Public Sector Newsletter – August Review 2020

9th September 2020

Blake Morgan’s Public Sector legal experts have put together a review of the latest news within the area from August.

Welsh Government announce multi-million pound support package for local authorities

The Welsh Government have announced that additional funding of more than £260 million will be made available to local authorities in Wales, to give local authorities the confidence to plan with greater certainty for the remainder of the financial year.

This additional funding is intended to assist local authorities with covering the increased costs incurred as a result of the Coronavirus pandemic and in managing the pressures resulting from their associated loss of income. In particular, the support package will include £25 million to fund the additional cleaning requirements for schools in response to the Coronavirus. Further education colleges will also be supported with an extra £3.6 million for additional cleaning cost

With the potential for further Coronavirus peaks during the autumn and winter months, this support package will provide local authorities with the confidence to prepare their budgets for a potential second Coronavirus wave, and to continue to respond to the pressures of the Coronavirus pandemic.

The Welsh Minister for Housing and Local Government, Julie James, said:

“Our local authorities have done a fantastic job of rising to the challenges of COVID-19, but we recognise the financial impact this has had on them.

We have been working closely with the Welsh Local Government Association (“WLGA”) and local authority leaders to understand the pressures and challenges they are facing, and the support needed to continue delivering good quality, integrated public services to communities across Wales.”

This additional funding will be administered through the Local Government Emergency Financial Assistance Fund, and will be allocated to local authorities on a claims basis.

The full written statement published on 17 August 2020 can be found here.

The Welsh Government press release can be found here.

Welsh Government consultation on amendments to School Governance procedures in Wales

The Welsh Government has produced a consultation seeking comments on proposed amendments to the Government of Maintained Schools (Wales) Regulations 2005 (the “Governance Regulations”) and the Federation of Maintained Schools (Wales) Regulations 2014 (the “Federation Regulations”).

The consultation, issued on 12 August 2020, proposes removing the disqualification on being a school governor, found in the Governance Regulations and the Federation Regulations, where a person is liable to be detained under the Mental Health Act 1983. The consultation argues that this disqualification criteria is not appropriate for school governors, with the Mental Health Discrimination Act 2013 having already removed such a disqualification for sitting MPs, company directorships and jurors for the same reason. By removing the disqualification, potential governors and existing governors could no longer be disqualified from office on the basis of mental ill health.

The consultation also proposes that changes be made to the procedures for record keeping and meetings. The consultation notes that it is now common practice for the proceedings of meetings to be recorded electronically as opposed to on paper. It is proposed that the regulations be updated to reflect this.

Conducting meetings remotely through video or tele-conferencing tools is also common practice, and the proposal seeks to formally clarify that this is permitted. The proposal envisages that virtual or remote access meetings be permitted if the following conditions are met:

  • That participants will be fully able to make representations and discharge functions.
  • That participants agree to the meeting being held using remote access.
  • That each participant has access to the electronic means to allow them to hear and to see, and be heard and be seen.
  • That the meeting is capable of being held fairly and transparently.

The proposed changes have been expressed in a policy context by the Welsh Government, rather than in the form of draft regulations. This has been done to make it easier for those involved in the consultation to understand the impact of making the changes.

It is thought that these changes will benefit governing bodies, through the increased convenience offered by permitting electronic record keeping and virtual remote access meetings, as well as through removing an outdated disqualification criteria around the Mental Health Act 1988.

The full consultation can be found here.

Welsh Government Extends Review of Post 16 Learner Travel

In their written statement published on 10 August 2020, the Welsh Government has confirmed the extension of the Review of Post 16 Learner Travel in Wales.

The written statement was issued to reflect the cross departmental matters that have been raised by the Children’s Commissioner, the Welsh Language Commissioner, Members of the Senedd and the general public concerning transport arrangements since the last written statement was issued regarding the review on 13 November 2019.

The previous written statement had acknowledged that the current legislation, which imposes duties on local authorities to make transport arrangements for learners of statutory school age (based on distance, aptitude and safety), was generally working well.

However, the previous written statement noted that there were increasing concerns for post 16 learners where local authorities had discretion over travel arrangements.

These concerns had arisen as a result of the difficult financial decisions that are facing local authorities. It had been found that decisions relating to costs were impacting the decisions being made by some local authorities on discretionary travel arrangements, to the detriment of post 16 learners. Such decisions had wider implications for all post 16 learners.

In the new written statement published on 10 August 2020, the Welsh Government confirmed that it stills considers the current legislation to be working well. However, having considered the matters that have been raised over the past months, the Welsh Government has decided to widen the scope of the review. The review will now include the 4-16 year old age group, in addition to the original Post 16 Learner Travel group.

The scope of the review will also be widened to consider the current mileage threshold. Currently, primary school pupils are entitled to free transport if they live outside of two miles of their school, and secondary school pupils can get free transport if they live outside of three miles of their school. It is hoped to find an appropriate balance between encouraging more pupils to walk and cycle to school, and ensuring that they continue to have safe school transport.

It remains the purpose of the review to identify all the issues involved in learner travel and to identify how they can be resolved in a cost effective and sustainable way.

The Welsh Government confirmed that the Coronavirus had affected the progress that had been made with the review. While a commitment had been given to review and consult on the learner travel guidance in 2020, the Welsh Government has stated that this will now be delayed until the findings of the extended review are clear.

Although the Welsh Government is aiming to complete the review by the end of March 2021, it has acknowledged that the impact of dealing with Coronavirus related issues still has the potential to cause further delay.

The full written statement published on 10 August 2020 can be found here.

The Welsh Government press release can be found here.

Extension of Integrated Care Fund and Transformation Fund in Wales

The Welsh Government has announced a 12-month extension of the Integrated Care Fund (the “ICF”) and Transformation Fund (the “TF”), so that both funds will now last until April 2022.

The ICF enables health and social care services to work together to provide integrated support to, among others, people with learning disabilities, older people and children with complex needs, children in care and carers. It is also intended to facilitate the development and testing of new approaches and service delivery models.

The TF is intended to meet the additional costs of introducing new models of health and social care, to increase the pace of their development, to demonstrate their value and to accelerate the wider adoption and scaling up of new ways of working which are intended to replace or reconfigure existing services.

The projects so far developed using the ICF and TF funding have become a vital and entrenched part of supporting the new methods of delivering wider health and social services. They have also played a fundamental role in the Welsh Government’s response to the Coronavirus. Examples of this can be seen from the hospital to home projects (rapid discharge) and admission avoidance models.

The extension will see £89 million of revenue and £40 million of capital being provided to the ICF, while £50 million of revenue will be provided to the TF. This will provide stability for the seven Regional Partnership Boards that administer these funds and bring together health boards, local government and the third sector.

It will also allow continuity for key health and care services over the coming month, and will establish a firm basis from which to eventually carry out reconstruction once services have stabilised. The 12-month extension will also allow the momentum of the transformation programmes under both funds to be reinvigorated, after the disruptions caused by the Coronavirus.

The full written statement of the Welsh Government can be found here.

Welsh Government announces £800 million stabilisation package for Welsh NHS

In their Written Statement on the Health Stabilisation Budget, published on 5 August 2020, the Welsh Government have announced a new £800 million stabilisation package to help the Welsh NHS to continue to respond to and recover from the impact of the Coronavirus pandemic.

This new support package takes the total amount of Welsh Government Coronavirus support for NHS organisations to more than £1.3 billion. This funding will support NHS organisations across Wales in preparing for the anticipated challenges that autumn and winter will bring, both in respect of the potential second wave or spikes of the Coronavirus and the normal winter pressures on NHS services.

The stabilisation package will allow the Welsh NHS to take a strategic approach to the procurement of Personal Protective Equipment (“PPE”), for both the health and social care sectors. This will allow for the creation of an appropriate ‘buffer’ of supplies, in readiness for any second wave of the Coronavirus.

It will also ensure that a reliable supply of PPE is available for primary care providers, including GPs, dentists and optometrists. Guaranteeing a supply of the protection needed by these health professionals will ensure that they can continue to carry out their vital services.

Additionally, health boards can use the funding to make sure that they will have sufficient capacity for treating patients. This could be in respect of existing hospital sites, and also access to field hospitals as a contingency if needed.

The stabilisation package is also intended to ensure a faster turnaround for Coronavirus test results, in order to support contact tracing to allow Wales to respond rapidly to and to contain any further spread of the Coronavirus.

Aside from supporting the ongoing response to the Coronavirus, the funding also intended for the Welsh Government’s flu vaccination programme which was announced on 24 July. Worth £11.7 million, this funding is intended to allow more people than ever to benefit from the free flu vaccine programme, in readiness for winter.

The full written statement published on 5 August 2020 can be found here.

The Welsh Government press release can be found here.

Decision of Welsh council to implement major school reorganisation quashed by high court

A decision by Rhondda Cynon Taf County Borough Council to implement wide-ranging re-organisation of primary, secondary and sixth-form education in the Pontypridd area has been successfully challenged in the High Court.

If implemented, the reorganisation would have seen the area’s three schools with sixth forms close or cease to exist. In their place, two ‘super-schools’ would have been established for pupils aged 3 to 16.

Of the four grounds advanced by the claimant in seeking a judicial review of the Council’s decision, the Court concluded that the claimant had succeeded on the following:

  • That the Council’s decision to re-organise sixth form education, as part of its wider proposals, was made in breach of section 50 of the School Standards and Organisation (Wales) Act 2013 (the “2013 Act”), as the proposal should have first been referred to the Welsh Government due to its affect upon sixth form education; and
  • That the Council’s decision in relation to all of its proposals was made in breach of the Welsh Government’s School Organisation Code 2013 (the “2013 Code”), in that the Council had failed to take into account a specific factor that must be considered in any proposals to reorganise secondary schools or remove sixth forms, namely how the proposals might affect the sustainability or enhancement of Welsh medium provision in the regional 14 – 19 network and wider area, and how they might promote access to availability of Welsh medium courses in post 16 education.

In regards to the breach of the 2013 Act, the Court had to consider the different submissions made by the claimant and the Council on the Welsh and English versions of the 2013 Act, and take account of the literal translation into English of the equivalent Welsh words contained in the Welsh text. As the Welsh text of the 2013 Act has equal status with the English text, the meaning must be consistent across the texts in both languages.

The Court found that the Welsh version of the legislation was clearer in meaning than the English equivalent. The interpretation of the 2013 Act relied upon by the Council had wholly ignored the Welsh text, producing a constrained and artificial reading based entirely on the English text.

The Judge found that the council’s submissions:

“Wholly ignore the Welsh text, then conclude (after construing the English text) that the Welsh text must have the same meaning, or does not matter. I do not consider that to be the correct approach to legislation passed in Wales, both in Welsh and in English, the text of each language having an equal status to the other.”

In contrast, the claimant’s contended for meaning was consistent both in the Welsh language and English language versions and the preferable interpretation of the meaning of the 2013 Act. Accordingly, the proposals were found to affect sixth form education within the manner set out in the 2013 Act.

In respect of the breach of the 2013 Code, the Court found that the Council had conducted an inadequate Welsh language impact assessment, and had failed to consider how the proposal would impact upon Welsh medium secondary education. Closing Welsh medium primary schools would have an impact on Welsh medium primary education, which in turn would inevitably have an impact upon Welsh medium secondary education. This failure could not be overlooked nor treated as a technicality.

This hearing has highlighted the importance of the Welsh language in having equal standing in law in Wales, and the need for those concerned with the implementation of legislation in Wales to consider versions of statutory instruments in both languages.

A more detailed analysis of the case can be found here.

New measures introduced to support the development of safe Coronavirus vaccines for the entire UK

On 28 August 2020, the UK Government outlined a range of new measures that will be introduced to assist in the development of safe vaccines for the Coronavirus, and to assist with their future mass rollout across the entire UK.

While these measures are intended to save lives and rapidly bring the Coronavirus pandemic to an end, by accelerating the creation of a Coronavirus vaccine, there remains a strong emphasis on providing vaccines to UK patients only where that vaccine has proven to be safe and effective.

The new measures include:

  1. Introducing reinforced safeguards to support the Medicines and Healthcare products Regulatory Agency (“MHRA”) in granting temporary authorisation for the use of any new Coronavirus vaccine, provided that the vaccine meets the highest safety and quality standards;
  2. Seeking to expand the trained workforce who can administer the Coronavirus vaccines, in order to improve patient access and to protect the public; and
  3. Clarifying what is the scope of the protection from civil liability for the additional workforce that could be allowed to administer vaccinations.

Should a Coronavirus vaccine be discovered before 2021, and that vaccine be proven to be safe and effective during robust and extensive clinical trials, the new measures will work to strengthen the existing powers of the MHRA. This will enable the MHRA to consider approving the use of the vaccine for patients, even before a full product licence is granted for its use.

Reinforcing these existing powers are necessary because of the ongoing requirement for new potential Coronavirus vaccines to have a licence granted by the European Medicines Agency (“EMA”) before they can be administered to patients. This requirement will persist for the duration of the transition period (while the UK is exiting the European Union). The strengthened powers granted to the MHRA will permit it to consider temporarily authorising the use of a vaccine, allowing patients to be vaccinated while the vaccine continues to undergo the full licensing process with the EMA.

From 2021, the MHRA will have a UK national licensing system in place and will then be responsible for granting licences for potential Coronavirus vaccines and treatments. Until this time, the new measures will ensure that patients can receive the benefit of any vaccine, although reinforced conditions will be put in place for its use to ensure safety, quality and efficacy. It nonetheless remains a precautionary measure, to be used as a last resort if there is a strong public health justification for widespread use of a Coronavirus vaccine before it has been granted a product licence.

In addition to accelerating vaccine creation and introduction, the measures outlined by the UK Government will also allow an expanded workforce to be able to administer vaccinations to the public. This workforce will include more fully trained healthcare professionals, who can administer the vaccinations under NHS and local authority occupational health schemes. It will also include student doctors, nurses, and a wider range of other existing NHS staff. The expanded workforce will undergo a robust training programme, and will facilitate easier and faster access for patients to Coronavirus vaccines.

The measures will clarify the scope of the protections provided by regulations to healthcare workers and manufacturers from civil liability. This will ensure that such protections will also extend to the additional workforce intended to administer vaccinations and to the companies which will order the medicines.

The new measures could come into force by October 2020, before the beginning of the winter season.

The full UK Government press release can be found here.

Report produced on the preparations needed to meet the surge in demand for mental health services

As a part of its NHS Reset campaign, a report has been published by the NHS Confederation, which considers the anticipated surge in demand for NHS funded mental health services and the preparations that need to be taken by service providers to meet these additional pressures.

The report notes that during the peak of the Coronavirus lockdown, mental health referrals saw a 30-40 percent reduction. Following the easing of lockdown restrictions, there have been anecdotal reports from service providers of referrals rising to higher levels than before the start of the Coronavirus pandemic. When compared to the statistics from before the Coronavirus pandemic, these recent referrals are also made up of a higher proportion of patients who are accessing services for the first time, and of persons who have more significant care needs.

The report sets out three categories of persons that are expected to increase the demand on mental health services:

  1. Persons who would have been referred mental health services had the Coronavirus pandemic not occurred and who now require referral;
  2. Persons requiring increased mental health support, as a result of a deterioration of their mental health during the Coronavirus pandemic; and
  3. New persons needing mental health support for the first time as a direct result of the wider impacts of the Coronavirus pandemic, such as self-isolation, financial insecurity, bereavement and increases in substance abuse and domestic violence.

Among the key recommendations of the report was that work is urgently required to properly understand the expected increase in demand, and its impact in different areas and on different groups. Already models are being produced locally and nationally, to allow services to plan how they will be able to meet different demands in different areas, and to tailor services for the specific traumas that have arisen as a result of the Coronavirus pandemic.

While £2.3 billion of additional funding was allocated for mental health in 2019, the report notes serious concerns that this may now be insufficient to meet the increased costs that service providers will face. Such costs include that of personal protective equipment, increased infection control and cleaning costs, ongoing costs related to new digital services, and of locum and additional permanent staff.

Even without the anticipated surge, due to ongoing requirements in respect of infection control and social distancing, and staff shortages relating to the Coronavirus, mental health service providers are estimating a 10-30 percent decrease in their capacity to provide services. With the increased demand for services soon to exacerbate the above issues, the report concludes that it is vital that funding levels be adjusted to allow service providers to have sufficient resources to manage these challenges.

Mental health service providers had already introduced telephone and video meetings to replace face-to-face appointments, as well as 24/7 emergency helplines and increased digital solutions to improve service delivery during lockdown. Building on what has already been introduced, the report recommends that long-term funding is required to support the increased use of digital approaches. Despite this, it also notes that a balance will need to be found between delivering services remotely and delivering them in person, acknowledging that digital services are not always appropriate or easily accessible for patients.

The height of the Coronavirus pandemic saw health and care providers cooperating with each other more freely, with previous barriers having been removed, in order to quickly implement new schemes and services. The report concludes that this increased cooperation should continue, with partnerships and integrated care needed to meet the increased demand for services.

The full report can be found here.

Further welsh government Funding for Adult Social Care Providers

The Welsh Government has announced a further £22.7 million in funding to help meet the additional costs being incurred by adult social care providers as a result of the Coronavirus pandemic.

The further funding was announced by Vaughan Gething MS, Minister for Health and Social Services and Julie Morgan MS, Deputy Minister for Health and Social Services, in a written statement published on 3 August 2020. It is being made in addition to the £40 million the Welsh Government made available to local authorities back in April, to assist the adult social care sector.

The £40 million provided to local authorities in April was intended to help the adult social care sector handle the increasing costs arising as a result of the Coronavirus. The focus was in particular on meeting the rising costs of food and services, staffing costs and increased infection control.

While this funding provided much needed support for adult social care providers, the sector continues to face significant financial pressures. Care homes in particular are having to deal with the additional challenges resulting from the loss of income caused by vacancies, as a direct result of the Coronavirus. This has been exacerbated by the need in some cases to restrict new admissions to the homes, in order to control the spread of the virus.

It is intended that the £22.7 million in further funding will assist providers in continuing to meet these ongoing additional costs. The funding will be made immediately available and continue until the end of September. Following this, the Welsh Government will carry out a further review of the situation facing adult social care providers.

The full written statement published on 3 August 2020 can be found here.

The Welsh Government press release can be found here.

Returning to work and blended working hot topics – resources for employers

Blake Morgan’s Employment and Data Protection teams recently co-hosted two key webinars for employers on the hot topics of “Returning to Work” and “Blended Working“, and recordings of both of these are available to download and watch for free.

With reports that nine in ten people who worked from home over lockdown would like to continue to do so in some form, our second webinar on Blended Working in particular received a  large number of questions on the day, and the team took extra time to answer as many as they could on the spot.

Click here to read more about some of the key issues that employers are facing at the moment.

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