Local Authority round-up 20/05/22

Commercial

More projects benefit from Community Ownership Fund

Supported by £2.2 million of government funding, provided through the latest tranche of the Community Ownership Fund, pubs, historic buildings and sports facilities will be provided with funding so that the projects can be taken over by community groups to ensure they continue. One of eight new projects to receive funding, the family-run Old Red Lion theatre pub, one of London’s oldest pubs, said to have been founded in 1415, is set to receive funding which will allow it to be relaunched as an arts venue and space for community work. Minister for Levelling Up, the Union and Constitution, Neil O’Brien MP said “From bringing historic buildings back to life in Ramsgate to creating a community farm in the centre of Bristol, the Community Ownership Fund enables local people to take on projects that benefit their communities and save venues that would otherwise be lost forever. Through this fund we are empowering local people, restoring their pride in the places where they live and levelling up communities across the United Kingdom.”

For more information please click here.

Regulatory

DHSC and Public Health England’s 2020 care home admissions policies were unlawful

The High Court has held that policy documents issued by the Department for Health and Social Care (DHSC) and Public Health England (PHE) in March and April 2020 were unlawful. The relevant issues in the specified policies concerned the admission of residents to care homes from hospitals and the community. The policies were issued and in force between mid-March to early-April 2020. The court rejected the claimants’ grounds of claim that the policies had breached the rights of care home residents who had died in care homes from COVID-19 in April and May 2020 under Article 2 (right to life) and Article 8 (right to private life, family life and home) of the European Convention on Human Rights (ECHR). In particular, the systems duty under Article 2 had not been breached and, in respect of the operational duty, there was no authority that suggested that a state was under a duty to take all reasonable steps to avoid the real and immediate risk to life posed by a pandemic to a sector of the population as broad and undefined as older care home residents. While the court dismissed several of the claimants’ grounds of claim at common law against the defendants, it did however accept that the policies in issue were unlawful on the grounds that they had failed to take into account the “highly relevant” considerations of the heightened risk to older and vulnerable residents from asymptomatic transmission in care homes. This was at a time when scientific appreciation of the real possibility of asymptomatic transmission was growing, which should have prompted the government to change its policy earlier than it eventually did (in mid-April 2022). There had been a “significant delay at a critical period”. The policies could have advised at that time that, where an asymptomatic patient (other than one who had tested negative for COVID-19) had been admitted to a care home, they should be isolated from other residents so far as practicable for 14 days, which became policy by 15 April 2020.

As well as representing another examination of the government’s decision-making in the early phases of the COVID-19 pandemic, the judgment presents a valuable analysis of Article 2, particularly in the context of adult social care.

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Delay to new rules restricting promotion of HFSS products

On 14 May 2022, the government announced a one-year delay to the introduction of new rules restricting the multibuy deals of high fat, salt and sugar (HFSS) products, including offering HFSS products as part of a volume price promotion (for example, “buy one get one free” or “3 for 2”) either in-store or online and offering free in-store refills of certain non-pre-packaged sugar-sweetened drinks. The restrictions are contained in the Food (Promotion and Placement) (England) Regulations 2021 (SI 2021/1368) (the Regulations) and were scheduled to come into effect on 1 October 2022. According to the government, the delay will allow time to review and monitor the impact of the restrictions on the cost of living in light of an “unprecedented global economic situation”. The Regulations also contain restrictions on placing and promoting HFSS products in certain locations. Despite criticism from the industry, the introduction of the placement restrictions is not being delayed. At the same time, the government announced a delay to the introduction of the new rules banning adverts for HFSS products on TV before 9.00 pm and the outright ban of paid-for online advertising of HFSS products, contained in the Health and Care Act 2022. The new rules will now come into force in January 2024. The government has explained that this is to allow more time for industry to adapt and because of the delay in the Health and Care Bill receiving Royal Assent. The government has stated that it will launch a consultation on TV and paid-for-adverts online in the coming weeks.

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Police, Crime, Sentencing and Courts Act 2022 receives Royal Assent

The Police, Crime, Sentencing and Courts Act 2022 (PCSCA 2022) has received Royal Assent. The PCSCA 2022 repeals the Vagrancy Act 1824, which made rough sleeping and begging an offence in England and Wales. It also amends the Anti-social Behaviour, Crime and Policing Act 2014 (ASBCPA 2014) so that, when powers or functions are exercised under the ASBCPA 2014, these principles apply:

• Begging or sleeping rough do not in themselves amount to action causing alarm or distress (which are indicators of anti-social behaviour).
• Policing and other enforcement action should balance protection of the community with sensitivity to the problems that cause people to beg or sleep rough.
• Powers under the ASBCPA 2014 should “in general” be used in relation to people sleeping rough or begging only where no other approach is reasonably available.

The Secretary of State is required to issue guidance to councils and police forces about these provisions which come into force on 28 June 2022. The PCSCA 2022 also amends the Road Traffic Regulation Act 1984, so that enforcement authorities (including councils) can recover charges for the removal, storage and disposal of vehicles where a vehicle is removed from a civil enforcement area. The PCSCA 2022 also creates a new offence, from 28 June 2022, relating to unauthorised encampments on public or private land. The offence will be committed if a person who resides or intends to reside with a vehicle on land fails to leave the land or remove their property without reasonable excuse when asked to do so by the occupier of the land, their representative or a constable and they have caused, or are likely to cause, significant damage, disruption, or distress (including anti-social behaviour). Travellers and trespassers who leave rubbish and cause noise will face up to three months in jail, £2,500 fines or both, or seizure of vehicles.

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International Trade

UK government announces intention to introduce Bill on Northern Ireland Protocol

On 17 May 2022, the UK government made an oral statement to Parliament on the Northern Ireland Protocol, and the European Commission published a statement in response. The UK government’s statement announced its intention to introduce a Bill in the coming weeks to make unilateral changes to elements of the Protocol concerning movement of goods, goods regulation, VAT, subsidy control, and governance. The statement indicated that the Bill would include provisions to:

• Remove customs paperwork for goods moving and staying within the UK, while ensuring that goods destined for the EU undergo the full checks and controls applied under EU law.
• Remove regulatory barriers to goods made to UK standards sold in Northern Ireland and enable businesses to choose between meeting UK or EU standards in a new dual regulatory regime.
• Provide the UK government with the ability to decide on tax and spend policies across the whole of the UK.
• Address issues related to governance.

The UK government said that it remains open to further talks with the EU if the same outcome can be achieved through negotiated settlement. The European Commission replied that the UK government’s announcement to table legislation that would disapply constitutive elements of the Protocol raises significant concerns because:

• The Protocol is the solution agreed between the EU and the UK to address the challenges posed by the UK’s withdrawal from the EU for the island of Ireland, and to protect the gains of the peace process.
• The Protocol is an international agreement signed by the EU and the UK, and unilateral actions contradicting an international agreement are not acceptable.
• The UK-EU withdrawal agreement and its Protocol are the necessary foundation for the UK-EU trade and co-operation agreement, which the EU and the UK have agreed upon to organise their overall relationship after the UK’s withdrawal.

The European Commission said that it stands ready to continue discussions with the UK government to identify joint solutions within the framework of the Protocol. However, should the UK decide to move ahead with the Bill, the EU will need to respond with all measures at its disposal.

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Deal reached to establish a freeport in Wales

On 12 May 2022, the UK and Welsh governments announced that an agreement had been reached to establish a freeport in Wales. The agreement is set out in an exchange of letters between the Secretary of State for Levelling Up, Housing and Communities and the Welsh Minister for Economy. Freeports are designated zones within which various customs, tax and other benefits apply. The UK government has previously announced plans to establish eight new freeports in England, several of which are already operational, and two in Scotland, and it has also confirmed that it is continuing to work towards the establishment of a new freeport in Northern Ireland. Under the terms of the agreement between the UK and Welsh governments:

• One freeport will be established in Wales. Additional freeports may also be considered if exceptional proposals were presented at the bidding stage.
• The governments will work jointly and together in developing and publishing a bidding prospectus.
• The UK government will provide seed funding to support a freeport in Wales with an equivalent level of funding as English and Scottish freeports, up to £26 million total. Tax reliefs will also be made available by the UK and Welsh governments.
• Bids will be assessed jointly by Welsh and UK officials, who will select a shortlist. Ministers from the UK and Welsh governments will have an equal say in the final selection from the shortlist.

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European Commission decides to phase out Temporary Framework

The European Commission has announced that it has decided to phase out the Temporary Framework for state aid measures to support the economy in the context of the outbreak of COVID-19. The Commission adopted the Temporary Framework to support the economy in the context of the COVID-19 outbreak, based on Article 107(3)(b) of the TFEU, in March 2020. It has been amended six times, most recently in November 2021, to add new measures within its scope and to extend its duration until 30 June 2022. The Commission has decided that the Temporary Framework will not be further prolonged beyond 30 June 2022, given the improving economic situation following the lifting of coronavirus restrictions. The existing phase-out and transition plan, as announced in November 2021, will not change. In particular, member states will be able to provide specific investment and solvency support measures until 31 December 2022 and 31 December 2023 respectively. The Commission has published a “non-paper” setting out the possibilities for providing liquidity and other support after 30 June 2022.

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Planning and housing

Welsh Government publishes consultation on post-COVID-19 interim homelessness measures

The Welsh Government (WG) have published a consultation on post-COVID-19 pandemic interim homelessness measures. In response to the COVID-19 pandemic, the WG adopted a “no one left out” approach, bringing a number of rough sleepers into emergency accommodation. The scale of “hidden homelessness” led to a commitment by the WG to homelessness prevention and the introduction of the Ending Homelessness Action Plan. The consultation proposes introducing three new orders under the Housing (Wales) Act 2014 (HWA 2014). The first is The Homelessness (Priority Need) (Wales) (Amendment) Order 2022 under which the WG proposes to add “Person sleeping rough” as an 11th category of priority need under section 70 of the HWA 2014 (currently this is only a factor to be considered when assessing the vulnerability of an applicant). The second is The Homelessness (Intentionality) (Specified Categories) (Wales) (Amendment) Regulation 2022. The WG proposes to amend the Homelessness (Intentionality) (Specified Categories) (Wales) Regulations 2015 (SI 2015/1265) to include “Rough Sleeping” as the 11th category, mirroring the revised priority need categories. The 2015 Regulations list the categories of individuals that allow an authority to take into account intentionality when deciding whether a final duty is owed to a homeless applicant. Finally, The Homelessness (Suitability of Accommodation) (Wales) (Amendment) Order 2022 is proposed. Article 6 of the (Homelessness) Suitability of Accommodation (Wales) Order 2015 (SI 2015/1268) provides exceptions to the general rule that B&B accommodation is not suitable. The WG proposes to add a sub-category to Article 6, to include a further exception where an authority’s ability to provide accommodation has been restricted due to COVID-19-related pressures, subject to a time limit of 31 March 2023. The WG also proposes explicitly including “public health emergency” in the list of emergency events under Article 6a. The consultation closes on 20 June 2022 and responses should be submitted online.

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Levelling-up and Regeneration Bill 2022-23 introduced in House of Commons

The Levelling-up and Regeneration Bill 2022-23 (LRB 2022-23) received its first reading in the House of Commons on 11 May 2022. Particular points to note are that Part 8, Letting by local authorities of vacant high-street premises, which applies in England only, provides councils with powers to conduct a compulsory rental auction of vacant premises in designated high streets or town centres. Qualifying criteria that must be met before an area can be designated include suitability for high street use, a vacancy condition and a local benefit condition. Before a council can conduct a rental auction there is a two-stage notice procedure with a landlord’s right of appeal. Regulations will govern the auction process and identification of the successful bidder. Councils will be empowered to contract as if they were the landlord. The contract can include provisions for works on the part of the landlord. Tenancies will be for a minimum of one year and a maximum of five years. Security of tenure under the Landlord and Tenant Act 1954 will not apply. There will be deemed consent from superior landlords and mortgagees. Part 9, Information about interests and dealings in land, which applies in England and Wales, introduces new measures by which the Land Registry will be entitled to require information about the ownership and control of land. Measures will enable identification of ownership, details of rights regarding land or the ability to control or influence (directly or indirectly) the owner of land, together with details about the nature, extent and duration of such matters. It also provides that they must obtain transactional information, such as details of parties and people acting on their behalf, transaction terms, details of professional advisers, the source of funds and documents evidencing a transaction. Failure to comply will be an offence. Registrations will not be completed until the information is provided. This information gathering is partly to nullify attempts to evade sanctions or the new disclosure requirements placed on overseas entities owning UK land and property contained in the Economic Crime (Transparency and Enforcement) Act 2022.

For more information please click here.

If you have any questions about the issues raised in this update, please do not hesitate to get in touch.