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Test, Track and Trace - legal mapping response

This page has information on the following:

 


 

Business closures  Back to top

Main relevant power

Borough and district councils and unitary authorities have powers under the Public Health (Control of Diseases) Act 1984 which are relevant at the current time. They fall within the definition of local authority under that act. Staffordshire County Council only has powers relating to its social care functions under the Care Act 2014.

Authority

Part IIA of the 1984 act allows borough and district councils to apply to a Justice of the Peace to make an order in relation to persons, things or premises for the purposes of implementing health measures or in relation to groups of persons, things or premises.

Scope

In relation to premises, orders can impose the following requirements and restrictions:

  • that the premises be closed
  • that, in the case of a conveyance or movable structure, the conveyance or structure be detained
  • that the premises be disinfected or decontaminated
  • that, in the case of a building, conveyance or structure, the premises be destroyed

Investigation and enforcement

Trading Standards have been assisting by passing on information and complaints about businesses but have been doing nothing more. They are aware that there are plans for them to be involved in Test, Track and Trace but are waiting for guidance to be issued about what their role will be.

Enforcement and investigation powers rest with district and borough councils and their authorised officers, which would be environmental health officers (EHOs), as well as with the police. EHOs also have powers to enter premises under the 1984 act (section 61) and the borough and district councils have powers to prosecute for failure to comply with a restriction or requirement of an order made under part IIA of the act.

Alternative investigation and enforcement under health protection (coronavirus, restrictions) (England) regulations 2020

Where the Secretary of State directs a closure under these regulations and a business fails to comply, this can lead to the individual responsible for the business being issued a prohibition notice, a fixed penalty notice or being prosecuted. Per section 8 of the health protection (coronavirus, restrictions) (England) regulations 2020.

Investigatory powers have been provided by the Coronavirus Act 2020, which provide regulations to be made in order to allow for a judicial commissioner to be appointed by the Investigatory Powers Commissioner to act as a temporary commissioner for no more than 12 months. The powers this temporary commissioner will have are those provided by:

  • the Police Act 1997
  • the Regulation of Investigatory Powers Act 2000 and the Regulation of Investigatory Powers (Scotland) Act 2020
  • the Investigatory Powers Act 2016

Risks

Any order made by a Justice of the Peace can be appealed to the Crown Court within 21 days and this is provided for within the 1984 Act.  Orders made by the Magistrates' Court can also be challenged by judicial review.

Risk of litigation - claims for damages for loss of income caused by unlawful business closure.

Reputational damage - should the actions of Staffordshire County Council be found to be unlawful and lead to the unnecessary closure of a business.

Additional relevant legislation or considerations

Regulations have been made under the 1984 Act relating to the Coronavirus outbreak, for example the Health Protection (Coronavirus, Restrictions) (England) Regulations 2020 are made under Part IIA of the 1984 act and are the regulations which close all non-essential businesses under direction from the Secretary of State.

The Secretary of State also has the powers under schedule 22, part 2 paragraph 6 of the Coronavirus Act 2020 to issue a direction imposing prohibitions, requirements or restrictions in relation to the entry into, departure from, or location of persons in, premises in England. While not specifically a business these powers allow the Secretary of State to grant local authorities the powers to close businesses for the purpose of for the purpose of:

  • preventing, protecting against, delaying or otherwise controlling the incidence or transmission of coronavirus

        or

  • facilitating the most appropriate deployment of medical or emergency personnel and resources

 


 

School closures  Back to top

Main relevant power

Schedule 16, paragraph 1 of the Coronavirus Act 2020 ('the act').

Staffordshire County Council have no power at present to require a school to close.

Authority

  • The Secretary of State
  • The Secretary of State can also authorise a local authority (in this case Staffordshire County Council) to exercise any of its functions relating to temporary closure orders of educational institutions under paragraph 4, schedule 16 of the act

Scope

The temporary closure direction can apply to:

  • one or more named educational institutions in England
  • all educational institutions in England (or any part of England)
  • educational institutions in England (or any part of England) of a particular description

A temporary closure direction is a direction that requires the responsible body of an educational institution to which it applies, to take reasonable steps to secure that persons do not, for a specified period, attend premises of the institutions. It may require certain steps to be taken, which may relate to the attendance or to the premises of the educational institution (for example, preventing attendance from a specified group or only allowing access to specified parts of the school premises).

Before giving such a direction, the Secretary of State must have regard to any advice from the Chief Medical Officer or one of the Deputy Chief Medical Officers of the Department of Health and Social Care relating to the incidence or transmission of coronavirus, and must be satisfied that giving the direction is a necessary and proportionate action in response to the incidence or transmission of coronavirus.

These provisions apply to maintained schools and academies.

Investigation and enforcement

Numerous statutory powers exist in relation to schools executed by Ofsted, Ofqual, the local authority, the Children's Commissioner and the Secretary of State.

Ofsted has powers of entry to enable it to carry out routine inspections or urgent inspections where the circumstances warrant this, e.g. where there are leadership or governance issues or safeguarding concerns.

Risks

Staffordshire County Council have no power at present, to require a school to close and so any exercise of power would be in excess of our authority and subject to judicial review and will lead to reputational damage.

Additional relevant legislation or considerations

Public Health (Control of Disease) Act 1984 ('the 1984 Act') and the 3 sets of regulations made under the 1984 act:

  • The Health Protection (Notification) regulations 2010 (SI 2010/659)
  • The Health Protection (Local Authority Powers) regulations 2010 (SI 2010/657)
  • The Health Protection (Part 2A Orders) regulations 2020 (SI 2020/658)

Local authorities have powers to require, request or take action for the purposes of preventing, protecting against, controlling or providing a public health response to the incidence or spread of infection or contamination which presents, or could present, significant harm to human health.

Without applying to a Justice of the Peace (JP) for a part 2A order, local authorities have the power to:

  • require that a child is kept away from school
  • require a headteacher to provide a list of contact details of pupils attending their school
  • disinfect or decontaminate premises or articles on request
  • request (but not require) individuals or groups to cooperate for health protection purposes

Part 2A orders

A local authority can apply to a JP for a part 2A order if it considers it necessary to deal with a threat to human health from infection or contamination that presents, or could present, significant harm. A JP can make a part 2A order in relation to premises and can require that premises are closed, disinfected, decontaminated etc.

There is also power to enter premises.

Crucially in England a 'local athority' means a district council or a county council for an area for which there is no district council. If there is a district council, these powers would be exercised by that district council.

 


 

Care home closures  Back to top

Main relevant power

Staffordshire County Council do not have the power to close a care home. This remains a function of the Care Quality Commission (CQC) (legislation not cited).

Staffordshire County Council have duties, rather than powers where a care home closes. Sections 19 and 48 to 57 of the Care Act 2014 and the Care and Support (Business Failure) Regulations 2015 can assist, as well as sections in the care and support statutory guidance relating to service interruption and business failure or continuity which deal with care home closures.

Authority

The power to close remains with the CQC.

Duties due to closure are, however, imposed on Staffordshire County Council and are set out in full below. 

Scope

If a provider of any size is unable to continue because of business failure, the duties on local authorities are as follows:

  • local authorities are under a temporary duty to meet people's needs when a provider is unable to continue to carry on the relevant activity in question because of business failure. The duty applies when a service can no longer be provided and the reason for that is that the provider's business has failed. If the provider's business has failed but the service continues to be provided then the duty is not triggered. This often may happen in insolvency situations where an administrator is appointed and continues to run the service.
  • the duty applies where a failed provider was meeting needs in the authority's area. It does not matter whether or not the authority has contracts with that provider, nor does it matter if all the people affected are self-funders (for example, arranging and paying for their own care). The duty is in respect of people receiving care by that provider in that authority’s area - it does not matter which local authority (if any) made the arrangements to provide services.
  • the needs that must be met are those that were being met by the provider immediately before the provider became unable to carry on the activity. Local authorities must ensure the needs are met but how that is done is for the local authority to decide, and there is significant flexibility in determining how to do so, as set out in section 8 of the Care Act. It is not necessary to meet those needs through exactly the same combination of services that were previously supplied. However, when deciding how needs will be met, local authorities must involve the person concerned, any carer that the person has, or anyone whom the person asks the authority to involve. Where the person lacks capacity to ask the authority to do that, the local authority must involve anyone who appears to the authority to be interested in the person’s welfare. Where a carer's service is involved, local authorities must involve the carer and anyone the carer asks the authority to involve. The authority must take all reasonable steps to agree how needs should be met with the person concerned. It should seek to minimise disruption for people receiving care, in line with the wellbeing principle and, although authorities have discretion about how to meet needs, the aim should be to provide a service as similar as possible to the previous one.
  • an authority has the power, where it considers this necessary to discharge the temporary duty, to request that the provider, or anyone involved in the provider's business as it thinks appropriate, to supply it with information that it needs. This may involve, for example, up-to-date records of the people who are receiving services from that provider, to help the local authority to identify those who may require its support.
  • the authority should act promptly to meet people's needs. The lack of a needs or carer's assessment or a financial assessment for a person must not be a barrier to action. Neither is it necessary to complete those assessments before or whilst taking action. Similarly, authorities must meet needs irrespective of whether those needs would meet the eligibility criteria. All people receiving services in the local authority’s area are to be treated the same. In particular, how someone pays for the costs of meeting their needs - for example, in full by the person themselves - must have no influence on whether the authority fulfils the duty. However, an authority may charge the person for the costs of meeting their needs, and it may also charge another local authority which was previously meeting those needs, if it temporarily meets the needs of a person who is not ordinarily resident in its area. The charge must cover only the actual cost incurred by the authority in meeting the needs. No charge must be made for the provision of information and advice to the person.

Investigation and enforcement

The power to investigate and enforce sits with the CQC.

If the investigation is whether or not the test, track and trace measures have actually been implemented, Staffordshire County Council can request documentation from the care home in relation to the records kept. This should fall within the scope of being a standard contractual issue.

Staffordshire County Council can impose conditions on care home managers via the deprivation of liberty safeguards (DoLS) process to ensure that it is a condition of every standard authorisation that the protected person is tested regularly. As the supervisory body for DoLS, Staffordshire County Council can call on those records.

Risks

The challenge to the closure of a care home is usually via judicial review. We do not have the power to close a care home, but we have a duty to step in to ensure that the needs of those affected continue to be met.

Additional relevant legislation or considerations

The major issues will be transparency and communication with residents, impact assessment surrounding the closure, consultation with residents and families, up to date needs assessment of each resident and ensuring choice a suitable alternative placements is available. Partnership with the NHS is likely to be required.

 


 

Printable version  Back to top

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