Whether Duty of Care

January 2nd, 2018 by admin in Judicial Control, Liability and Litigation

The Court of Appeal in CN v Poole Borough Council (2017) EWCA Civ 2185 held that there was no tortious duty of care on the part of the local authority in making a housing placement to protect children from harassment and abuse by neighbours.  Irwin LJ concluded:-

“93.    It is common ground that Parliament did not create a right of private law action for breach of the duties, or negligence in the exercise of the powers, under the Children Act relevant to this case. … the matter must be approached in terms of the existence or absence of a common law duty of care, not in terms of immunity from a duty of care which would implicitly otherwise exist. … policy considerations … bear on whether a duty of care exists, not on immunity. Read more »



December 6th, 2017 by admin in Planning and Environmental

In Dover District Council v CPRE Kent [2017] UKSC 79 the Supreme Court reviewed various statutory rules relating to the provision of reasons for planning decisions, observing that these rules are to be found in subordinate legislation and that it is hard to detect a coherent approach to their development. The three main categories of planning decision are: (i) decisions of Secretaries of State and inspectors, (ii) decisions by local planning authorities in connection with planning permission, and (iii) decisions, at any level, on applications for EIA development. Read more »


Prisoner Rehabilitation

February 1st, 2017 by admin in Human Rights and Public Sector Equality Duty

In Ansari v Aberdeen City Council (2017) CSIH 5 the Inner House of the Court of Session held that the Council owed no relevant duty to Mr Ansari under ECHR 5 to provide a reasonable opportunity for him to rehabilitate himself, in accordance with R (Haney) v Secretary of State for Justice (2015) AC 1344.  He claimed that both Scottish Ministers and the Council were in breach of that duty.  The issue was whether a relevant case had been made against the Council.  He argued that all public authorities were bound to act compatibly with ECHR rights, and that for the rights he claimed to be effective, both respondents should be subject to the duty to provide him with a reasonable opportunity for rehabilitation, having regard to the various statutory responsibilities on the Council. There was a risk of a gap he argued between the obligations arising in statute and the prisoner making progress in the phase of being partly in prison and partly outside prison.

Delivering the opinion of the Court, Lord Bracadale, who sat with Lady Paton and Lord Malcolm, said, at paragraph 26, that the duty in question was imposed on the State. It had the power to detain the prisoner relying on Article 5(1)(a), and implicitly also the duty to provide the prisoner with a reasonable opportunity to rehabilitate himself and to demonstrate that he no longer presented an unacceptable danger to the public. The Scottish Ministers accepted that the duty is incumbent on them.

“In our view”, he continued, at paragraph 27, “the Lord Ordinary was correct to hold that the local authority is in a different position. It is not responsible for the detention or release of the prisoner. It is not required to justify the continued detention for public protection reasons. The role of the local authority is to provide assistance in certain areas of the rehabilitation process before and after release. In carrying out its role in relation to rehabilitation of a prisoner the local authority operated on behalf of the Scottish ministers”. Since the Ministers accepted the duty on them, “no question of a duty gap arises”.

The fact that the Council was a public authority “does not create a freestanding duty to provide the petitioner with reasonable opportunities for rehabilitation in circumstances in which the [council is] not responsible for his imprisonment or release… The local authority having no responsibility for the decision to continue the detention of the petitioner, there is no basis for reading into article 5 an implied duty incumbent on it to facilitate his release”: paragraph 29.


Legitimate expectation

October 25th, 2016 by admin in Decision making and Contracts

In Infinis Energy Holdings Ltd v HM Treasury (2016) EWCA Civ 1030 the Court of Appeal held that the decision to remove the exemption for renewable source energy from the climate change legacy did not breach the EU principles of legitimate expectation and proportionality. In order to give rise to a legitimate expectation there had to be an undertaking, or an assurance that was precise, unconditional, consistent and lawful, not a vague indication, and the expectation had to be reasonable.



October 25th, 2016 by admin in Planning and Environmental

For the purposes of Aarhus Convention protection, “environment” is to be given a “broad meaning” : per Patterson J in R (Dowley) v SoS (2016) EWHC 2618 (Admin).


Planning conditions

March 17th, 2016 by admin in Planning and Environmental

In Dunnett Investments Ltd v SoS for CLG and East Dorset District Council [2016] EWHC 534 (Admin) Patterson J, at para 37, distilled the law on construing planning conditions in the following way:-

  1. Planning conditions need to be construed in the context of the planning permission as a whole;
  2. Planning conditions should be construed in a common sense way so that the court should give a condition a sensible meaning if at all possible;
  3. Consistent with that approach a condition should not be construed narrowly or strictly;
  4. There is no reason to exclude an implied condition but, in considering the principle of implication, it has to be remembered that a planning permission (and its conditions) is “a public document which may be relied upon by parties unrelated to those originally involved”;
  5. The fact that breach of a planning condition may be used to support criminal proceedings means that “a relatively cautious approach” should be taken;
  6. A planning condition is to be construed objectively and not by what parties may or may not have intended at the time but by what a reasonable reader construing the condition in the context of the planning permission as a whole would understand;
  7. A condition should be clearly and expressly imposed;
  8. A planning condition is to be construed in conjunction with the reason for its imposition so that its purpose and meaning can be properly understood;
  9. The process of interpreting a planning condition, as for a planning permission, does not differ materially from that appropriate to other legal documents.


Government publishes White Paper and draft Bill on overhaul of social care system

July 11th, 2012 by admin in Social Care

On 11 July 2012, the government published a White Paper, ‘Caring for our future: reforming care and support’, and its draft Care and Support Bill. The White Paper and Bill follow on from the Law Commission’s report on adult social care which was published last summer.

The government describes the Bill as follows: “This draft Bill consolidates provisions from over a dozen different Acts into a single, modern framework for care and support. It is intended to do more than bring those Acts together; it achieves a fundamental reform of the way the law works. It places the wellbeing, needs and goals of people at the centre of the legislation to create care and support which fits around the individual and works for them. It provides a new focus on preventing and reducing needs, and putting people in control of their care and support. For the first time, it brings carers into the heart of the law, on a par with those for whom they care.”

The draft Bill has been published for public consultation and pre-legislative scrutiny in Parliament. The Bill and White Paper may be found on the Department of Health’s website (www.dh.gov.uk).