Legal Q&A

A well-known problem amongst procurement professionals A widely recognised headache for procurement practitioners arises from the duty in regulation 53 of the Public Contracts Regulations 2015 ( PCR 2015), SI 2015/102 ( PCR 2015, SI 2015/102, reg 53). It requires the ‘procurement documents’ to be accessible at the time a public contract is advertised in the Official Journal of the European Union (the Official Journal, or OJEU). In essence, contracting authorities must use the internet to provide unrestricted, complete and immediate access, at no cost, to those documents from the day a notice, issued under regulation 51, appears in the Official Journal, or from the day an invitation to confirm interest is dispatched. The issue most often raised, particularly for public procurements run under the restricted procedure (and comparable routes that involve a pre-qualification phase ahead of the award stage), is whether the...

In this Q& A we have assumed: the deceased’s assessment was correctly calculated a typical financial profile (not, for instance, no recourse to public funds) no top-up was due or paid no deprivation the income-based assessment was up to date Charging for a resident assessed as full cost and availing themselves of a deferred payment agreement would normally be as follows: income contribution: income minus personal allowance, per charging cycle remainder (after 12-week disregard) deferred against property Confirm the first was paid. For the second, check overcharging against beneficial interest; the lower capital limit is £14,250, not £23,250. Assessable capital = beneficial interest − 10% − £14,250 ( Care and Statutory Support Guidance 8.12). Example: £200,000 interest gives £165,750. Systems may overrun, exceeding assessed capital; if so, reassess and cap recovery at that, with any surplus proceeds kept by the...

The Freedom of Information Act 2000 ( FIA 2000) and the Data Protection Act 1998 ( DPA 1998) are distinct regimes, save for the overlap raised here. They otherwise operate separately from one another as a rule. FIA 2000 contains various exemptions. Those exemptions mean the kind, character or even the presence of the information need not be revealed under FIA 2000. For this scenario, the pertinent carve-out is in FIA 2000, s 40, in particular FIA 2000, ss 40(1) and 40(5)(a). Where the material amounts to personal data and the data subject seeks disclosure via FIA 2000, the exemption applies in absolute terms......

In England and Wales, local authorities are treated as public, not private, prosecutors. This status stems chiefly from their prosecuting powers expressly arising under statutory provisions in law. Specifically, section 222 of the Local Government Act 1972 ( LGA 1972) furnishes them with authority to prosecute......

Under the Education Act 1996 and the Education ( School Day and School Year) ( England) Regulations 1999, schools are legally required to operate for at least 380 sessions, or 190 days, during each academic year in England......

Dynamic Purchasing Systems A Dynamic Purchasing System ( DPS) enables a contracting authority to acquire goods, services and works needed on a recurring basis without running a full public procurement exercise for every individual purchase. It provides a route to buy regularly required items efficiently while remaining compliant. A DPS is intended for sourcing common-use items that are widely available on the market and satisfy the contracting authority’s specifications. Further reading Practice Notes: Introduction to public contracts procurement and Introduction to framework agreements and dynamic purchasing systems Crown Commercial Service ( CCS): Dynamic purchasing system guidance Under the Public Contracts Regulations 2015 ( PCR 2015), SI 2015/102, any authority setting up a DPS must follow the rules specified and cross‑referred in PCR 2015, SI 2015/102, reg 34. In keeping with all procedures under PCR 2015, SI 2015/102, contracting authorities should also adhere to the core...

On 23 October 2020, Nesil Caliskan, Chair of the Local Government Association’s ( LGA) Safer and Stronger Communities Board, issued remarks about the powers councils require to curb the transmission of coronavirus ( COVID-19). Caliskan argued that local authorities should be able to take “rapid action” against businesses that do not put in place appropriate safety measures, adding that he “look[s] forward to hearing more details…over the coming days”. See: LGA seeks tools to combat businesses violating safety measures amid coronavirus ( COVID-19)— LNB News 23/10/2020 86. The interventions designed to limit the spread of coronavirus continue to change as government policy tracks how the virus is circulating within communities. To streamline arrangements, a three-tier set of response levels was brought in to manage localised transmission of coronavirus. These regulations took effect in England on 14 October 2020,...

Assumptions have been made that this is an above-threshold procurement, conducted via a fully compliant public purchasing process in line with the Public Contracts Regulations 2015 ( PCR 2015), SI 2015/102, and that standstill notices were issued under PCR 2015, SI 2015/102, reg 86, to the winning tenderer and all unsuccessful tenderers, across the procurement process. We further assume the original contractor stopped trading (without entering insolvency) at any stage. Consequently, we have not examined the safe harbours that allow for modifying or substituting a contractor under PCR 2015, SI 2015/102, reg 72(1)(d) for this analysis. Where a public contract has collapsed because the supplier has stopped trading (with no sign of insolvency), and the contracting authority is contemplating appointing a replacement, several points require attention by decision-makers herein. A few illustrations are outlined below......

Given the enquirer notes the highway is 'seldom used', the initial issue to examine is whether the route ought to remain a highway that is maintained at the cost of the public purse......

Local authorities have an overarching obligation to take whatever measures are needed to ensure, so far as practicable, that their district remains free of rats and mice, and, specifically, to: periodically undertake any inspections required for that purpose eradicate rats and mice on land they occupy and, otherwise, keep such land, so far as practicable, free from rats and mice enforce the duties of owners and occupiers of land under Part I of the Prevention of Damage by Pests Act 1949 ( PDPA 1949), and carry out operations authorised by those provisions This Q& A proceeds on the basis that the local authority is neither the owner nor the occupier of the property in question and is therefore unable to rely on the statutory power in PDPA 1949, s 2(1)(b) referred to above......

Before reaching a decision on a planning application, a local planning authority ( LPA) must run a consultation period to gather opinions on the proposed development. This encompasses public consultation. It is open to all members of the public, who may submit representations. To make that process work, the LPA is required to publicise the planning applications it receives. Statutory provisions Section 65 of the Town and Country Planning Act 1990 ( TCPA 1990) enables a development order to require that notice is given of any application for planning permission and to make provision for publicising such applications, and it bars an LPA from considering an application unless those requirements are met by virtue of that section. The Town and Country Planning ( Development Management Procedure) ( England) Order 2015, ( TCP( DMP)( E) O 2015), SI 2015/595 is the current...

Under section 203 of the Highways Act 1980 ( Hi A 1980) A ‘private street’ is, for the purposes of section 203, a street that is not a highway maintainable at the public expense. Where a highway authority constructs a highway, it becomes maintainable at the public expense (by the highway authority) from the point it is first opened for use. Any highway created after the Highways Act 1835 took effect is only maintainable at public expense if, at some time, the relevant public authority has adopted it for maintenance. Adoption may occur following a request by the owner or be undertaken by the authority itself, and it is mandatory where confirmed under a private street works code or a similar procedure. See Practice Note: Maintenance liability for highways......