Coronavirus and Local Authorities - some issues

Article by Peter Oldham KC.

This article deals briefly with various issues (amongst many) that are of concern to LAs about the Coronavirus crisis and the Coronavirus Bill.

The article has the following sections:-

(1) Member meetings

(2) Disqualification under s 85 of the LGA 1972 for six months’ non-attendance

(3) Delegation, urgency procedures and the Civil Contingencies Act 2004

(4) Coronavirus Bill – main effects for LAs

(5) Coronavirus Bill – commencement

(6) Coronavirus Bill – provisions varying the Care Act

(7) Coronavirus Bill – education and childcare

(8) Coronavirus Bill – emergency volunteering leave

(9) Coronavirus Bill – cremation

(10) Procurement and state aid

(11) Guidance round-up

(1) Council meetings

Hoped for legislation permitting and regulating remote member meetings is still awaited.

(2) Disqualification under s 85 of the LGA 1972 for six months’ non-attendance

This rule has not been lifted. Disapplication (prior to the end of the six month period) appears to be an executive function under the Functions and Responsibilities Regs 2000.

Watch out for the caselaw on different Northern Irish provisions (Re Neeson and Re Hogan) – time in England runs from the member’s last attendance (not absence).

(3) Delegation, urgency procedures and the Civil Contingencies Act 2004

LAs will be considering their schemes of delegation and urgency procedures, and whether they need to be amended – if an appropriate meeting to change them can be held. Possibly legislation may intervene to assist.

They will also be considering plans and protocols under the Civil Contingencies Act 2004 and Civil Contingencies Act 2004 (Contingency Planning) Regulations 2005, including their Local Resilience Forum.

(4) Coronavirus Bill – main effects for LAs

These are, or at least include:-

– scheduled elections postponed to May 2021; SoS can postpone casual vacancy polls till May 2021

– lifting of duties under the Care Act 2014, and delaying CHC assessments

– SoS’s power of direction over education and childcare systems

– emergency registration of social workers and health professionals

– LAs to identify emergency volunteer leave opportunities

– relaxation of registration of deaths and still-births

– regulation of disposal of bodies

– no jury in coronavirus coroner inquests

(5) Coronavirus Bill – commencement

2^nd and possibly 3^rd reading on Monday 23^rd March

Under cl 73, the Bill comes into effect on Royal Assent, save for provisions which have effect as SoS provides – including the social services provisions

(6) Coronavirus Bill – provisions varying the Care Act

Cl 14/Sch 11 – the following is a simplified version of the main effects:-

Lifting of ss 9/10/58/59/60/61/63/64 duties to assess care/support for adults, those approaching 18 and carers

Lifting of duty to comply with s 13 duty to decide whether needs meet eligibility criteria

Lifting of s 17 duty to assess financial resources, coupled with a bar on charging if no assessment takes place. The LA can assess and charge retrospectively

Lifting of ss 24/25/27 duties to prepare/review care and support plans

The duty to provide under s 18 is given a baseline of compliance with the ECHR

BUT – while NHS gets indemnification, LAs do not

(7) Coronavirus Bill – education and childcare

Cls 35-36 and Schs 15-16 – SoS can direct temporary closure of education and childcare settings, and can also “give directions requiring the provision, or continuing provision, of education, training and childcare”. During a period of closure, the duty to educate otherwise (EA 1996, s 19) does not apply.

(8) Coronavirus Bill – emergency volunteering leave (“EVL”)

The particular issue for LAs is their designation as “appropriate authorities” in the scheme for EVL, which is as follows.

Cl 7 and Sched 6 give a right to EVL: a worker can be absent from work for the period specified in an emergency volunteering certificate (“EVC”) if, no later than 3 days before the first day of the period specified in the EVC, they give notice to their employer of their intention to be absent for the period in the EVC, and give the employer a copy.

The EVC is a document issued by “an appropriate authority” certifying that the worker has been approved by it as an emergency volunteer in health or social care and will be acting as such in the period specified in the EVC. “Appropriate authorities” in England include SoS, the NHS Commissioning Board, and local authorities.

An EVC “is a document issued by an appropriate authority certifying that the worker— (a) has been approved by the authority as an emergency volunteer in health or social care, and (b) will be acting as an emergency volunteer in health or social care from the date, and for the period, specified in the certificate.”

The EVC may specify two, three or four consecutive weeks within a single volunteering period. A volunteering period is a period of 16 weeks after the right under the Bill comes into force and each period of 16 weeks thereafter, unless shortened by SoS in regulations. A worker may take EVL only once in the same volunteering period.

The Government’s “Summary of Impacts” suggests that the Government may expect LAs to be the main responder in certifying workers:-

“Impact on Local Authorities – the policy requires LAs across the UK to identify volunteer social care opportunities and to match these opportunities to volunteers coming forward. This may add additional burdens to the work that LAs are doing in response to the outbreak. HM Government will provide detailed guidance for LAs to follow and will design a simple system in collaboration with them that is easy to administer. Additional funding may also be required.”

(9) Coronavirus Bill – cremation

Cl 56 of the Bill gives effect to Sch 27 – powers to facilitate the transportation, storage and disposal of dead bodies and human remains.

Under Sch 27, SoS can designate a LA if s/he thinks it cannot cope with dead bodies within its area. The duty under the Public Health (Control of Disease) Act 1984 not to cremate against the deceased’s wishes does not apply to a designated LA.

Designation would not in itself oblige LAs to cremate (though SoS also has a power to direct them to do so).

(10) Procurement

There is a Procurement Policy Note – Responding to COVID-19 at https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/873521/PPN_01-20_-_Responding_to_COVID19.v5__1_.pdf

It says:-

“6. This PPN and associated guidance covers options that may be considered in relation to procurements under the Public Contract Regulations 2015 (for the current financial thresholds, see PPN 06/19):

● direct award due to extreme urgency (regulation 32(2)(c));

● direct award due to absence of competition or protection of exclusive rights;

● call off from an existing framework agreement or dynamic purchasing system;

● call for competition using a standard procedure with accelerated timescales;

● extending or modifying a contract during its term.

7. Contracting authorities procuring under … the Utilities Contracts Regulations 2016 and the Concession Contracts Regulations 2016 will need to check similar provisions in those regulations.

8. The COVID-19 outbreak is likely to give rise to supply chain disruption and contracting authorities may need to take action in response to supplier claims of ‘force majeure’ or contract ‘frustration’. These and other issues will be covered in future PPNs.”

The European Commission is considering proposals for a temporary expansion of categories of approved state aid. Their precise scope is not yet clear.

(11) Government guidance round-up

There is now a great deal of Government guidance, much of it informal as yet but clearly intended to be followed, and other Government material related to the Coronavirus Bill. It is growing by the hour. The following list (under various headings) is not complete.

General

Statement of support from the Minister

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

“Coronavirus Bill – Summary of Impacts”

Link: https://www.gov.uk/government/publications/coronavirus-bill-summary-of-impacts

“Guidance: what the Coronavirus Bill will do”

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

Explanatory notes to the Bill

Link: https://publications.parliament.uk/pa/bills/cbill/58-01/0122/en/20122en.pdf

Social care

Responding to COVID-19: the ethical framework for adult social care

Link: https://www.gov.uk/government/publications/covid-19-ethical-framework-for-adult-social-care/responding-to-covid-19-the-ethical-framework-for-adult-social-care