By Nicholas Dobson, Pinsent Masons, Leeds


Local area agreements

Sit up straight, fold your arms, and be good because (roll of drums) it is story time. For the government wants local areas through their local strategic partnerships (LSPs) to develop 'the story of the place' - that is, 'the distinctive vision and ambition of the area' in getting their local area agreements (LAAs) off the ground. Confused? You might be.



According to the Department for Communities and Local Government (DCLG), LSPs are 'non-statutory, multi-agency partnerships, which matches (sic) local authority boundaries'. These 'bring together at a local level the different parts of the public, private, community and voluntary sectors, allowing different initiatives and services to support one another so that they can work together more effectively'.



But what are LAAs and how do LSPs fit with them? Well, LAAs are three-year agreements with priorities agreed between all the main public sector agencies working in the area and with central government. The idea is that the LAAs (to be given statutory authority when the Local Government and Public Involvement in Health Bill matures into law) will include 'up to 35' targets, which local authorities and their partners (specified public authorities, health bodies and quangos) will negotiate with central government from among the 200 new performance indicators to be announced alongside the Comprehensive Spending Review. The government will expect 'a quantified and specific level of improvement' from these targets.



But how are local authorities and their partners to negotiate with government? Are they to be abandoned to fend for themselves in a cruel world? Not at all. The DCLG has rushed to the rescue with a new 34-page publication, Negotiating new local area agreements. The document does give some convincing success stories surrounding the LAA process (once you have come to terms with the acronyms and management speak). For instance, Councillor Jowers, cabinet member for localism and legal at Essex County Council, points out that despite 'the language of stretch targets and strategic partnerships... our mother tongue will always be delivery'. He points out that the 'LAA has the potential to fundamentally change the way in which we do business at a local level' and the 'winners will be the citizens and communities we represent'. Download the publication for free at www.communities.gov.uk/documents/localgovernment/pdf/476151.



Discrimination duties

The Administrative Court on 10 August (R (Eisai Ltd) v National Institute for Health and Clinical Excellence [2007] EWHC 1941) issued a trenchant reminder about the need for local and public authorities to promote equal opportunities and to have due regard to the need to eliminate discrimination.



This was in the course of a judgment about the lawfulness of a consultation process conducted by the National Institute for Health and Clinical Excellence (NICE) before it issued guidance and the rejection of appeals by a NICE appeal panel. NICE develops guidance covering all aspects of healthcare within the NHS with a view to encouraging: best clinical practice; the most efficient use of the NHS's finite resources; and consistency of treatment throughout the NHS.



The process in question concerned a drug for the treatment of Alzheimer's disease. The court found no unfairness in the claimant pharmaceutical company's not being supplied with a 'fully executable model' to enable it to 'run or play with the system' to see how it would react to the input of different data and assumptions. In the court's view, the claimant 'had more than sufficient information to make intelligent response and to give proper advice'.



However, Mrs Justice Dobbs held that the matter had 'to be considered against the backdrop of the authority's positive duties and obligations under the legislation'. These were the negative obligations under section 19b of the Race Relations Act 1976 (duty not to discriminate) and section 21b to d of the Disability Discrimination Act 1995, together with positive and proactive obligations under section 71 of the 1976 Act (duty to have due regard to the need to eliminate unlawful discrimination and to promote equality of opportunity) and similar provisions in section 21E and 49A of the 1995 Act.



In the circumstances, the approach of the appeal panel was flawed since it gave no proper consideration to the duties of NICE as a public authority to promote equal opportunities and have due regard to the need to eliminate discrimination. Accordingly, NICE was directed to amend its guidance to ensure compliance with its duties and obligations under anti-discrimination legislation.



Unlawful possession proceedings

Disability discrimination was also at the heart of a decision of the Court of Appeal on 25 July concerning housing possession. This was Lewisham London Borough Council v Malcolm [2007] EWCA Civ 763, which found that possession proceedings against a tenant suffering from schizophrenia were unlawful under the Disability Discrimination Act 1995.



Under section 1 of the 1995 Act, a person has a disability if he has a physical or mental impairment which has a substantial and long-term adverse effect on his ability to carry out normal day-to-day functions. 'Long-term' means lasting or likely to last at least 12 months or for the rest of the person's life, or, if it has ceased, it is likely to recur. Impairment of normal day-to-day activities includes effects on memory or ability to concentrate, learn or understand (paragraph 4 of schedule 1). Section 22(3)(c) of that Act provides that it is unlawful for a person managing any premises to discriminate against a disabled person occupying those premises by evicting the disabled person or subjecting him to any other detriment.



The tenant, Mr Malcolm, had sublet his tenancy without the consent of the local authority landlord in breach of his tenancy agreement. This also resulted in permanent loss of security of tenure (section 93 of the Housing Act 1995). In the circumstances, the authority gave Mr Malcolm notice to quit and subsequently issued possession proceedings. The Court of Appeal, however, found that the Disability Discrimination Act trumped the Housing Act. Lady Justice Arden said that section 22(3)(c) is unqualified: 'It does not say that it is unlawful for a landlord to discriminate against a disabled person by evicting him only if the tenant has security of tenure. On the contrary, the provision is totally unqualified and it is expressed in the powerful language of unlawfulness.'



While she accepted that section 93 evidences a clear statutory intention that subletting should lead to loss of a secure tenancy, Lady Justice Arden did not consider it clear that Parliament intended this policy to prevail over the policy behind the Disability Discrimination Act. This is that landlords should make adjustments for the actions of disabled people resulting from their disability and should not evict disabled tenants without justification.



Malcolm was one of three cases recently highlighting the importance of having due regard to the Disability Discrimination Act 1995. In addition to the NICE case above, on 23 July the Employment Appeal Tribunal found that a Metropolitan Police Chief Inspector who was occasionally commended for writing good and clear reports, and was consistently able to produce work of high quality despite tight deadlines and a demanding environment, was nevertheless as a matter of law disabled by reason of his dyslexia, given difficulties experienced by him with promotion examinations (Paterson v Commissioner of Police of the Metropolis). So it is important for authorities to keep disability and other discrimination provisions squarely in their radar to avoid being hit by undetected ordnance.