Allocation Policy

July 16th, 2018 by James Goudie QC in Housing

In R (TW, SW and EM) v Hillingdon LBC [2018] EWHC 1791(Admin) the Claimants challenged the Social Housing Allocation Policy (December 2016) (“the Allocation Scheme”) of the London Borough of Hillingdon (“the Council”) in so far as it provides: (1) a condition that only households with at least 10 years’ continuous residence in-borough qualify to join the three welfare-based bands (A-C) of its housing register (“the residence qualification”); (2) additional preference for such households who are in Bands C and B of the housing register (“the residence uplift”), and (3) additional preference for those in Bands C and B who are working households on low income (“the working household uplift”). Choudhury J granted permission on three grounds. First, that both the residence qualification and the residence uplift discriminate indirectly and unlawfully under Sections 19 and 29 of the Equality Act 2010 (“EA”) against persons with the protected characteristic of “race” and that, as Irish Travellers, the Claimants have such a characteristic (Ground 1). Second, that the working household uplift discriminates indirectly and unlawfully under the same statutory provisions against persons with the protected characteristics of “disability” and “sex” (Ground 2). Third, in formulating the three provisions under challenge the Defendant acted in breach of its obligations under Section 11(2) of the Children Act 2004 (“CA”) (Ground 3).

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Homelessness Review

July 13th, 2018 by James Goudie QC in Housing

The three appeals [2018] EWCA Civ 1616 raised a common issue concerning what is required of local housing authorities in order to comply with the Review Regulations which apply to a review under Section 202 of the Housing Act 1996 when a reviewing officer sends out a minded-to letter indicating an intention to make a decision contrary to the interests of the applicant for homelessness assistance. In short, the question is whether the letter must specify in terms that the applicant (or a representative) may make representations to the reviewer orally at a face-to-face meeting. The Court of Appeal holds that there is no such requirement.   No more is required for an effective notification than to state that the applicant “may make representations to the reviewer orally or in writing or both orally and in writing”. Nothing more is required in order to conform with the principle of legality and the fundamental requisite of the rule of law that the law should be made known and that individuals must be able to know of their legal rights and obligations. Patten LJ, with whom David Richards LJ agreed, said, at paragraph 24:- Read more »

 

Recovering unpaid tax

July 5th, 2018 by James Goudie QC in Council Tax and Rates

Powys County Council v Hurst (2018) EWHC 1684 (Admin) was an appeal by way of case stated to a Divisional Court (Hickinbottom and Singh LJJ) against the decision of a District Judge (“DJ”) that the Council was required to consider proceeding under the Attachment of Earnings Act 1971 (“the 1971 Act”) as an alternative method of recovering unpaid council tax before applying to commit the Respondent to prison for non-payment of that tax. The DJ reached his decision on the basis that it was open to the Council to seek an attachment of earnings order in the County Court in respect of the Respondent’s pension. The main issue in the appeal was whether that course was open to a billing authority such as the Council as a matter of law. The Divisional Court held that it was not and allowed the appeal. Read more »

 

Council Resolutions

July 4th, 2018 by James Goudie QC in Human Rights and Public Sector Equality Duty

R (Jewish Rights Watch) v Leicester City Council (2018) EWCA Civ 1551 concerns a non-binding Full Council Resolution on a controversial matter. The Council resolved “insofar as legal considerations allow, to boycott produce originating from illegal Israeli settlements in the West Bank until such time as it complies with International law an withdraws from Palestinian Occupied territories.” Jewish Human Rights Watch argued that the resolution singled out Israel for criticism, and that the Council failed to consider the effect of so doing on the Jewish community in the UK, and in particular in and around Leicester, in breach of the PSED.  The Court of Appeal, upholding the judgment of the Divisional Court, held that on a reading of the Resolution, and of the transcript of the debate which preceded its adoption, it was clear that the Councillors had due regard to the matters set out in Section 149 of the Equality Act 2010 and had thus satisfied the PSED. Read more »

 

Injunctions

July 3rd, 2018 by James Goudie QC in Judicial Control, Liability and Litigation

In North Warwickshire Borough Council v Persons Unknown (2018) EWHC 1603 (QB) the High Court granted an injunction prohibiting “street cruising” in a local authority area. The jurisdiction to make the injunction was as follows.

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Disclosure

July 3rd, 2018 by James Goudie QC in Judicial Control, Liability and Litigation

Dr B v GMC (2018) EWCA Civ 1497 is a “mixed data case”. The majority of the Court of Appeal has ruled that in such a case there is no presumption under the DPA of non-disclosure.   Sales LJ said:-

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Publication

July 3rd, 2018 by James Goudie QC in Standards

In Taveta v FRC (2018) EWHC 1662 (Admin) Nicklin J made a number of important observations, including:-

“37.    The implied suggestion in the word “leaked” that there was something inappropriate in the media being told about the proceedings was wholly misplaced. Although, as a matter of practical expediency, urgent applications in the Administrative Court are routinely dealt with on paper, that does not in any way suggest that they are secret. The principle of open justice applies to these applications just as much to hearings in open court. As is clear from what is set out above, the Court has been astute to ensure that this matter has been conducted as far as possible in open court.”

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PSED and Planning

June 25th, 2018 by James Goudie QC in Human Rights and Public Sector Equality Duty

R (Buckley) v Bath and North East Somerset Council (2018) EWHC 1551 (Admin) was a claim for judicial review of a decision by the LPA to grant outline planning permission for a residential development comprising the demolition of up to 542 dwellings and the provision of up to 700 dwellings. One of the grounds of challenge was alleged breach of the PSED. Did the PSED apply to the grant of outline planning permission.  Lewis J said as to the applicability of the PSED:- Read more »

 

HMOs

June 21st, 2018 by James Goudie QC in Housing

MHCLG has issued detailed non-statutory Guidance for Local Housing Authorities, “Houses in Multiple Occupation and residential property licensing reform”, on the implementation of requirements set out in 2018 Statutory Instruments on the licensing of HMOs. The scope of mandatory licensing has been extended so that properties used as HMOs in England which house 5 people or more in two or more separate households will in many cases require a licence. The minimum size to be applied to rooms used for sleeping accommodation has been deferred.  Requirements have been added relating to the provision of refuse disposal in licensed properties.

Chapter 2 of the Guidance relates to the extension of mandatory HMO licensing, including implementation and transitional provisions. Chapter 3 relates to new mandatory licence conditions, that is mandatory sleeping room sizes and waste disposal requirements, including sanctions.

 

Complaint of Member Misconduct

June 21st, 2018 by James Goudie QC in Standards

In Bennis v Stratford-on-Avon District Council, EA/2017/0220, the FTT said (para 29) that details of unsubstantiated complaints against Councillors ought not generally to be disclosed to the world at large under the provisions of FOIA.  The proper approach to such information is to consider the rights of the councillor concerned as a data subject.

The FTT however did not consider exemptions under Section 36 of FOIA to prevail. The request for disclosure was of advice that the Council had received when considering the complaint that was not upheld. The advice had been provided to the MO by an Independent Person (“the IP”) under the Localism Act 2011.  Given that the IP’s views would in any event have become public if a hearing had been directed, transparency prevailed over the risk of disclosure inhibiting the IP’s views.