a mandatory set of guiding principles. How these will be interpreted, and what kind of balances will be struck at local level, remain to be seen, but the government has at least enabled localism to take root and be given a chance to thrive.

New legislation

Some forthcoming legislation announced in the Queen's Speech to parliament on 9 May will be of particular interest to local authorities. The government plans to introduce a Children and Families Bill to make the process of adoption easier, offer more choice of education for children with special educational needs, give parents the opportunity to share caring responsibilities and ensure children continue to have a relationship with both parents following a divorce. Proposals for combining the systems for separate assessment of children's educational needs and care needs are now emerging, so that the new system would be simpler and faster.

A Care and Support Bill is to give people greater choice, so improving equality of access to care and to require councils to adapt their services to fit the needs of the community. Although a welcome step forward, the bill will not tackle reform of social care funding through insurance as proposed by the Dilnot report. Many will see this as a missed opportunity, although the government is likely to point to the need to save the estimated £2bn cost of this.

An Electoral Registration and Administration Bill will phase in individual voter registration from 2014. An individual will become responsible for registering in order to obtain a vote, in contrast to the long-established collection of eligibility data from heads of households. Critics of the reform argue that this will reduce voter turnout rather than increase it.