Fascinating article in The Sunday Times today.

The article claims that laying off public-sector staff cost at least £1bn last year.

Two examples:

In the last two years 37 HMRC officials have left with packages worth more than £200,000.

At the Land Registry, English and Welsh equivalent of the Registers of Scotland, more that 200 officials received packages worth over £100,000.  68 of these were worth over £200,000.

The £447,382 pay out for Bernadette Kenny, the HMRC official in charge of personal taxes when HMRC miscalculated the tax due by 6 million people, will I am sure receive a lot of publicity in the next few days.

Interesting report on HM Revenue & Customs by the National Audit Office.

HMRC has to reduce its running costs by £1.6 billion in the next four years.  That is a real challenge when you consider that it also has to increase tax revenues, improve customer service and achieve reductions in welfare payments.

This is likely to mean cutting staff numbers by a further 10,000 and reducing its number of offices still further.

In its report the NAO said HMRC had reported savings of about £1.4bn since 2005.

The NAO report can be found here.

A report on this by the BBC can be found here.

I have been asked the following question a couple of times recently:  Why should Scotland have 59 MPs and an increasingly powerful Parliament?  This is also an issue I raised, albeit briefly, when co-authoring the “Fiscal Powers” papers for Reform Scotland.

My personal view is, as greater powers are transferred to the Scottish Parliament the number of Scottish MPs should in turn fall.  I see this as a question of fairness.  Scotland cannot have it both ways, i.e. a Parliament with more powers but still retain the same number of MPs.

For the 2005 UK General election the number of Scottish MPs was reduced from 72 to 59.  This reduction brought the average Scottish electorate for an MP closer to the UK average.  The reduction being proposed presently, 59 to 52, is part of the plan to reduce the total number of MPs to 600 from the present 650.

Former PM John Major recently called for the Scottish Parliament to have resposibility for everything other than foreign policy, defence and some economic matters.  That proposal is often referred to as full fiscal autonomy.

Under this scenario I would argue that 24 MPs is sufficient for Scotland.   I would also suggest that these MPs should be elected in a different way.  I would make use of the “regional areas” presently used to elect List MSPs for the Scottish Parliament.  Three MPs could be elected for each region under the STV (single transferable vote) system.   STV is used in Scottish local elections.  That is also likely to ensure a better balance of MPs from Scotland and more closely reflect the votes cast.

I would also argue that it is time to abolish the Scotland Office.  It is not just the fact that public spending is under so much pressure just now but that its time has past.   It is an organisation who appears to have lost its way and serves little purpose.  It also makes sense that the Scottish Government deals directly with the UK Government and/or individual UK Governmental departments.

This is also an issue that needs to be looked at throughout the UK and by that I do not just mean Wales and Northern Ireland.  The UK Parliament also needs to consider how it deals with “English” only business.

The landlord registration scheme had its origins in the Antisocial Behaviour (Scotland) Act 2004 which required registration of all private landlords.  As a result of which, private landlords have been required to register with their local authority since the end of April 2006.

The stated intention of the requirement is to ensure that all private landlords meet minimum standards and to remove the worst landlords from the sector.

The Scottish Government has commissioned and published an Evaluation of the Impact and Operation of Landlord Registration in Scotland.

The research (carried out by DTZ) includes the following findings:

• The registration scheme has had some impact in meeting its goals of raising management standards in the private rented sector with private sector landlords now more aware of their there obligations.
• Registration has not succeeded in  removing  the ‘worst’ landlords from the sector
• Local authorities have adopted a ‘light touch’ approach to implementing the scheme with advice and information being the main focus in encouraging landlords to join.
• Not all local authorities have landlord and tenant awareness strategies in place and not all local authorities have established performance and monitoring systems.
• Overall the view was that there are few sanctions available when landlords do not comply.
• Whilst there is evidence of effective administration and sound management within local authorities, a simpler and more effective administration system would enable greater levels of investigation and enforcement activity.

The following recommendations were also included:

• The Scottish Government should be explicit about the purpose of the landlord registration and this should be communicated clearly to local authorities, landlords, private sector tenants and the general public.
• Local authorities should develop landlord and tenant awareness raising strategies where not already in place and should develop more systematic performance and monitoring systems.
• Local authorities should carry out random sample checks on landlords to check that information on application forms is accurate.
• The landlord registration scheme should be more formally constituted with clear levels of responsibility demarcated for both the Scottish Government and local authorities.
• Local authority guidance should be updated and clarified.

The report is available from the Scottish Government here.

Appeal case concerning Brightcrew’s application for a premises licence in respect of an adult entertainment venue known as “Spearmint Rhino” on Drury Street in Glasgow.

The City of Glasgow Licensing Board (the Board) refused Brightcrew’s application on the basis that the Board considered the granting of the licence would be contrary to two of the licensing objectives contained in the Licensing (Scotland) Act 2005[1]. Specifically, it was considered contrary to ‘preventing crime and disorder’ and ‘protecting and improving public health’[2].

In coming to this conclusion the Board referred to several alleged breaches of its “Code of Practice relative to the provision of dance entertainment in licensed premises”.  The Code of Practice had no statutory basis but the Board would generally expect compliance with it and would take breaches of it into account when considering the suitability of premises for the sale of alcohol.

Conduct by Brightcrew which was identified by a licensing officer as being in breach of the code included:

1. a member of staff being unaware of the location of the risk assessment for the premises;
2. the issuing of advertising flyers which failed to depict the dancers suitably clothed;
3. a drinks promotion which had conflicted with the  Board’s policy on “happy hours” (which was withdrawn after the licensing officer’s views were expressed to the local manager)
4. two dancers removing their bikini bottoms and exposing their genital area[3]; and
5. several dancers making “considerable contact” with patrons.

Brightcrew argued[4] that, in taking the view that any breach of its Code of Practice could lead to deprivation of the licence to sell alcohol, despite the lack of any objective effect of the breach on the licensing objectives relating to the sale of alcohol, the Board had made a material error of law.

An Extra Division of the Inner House allowed the appeal. The essential function of the 2005 Act is that of the licensing of the sale of alcohol.  Since the licensing with which the Act is concerned is the licensing of the sale of alcohol, inconsistency with a licencing objective means inconsistency flowing from the permitting of the sale of alcohol on the premises. Whilst the objectives contained in the Act were desirable in a general sense, that did not empower a licensing board to insist on matters which, while perhaps unquestionably desirable in that sense, are nevertheless not linked to the sale of alcohol.

In other words, the Board was not entitled to refuse to grant a licence on the basis of breaches of its Code of Practice where the provisions breached did not relate to the sale of alcohol.

A full report of the decision is available from Scottish Courts here.

The scenes shown in the BBC Panorama programme were truly shocking.   To date 12 people have been arrested in connection with the inquiry being conducted by the police.

The Panorama programme was contacted by whistleblower Terry Bryan who alerted the BBC with his concerns about some staff.  Mr Bryan, a senior nurse, acted after his concerns were not followed up by the home’s management or the Care Quality Commission (CQC).

The CQC published its report yesterday on its inspection of services provided at Winterbourne View.  A independently-led serious case review has already been announced by the CQC.

A number of concerns have already been raised both regarding the report published yesterday and the larger question of whether the CQC is the right body to conduct a review of the care system in England.

One point on the report published yesterday by the CQC.  The CQC defence in this matter seems to be that Castlebeck, the owners of Winterbourne View – now closed, misled them.  That is simply not good enough.

The report and a press release from the CQC can be found here.

An article from the Guardian dated 7 June can be found here.

A report from BBC news on yesterday’s report can be found here.

HM Revenue & Customs has published fresh proposals to clamp down on dishonest tax agents.

The discussion document proposes compulsory access to the working papers of dishonest tax agents, even those in the possession of a third party, but only if sanctioned by the First Tier Tax Tribunal.  Civil penalties will also be available if there has been an illegitimate loss of tax.

The discussion document can be found here.

The UK Government’s Office of Budget Responsibility’s first annual “Fiscal Sustainability Report” was published this week.   The Report has warned that government debt will reach 100% of GDP by 2058 as a result of demographic changes within the population.

17% of the UK’s population is currently over 65, expected to rise to 26% by 2061.  The effect is likely to be particularly acute in Scotland which has received lower numbers of immigrants than England making the country’s age profile even older; the care costs associated with an ageing population here are expected to rise by 74% by 2031.

Two comments sum up nicely the debate that is currently ongoing on this issue.

“David Kern, chief economist at the British Chambers of Commerce, said: “Only greater productivity and higher growth in the private sector can pay for public-sector services and public-sector pensions in the future.”

“Michelle Mitchell, Age UK charity director, said: “If we plan sensibly and carefully calibrate long-term spending and taxation decisions, there is no need for national debt to increase alongside life expectancy.”

The report can be found here.

An article from the Scotsman on this issue can be found here.

Background

This appeal concerns the question of whether the Royal Borough acted unlawfully in seeking to amend Ms McDonald’s care package by substituting her night time carer with provision of incontinence pads or absorbent sheets when Ms McDonald was not in fact incontinent.

This case shows how cruel ill health can be.   Some 30 years ago Ms McDonald was the prima ballerina of Scottish Ballet.  In 1999 Ms McDonald suffered a stroke leaving her with severely limited mobility.  She also suffers from a small and neurogenic bladder which means she has to urinate two or three times a night.  Up until now she has dealt with this by using a commode with the help of a carer provided by the Royal Borough as part of her care package.

In November 2008 the Royal Borough proposed instead that the appellant should use pads, avoiding the need for a night-time carer.  The Royal Borough argued that this would provide Ms McDonald with greater safety (preventing the risk of injury whilst she is assisted to the commode), independence and privacy and in addition reducing the cost of her care by some £22,000 per annum.  Ms McDonald’s care plan was reviewed in November 2009 and April 2010.

Ms McDonald seeks to challenge this proposal.  Ms McDonald maintains that the thought of being treated as incontinent (which she is not) and having to use pads is an intolerable affront to her dignity.

Earlier judgments   

The High Court dismissed Ms McDonald’s arguments and held that it was open to the Royal Borough to meet Ms McDonald’s need, identified in her needs assessment as “assistance to use the commode at night”, in a more economical manner by the provision of pads.

The Court of Appeal disagreed holding that the clear language of Ms McDonald’s needs assessment could not be extended in a way proposed by the High Court and at the time proceedings were commenced the Royal Borough was in breach of its statutory duty.  However, as the Royal Borough did not implement the proposal outlined above and had reassessed Ms McDonald’s care plan Ms McDonald had no substantial complaint.

Supreme Court judgment

By a majority of 4-1 Ms McDonald’s appeal was dismissed.

Reasoning

Ms McDonald put forward four arguments (The Supreme Court’s reasoning is outlined below each heading):

1.       The care plan reviews did not in fact contain a reassessment of her needs

In accordance with the “Fair Access to Care Services” guidance issued by the Secretary of State, the care review plans could and did in fact incorporate a review of Ms McDonald’s needs.  Care plan reviews are usually drafted by social workers and not lawyers and thus should be construed in a practical way.

2.       The decision breached Ms McDonald’s rights under article 8 of the European Convention of Human Rights    

Ms McDonald had not established interference with her article 8 rights.   However, even if article 8 interference was established, it would be justified under article 8(2) on the ground that it is (a) necessary for the economic well-being of the Royal Borough and the interests of other service-users and (b) a proportionate response to Ms McDonald’s needs by affording her greater privacy and protection from injury.

3.       The decision was taken in breach of section 21 of the Disability Discrimination Act 1995  

Under section 21 the Royal Borough may not operate any “practice, policy or procedure” which makes it impossible or unreasonably difficult for disabled persons to receive any benefit conferred on them.   Ms McDonald failed to show that the Royal Borough’s decision could properly be characterised as “practice, policy or procedure” and thus the Royal Borough did not breach its second 21 duty.   Even if that were not so, the Royal Borough’s acts would have been justified as constituting “a proportionate means of achieving a legitimate aim” within the mean of section 21D(5) of the 1995 Act.

4.       The Royal Borough failed to have due regard to the need to promote equality of opportunity of disabled persons under section 49A of the Disability Discrimination Act 1995 (now superseded by comparable provisions in the Equality Act 2010)

Where the Royal Borough is discharging its functions under statutes which expressly direct its attention to the needs of the disabled persons, it may be entirely superfluous to make express reference to section 49A of the 1995 Act.  It would be absurd on the facts of the present case to infer a breach of section 49A from an omission to refer to that section in any of the Royal Borough’s documentation.

Dissenting opinion  

The dissenting Justice would have allowed Ms McDonald’s appeal on a different basis outlined by Age UK in its intervention, namely that it was irrational for the Royal Borough to characterise Ms McDonald as having a need different from one she in fact has.

A full report of the decision is available from the Supreme Court here.