At the time of writing this, the speed with which government guidance and advice is being generated is phenomenal. In this article, we raise just a few of the main issues that face local government lawyers, important to them in particular, but vital in the long term if local government is to operate effectively during the pandemic. The ‘new normal' requires vital changes to governance structures.
It took four working days from submissions within Lawyers in Local Government's (LLG) letter to the Ministry of Housing, Communities and Local Government (MHCLG) in conjunction with the Association of Democratic Services Officers (ADSO) before an amendment to the Coronavirus Bill (‘Bill') to provide for virtual meetings was tabled. Government lawyers had been grappling with ‘decision-making' concerns right up to that point, including delegations, emergency powers, protocols and quorum. The Government's exact plans for exercising these regulation-making powers, and the timescale in which they will be exercised, are not known. The new provisions, which were most welcomed and indeed essential to enable effective governance, now require local authorities to consider the practical mechanics whilst we wait for further guidance from central government.
There is a wide variance of technical capabilities throughout local authorities. Questions abound around how the chair will manage a meeting. What if the wi-fi drops out? How do you track active participants? How will the press and public attend? How will voting take place? How to effectively seal a document and execute a deed whilst working from home? Every day a new question emerges as our membership collaborate and we try to find the answers. Indeed, we will be working on guidance alongside the Local Government Association to try and address these issues. But decision making isn't the only pressing concern local government is facing from the evolving pandemic.
Deprivation of Liberty Safeguards
In the race to adapt, the interests of the vulnerable may be at risk. Deprivation of Liberty Safeguards (DoLS) under the Mental Capacity Act 2005 are essential safeguards to ensure that people in care homes and hospitals are looked after in a way that does not inappropriately restrict their freedom. This includes the use of physical restraint, continuous supervision and sedation. It goes to the very heart of an individual's fundamental human rights which is why the procedure is so resource intensive.
Six assessments are needed from a range of health care professionals including doctors and social workers. As the pandemic continues and staff and resources deplete or are diverted, the whole system will be paralysed. Indeed, there were signs the system was faltering even before the crisis hit. By letter dated 14th June 2019, even the minister, in a letter to parliament, referred to DoLS as ‘broken and bureaucratic'.
The new Bill is all but silent on mental capacity. What it does do however, is reduce the number of doctors required for a Mental Health Act assessment. Simon Lindsay, Partner at Bevan Brittan points out that if the Bill acknowledges the reduction in those circumstances, it will ultimately be impossible to comply with DoLS, as anyone working in a general hospital is diverted out of mental health and social care to support the front line. In July 2018, the Government published the Mental Capacity (Amendment) Bill which will see DoLS replaced by a system designed to streamline the process for authorisations called Liberty Protection Safeguards. This is scheduled to take effect on 1st October 2020 but will not come soon enough for the current crisis if it now comes at all.
Information Governance
Whilst the government advises that local government would have discretion over timescales for information governance compliance, (such as subject access requests and freedom of information requests), the actual statutory timescales for compliance have not been amended and remain in force. This is a concern to lawyers and practitioners. Whilst the Information Commissioner's Office (ICO) has confirmed they will not penalise organisations that need to prioritise areas during the pandemic, Bevan Brittan point out that when responding to requests throughout this time, the ICO have asked that records are kept to document why compliance could not be achieved. This therefore still requires a level of resource ‘where practical' to do so. What that means and how strict enforcement will be at the end of all this, remains to be seen. What we can be sure about however, is that compliance cannot simply be abandoned.
Employer Duty of Care
The government's list of defined ‘key workers' for local government states; ‘Administrative occupations essential to the effective delivery of the COVID-19 response or delivering essential public services, including payment of benefits'.
Broadly speaking, this could apply to nearly all employees working within local government. Olwen Brown, Partner at Anthony Collins advises that all employers have a duty of care to provide a safe environment for employees and this includes taking all measures, as advised by Government, to minimise exposure and contagion. If an employer has done this, and an employee still refuses to attend work, then the employee must either demonstrate they can work from wherever they are currently based, or they may need to take unpaid leave or holiday.
Employers will need to be cautious when an employee who suffers from mental health issues, such as anxiety etc. refuses to attend the workplace. If they are disabled, then it may be necessary to make ‘reasonable' adjustments. This might include helping the employee address their anxieties and/or giving them paid sick leave until they feel able to return to work. With predictions for large numbers of people falling ill during a peak if social distancing measures don't slow transmission, local authorities are at real risk of simply not having the resources to deliver. Legal advice on statutory functions requiring prioritisation to inform emergency planning will be vital to ensure core business continues and communities are served.
Member disqualification for more than six-month absence: – section 85 of the Local Government Act 1972
This is a pressing concern, not least because many authorities are close to this situation arising and are watching the clock on virtual meetings provided for in the Bill. Several councillors will inevitably fall into the vulnerable category for self-isolation and indeed, might have been unwell for some time. The concern that a by-election could be triggered following the disqualification of a member further compounds the issue.
LLG, ADSO and the Local Government Association have all made representations on this issue, but it does not yet appear in the Bill. Many authorities are considering emergency delegations but the question around full council arises because essentially, it is untested. Here however, David Kitson, Senior Associate at Bevan Brittan highlights the subtle wording under section 85 where it refers to the member ceasing to be a member of the council ‘unless the failure was due to some reason approved by the Council'. David contrasts this with the duty to set the annual budget which states it can ‘only be discharged by the authority'. Arguably therefore, it is capable of being delegated under the chief executive's emergency powers. Such a step however would be well advised to seek the views and objections of all members in advance to the waiver of disqualification so that these could be materially considered.
Conclusion
This article highlights just a few of the issues arising from a governance perspective relative to the pandemic crisis. Scrutiny of emergency legislation is not criticism of government. Rather, as local government lawyers we are committed to making the right changes, the most effective changes and the most comprehensive changes for all in our communities. We trust that there remains time for the new Bill to be reviewed and re-examined periodically so that the legislation is effective, and evidence driven.
Effective governance and timely ‘decision taking' underpin every decision that is made in the public sector. It is even more vital now, that no barriers exist to achieving action that is needed to fight COVID-19. LLG and its members remain committed to constructive engagement with the government on its emerging legislative plans. We are determined, working with our partners, to equip our members with the guidance and support they need during the pandemic crisis in order to ensure they play an effective and responsive part in delivering vital services to our communities
Helen McGrath is head of public affairs for Lawyers in Local Government
Lawyers warn Deprivation of Liberty safeguards will be 'paralysed' by the pandemic
