Staff Transfers

August 29th, 2018 by James Goudie QC in Decision making and Contracts

In Nicholls v Croydon LBC and Hacker v Croydon LBC, UKEAT/0033 and 0004/18/RN, the employment of the Claimants (BMA Appellants and Unite Appellants) transferred on 1 April 2013 from the Croydon Primary Care Trust (“the Trust”) to the London Borough of Croydon (“the Council”).  In connection with the transfer, the Secretary of State made the Health and Social Care Act 2012 (Croydon Primary Care Trust) Staff Transfer Scheme 2013 (“the Staff Transfer Scheme”).  He did so in exercise of the powers conferred by Section 300 of the Health and Social Care Act 2012.  Read more »

 

Amenability to Judicial Review

August 29th, 2018 by James Goudie QC in Judicial Control, Liability and Litigation

In R (Ames) v Lord Chancellor (2018) EWHC 2250 (Admin) a Divisional Court (Holroyde LJ and Green J) revisited the issue of when a public law function is being exercised with can properly be the subject of judicial view. The Defendant contended that the challenged decision was made at the conclusion of a course of negotiation of a contract and lacked any public law element. Following a review of the authorities, the Court, at paragraph 55, derived the following principles:- Read more »

 

Community Care Assessments

August 16th, 2018 by James Goudie QC in Social Care

R ( VI ) v Lewisham LBC ( 2018 ) EWHC 2180 ( Admin ) is concerned with the Care Act 2014, the Care & Support ( Eligibilty Criteria ) Regulations 2015, and related guidance. The Judge reiterated ( para 67 ) that community care assessments must not be subject to over-zealous textual analysis, and ( para 68 ) that the level of detail required in an assessment is essentially a matter for the local authority.

 

Libraries

August 16th, 2018 by James Goudie QC in Land, Goods and Services

In R ( WX ) v Northamptonshire County Council ( 2018 ) EWHC 2178 ( Admin) Yip J ruled that the Council’s library closure decisions were unlawful. The grounds considered were the duties under the Public Libraries and Museums Act 1964, with respect to consultation and the PSED, and under Section 11 of the Children Act 2004 and Section 5A(1) of the Childcare Act 2006. Yip J said, at para 116, that the need to make savings was “ a legitimate, indeed, necessary driver”for further cuts, but it not relieve the Council’s duty to Act lawfully.

 

Consultation / Tameside

August 16th, 2018 by James Goudie QC in Decision making and Contracts

In R ( Langton ) v SoS for DEFRA ( 2018 ) EWHC 2190 ( Admin ) Sir Ross Cranston restated principles in relation to consultation as follows.

Para 104 : there is a “ high threshold” of being “ clearly and radically wrong “ so as to render a consultation procedurally unfair and thus unlawful.

 Para 105 : a consultation has to be considered in its statutory context.

 Para 106 : once a consultation is launched it must be carried out fairly, but the statutory context is relevant when considering the performance of the consultation duty, the specific matters on which to consult, and the basis upon which the consultation should proceed.

 Para 109 : only in exceptional cases and special circumstances is reference required to “ discarded alternatives”.

 Para 115: as to how consultation responses are addressed, for unlawfulness the claimant must establish that a matter was such that no reasonable decision maker would have failed in the circumstances to take into account as a relevant consideration. Read more »

 

Budget Allocation

August 14th, 2018 by James Goudie QC in Decision making and Contracts

In R ( KE ) v Bristol City Council ( 2018 ) EWHC 2103 ( Admin ) the Court quashed the Council’s High Needs Block budget allocation, which reduced expenditure on Special Educational Needs. The Judge found that there had been a duty to consult by reason of the duty of inquiry under the PSED, Section 27 of the Children and Families Act 2014, and common law. He also found that there was a breach of Section 11 of the Children Act 2004.

 

Local Government Reorganisation

August 14th, 2018 by James Goudie QC in Local Authority Powers

R ( Christchurch BC ) v SOS for HCLG ( 2018 ) EWHC 2126 ( Admin ) concerned a challenge by the Council to the decision of the SOS to use his power in section 15 of the Cities and Local Government Devolution Act 2016 to lay Regulations before Parliament to amend the Local Government and Public Involvement in Health Act 2007 to enable a proposal to reorganise local Government in Dorset which would abolish all the existing Dorset authorities. The challenge failed. The Council argued that the Regulations were ultra vires and unlawful because they were retrospective. The proposal was in existence before the Regulations came into effect. Sir Ross Cranston rejected this argument. He held that there was no vice of retrospectively and no unfairness and that in any event the Regulations are procedural in character and any presumption against retrospectively does not apply. He also found that the claim had not been brought promptly and that there was no justification for an extension of time.

 

House In Multiple Occupation (“HMO”)

August 13th, 2018 by James Goudie QC in Housing

R ( Gaskin ) v Richmond upon Thames LBC ( 2018 ) EWHC 1996 ( Admin ) concerned a narrow, but important, issue, namely whether the owner of a HMO provides a “ service “ for the purposes of the EU Services Directive and the lawfulness under EU law of the fee demanded by the Council for a renewed licence. The Divisional Court held that in letting and managing private residential accommodation for profit Mr Gaskin did provide a “service” within the scope of the Directive, where the term is used in a very broad sense; and that the licensing provisions of Part 2 of the Housing Act 2004 are an authorisation scheme for the purposes of the Directive and Regulations. Therefore the Council was not entitled to demand payment of a licence renewal fee which infringed the Directive because it was not limited to the costs of the procedures and formalities of the authorisation scheme.

 

Homelessness

August 8th, 2018 by James Goudie QC in Housing

The issue on the appeal in Lomax v Gosport Borough Council (2018) EWCA Civ 1846 was whether the Council correctly applied Sections 175 and 177 of the Housing Act 1996 in concluding that it was reasonable for a severely disabled applicant for housing to continue to occupy her accommodation. In concluding that the Council’s conclusion was erroneous, the Court of Appeal said that in determining whether it is reasonable for a particular applicant to continue to occupy her current accommodation the same approach should be adopted as to reasonableness as in the case of the question whether an applicant has unreasonably refused an offer of suitable accommodation. The decision maker must have regard to all the personal characteristics of the applicant, and then take into account of those individual aspects. This includes subjective factors and an objective test. The test is with respect to the particular applicant and the particular accommodation, including its location.

 

Consultation

August 1st, 2018 by James Goudie QC in Decision making and Contracts

In R ( Brooke Energy Ltd ) v SOS for BEIS (2018) EWHC 2012 ( Admin ) a Divisional Court has restated the principles as to when there is a non-statutory duty to consult. The circumstances in which the common law will impose a duty on a public authority to consult by virtue of the doctrine of legitimate expectation are threefold. First, where there has been a promise to consult. Second, where there is an established practice of consultation. The alleged practice or promise must be clear, unequivocal and unconditional. A practice must be sufficiently settled and uniform to give rise to an expectation that the claimant would be consulted. Moreover, there must be unfairness amounting to an abuse of power for the public authority not to be held to the practice.

Third, a duty to consult will be imposed where a failure to consult would lead to conspicuous unfairness. However, the duty will arise on this basis only in exceptional situations.