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The government’s silent bonfire of the safeguards

Cuts mean councils can no longer fulfil their statutory duties – so ministers want to tear them up

Away from the public eye, the government is undertaking an “informal review” of the approximately 1,300 statutory duties placed on local authorities by central government, with an influential lobby pressing for most to be scrapped.

Statutory duties set out the functions that councils should execute and the services they must provide, and account for 85-90 per cent of council spending. Set by central government departments, they act as safeguards, ensuring that councils adhere to standards in areas such as public health, food hygiene and environmental protection.

Taking just one field – social care – statutory duties require councils to consider the needs of disabled people, provide welfare services, investigate suspicions that a child is being harmed, and keep a child in care when a care order has been made. Statutory duties provide safeguards for the public: people can take legal action against councils that fall short.

A spokesman for the Department for Communities and Local Government (DCLG) insisted that scaling back statutory duties is only intended to free local government from Whitehall red tape and will not hit vital services, but some fear the exercise is an excuse for yet more spending cuts.

A DCLG civil servant, speaking anonymously, admitted that the bonfire of statutory duties was a result of cuts to councils’ budgets: “Currently, because of the financial situation, you will never be able to fund every service to the level you’d like it to. The driver is a lack of funds. If you had £50 billion and now only have £30 billion, something’s got to suffer.”

Councils face 26 per cent budget cuts over the next four years and the fear is that many services that are currently mandatory will become “discretionary”, allowing cash-strapped local authorities to axe them. The DCLG says the government “will not remove statutory protections for vital frontline services such as libraries and child protection”, but it is not clear whether these services will be provided by councils themselves, or outsourced to profit-making private entities. Many libraries have already been shut due to cuts.

The Localism Bill currently before Parliament also states that councils will be able to charge a person for services if “the service is not one that a statutory provision requires the authority to provide to the person”. With the scaling back of statutory duties, councils could start charging for services that they were previously required to provide free of charge, such as caring for people who are too frail to take baths by themselves.

Birmingham Council – Britain’s largest – recently lost a legal challenge over its plans to cut social care. Councils can provide social care for four classes of sufferers – critical, severe, major, and minor – but are only legally required to provide care for critical cases: essentially, those who are housebound and unable to do things by themselves. Birmingham Council has drastically scaled back the level of social care it provides in order to save £53 million, and has raised the threshold of eligibility so that 4,100 people – some with substantial needs – can no longer receive care. With councils needing to make even more cuts next year, any scaling back of statutory duties in this area could lead to even the most serious cases being refused care.

Simon Watson, a national officer with trade union Unison, said the plans risked “ripping up the whole fabric of the state. What is the state going to be there for? It’s supposed to be a safety net for citizens.” He warned that councils failing to provide care for severe cases would lead to more people needing expensive critical care, as their conditions would deteriorate more rapidly.

Watson also expressed concern that the “Henry VIII” powers conferred on communities and local government secretary Eric Pickles by the Localism Bill will allow Pickles to abolish statutory provisions that get in the way of “localism” – a concept he warned is “pretty undefined”. These powers will mean popular services “can just be removed at the whim of Eric Pickles”, Watson added.

An early advocate of a bonfire of statutory duties was Glyn Gaskarth, a policy manager at the Local Government Information Unit (LGiU) and former analyst with the TaxPayers’ Alliance. Writing for ConservativeHome last year, Gaskarth recommended that a Tory government “abolish all non-essential statutory duties in a bonfire of the controls imposed on local authorities” and “create a new statutory duty on Central Government … to include a compulsory sunset clause on all new statutory duties to ensure they are reviewed at periodic five year intervals”.

In his blog, Gaskarth provided an insight into the politics behind the review of statutory duties: “Matching reductions in central government funding to reductions in the responsibilities of local authorities could help provide political cover for funding cuts.” In other words, as local government is increasingly responsible for allocating funding and deciding which services it provides, it can take the rap for cutting services. Labour MP and former local government minister Nick Raynsford told False Economy that localism is being used by ministers to “shield themselves from the responsibility of cuts”.

Raynsford added: “The bonfire of statutory duties being lit by the government will undoubtedly lead to lower standards of service to the public and in consequence greater inequality and hardship, as this will disproportionately affect lower income groups. It may well also lead to more abuse of the vulnerable and indeed wider malpractice and corruption."

Among the thousands of statutory duties, some of which have been in place since 1839, some are no doubt superfluous. But these statutory duties also constitute the very fabric of local government, and provide a legal basis of appeal if councils fail in their duty of care. A bonfire of these statutory duties following a six-week “informal consultation exercise” seems reckless at best.

The DCLG consultation ended on 25 April, with any decisions not expected until the end of this year.

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