In R (Save Britain’s Heritage) v SoS for CLG and Westminster City Council (2018) EWCA Civ 2137 the Court of Appeal considered whether there was a legitimate expectation that reasons would be given, based on a promise. The Court reaffirmed (paragraph 39) that in such a case the position is that, if a public body indicates a clear and unequivocal policy that will be followed and applied in a particular type of case, then an individual is entitled to expect that policy to be operated, unless and until a reasonable decision is taken that the policy be modified or withdrawn, or implementation interferes with that body’s other statutory duties. Read more »
Concession Contracts
October 1st, 2018 by James Goudie KC in Decision making and ContractsIn Ocean Outdoor UK Ltd v Hammersmith and Fulham LBC (2018) EWHC 2508 (TCC) the Claimant challenged the decision by the defendant (“the Council”), to enter into arrangements with Outdoor Plus Limited (“Outdoor Plus”) for the leasing of two plots of land and operation of two metal towers, with media screens and supportive software, one on each plot, in West London (“the Two Towers”) following a tender exercise.
Amenability to Judicial Review
August 29th, 2018 by James Goudie KC in Judicial Control, Liability and LitigationIn 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 »
Staff Transfers
August 29th, 2018 by James Goudie KC in Decision making and ContractsIn 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 »
Consultation / Tameside
August 16th, 2018 by James Goudie KC in Decision making and ContractsIn 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 »
Libraries
August 16th, 2018 by James Goudie KC in Land, Goods and ServicesIn 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.
Budget Allocation
August 14th, 2018 by James Goudie KC in Decision making and ContractsIn 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.
House In Multiple Occupation (“HMO”)
August 13th, 2018 by James Goudie KC in HousingR ( 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.