Discrimination

February 11th, 2019 by James Goudie KC in Decision making and Contracts

The prohibition of discrimination based on nationality is enshrined in Article 18 TFEU and Article 21(2) of the Charter of Fundamental Rights of the European Union (‘the Charter’). The broader non-discrimination principle of which it is an expression is among the fundamental values of the EU (Article 2 TFEU), and among the rights protected by the Charter (Article 21). The principle of non-discrimination is a manifestation of the principle of equality of individuals before the law.  The principle requires that comparable situations must not be treated differently and that different situations must not be treated in the same way.  Read more »

 

Adult Education

February 11th, 2019 by James Goudie KC in Local Authority Powers

From August 2019, some functions which relate to adult education, and the associated adult education budget, will be devolved to 6 Mayoral Combined Authorities (“MCAs”), and delegated to the Mayor of London (“MoL”). The Secretary of State for Education (“the SoS”) has entered into a Memorandum of Understanding (“MoU”) with the MCAs, and a separate MoU with the MoL.  Both MoUs relate to functions set out in the Apprenticeships, Skills, Children and Learning Act 2009 (“ASCAL 2009”), and exercised through the Education and Skills Funding Agency (“the ESFA”). In the case of the MoL the (revocable) delegated functions are exercisable by him only and are not capable of further delegation. The functions are to be carried out in accordance with the Greater London Authority Act 1999.

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Allocation Policy

February 11th, 2019 by James Goudie KC in Housing

Hillingdon LBC’s 2016 housing allocation policy, pursuant to Section 166A of the Housing Act 1996, was found in some respects to be unlawful in TW v Hillingdon LBC (No. 1) (2018) PTSR 1678. Lawfulness requires compliance not only with the provisions of that Act, but also compliance with the Equality Act 2010, and with obligations under Section 11 of the Children Act 2004. In particular, in TW (No. 1) Supperstone J declared Hillingdon’s 10 year residence qualification to be

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Homelessness

February 6th, 2019 by James Goudie KC in Housing

Kannan v Newham LBC (2019) EWCA Civ 57 is a case of unintentional homelessness and priority need where the “full housing duty” applies, under Section 193 of the Housing Act 1996, and is dischargeable in accordance with Section 206, the Homelessness (Suitability of Accommodation) Order 2012, and Guidance. The issue was whether accommodation provided by the Council for Mr Kannan was “suitable”. Read more »

 

Procedural Fairness

February 6th, 2019 by James Goudie KC in Decision making and Contracts

Dymoke v Association for Dance Movement (2019) EWHC 94 (QB) was a private law contractual action. Nonetheless, an implied duty of procedural fairness was found to exist, in relation to termination of membership of a company, and in particular that the claimant would be informed of complaints or concerns in sufficient detail to enable her to respond to them, and would be given a reasonable opportunity to respond.  That applied not only to the complaints or concerns, but also to the question of whether they justified the sanction of termination of membership: paragraph 65.

 

Proportionality

February 6th, 2019 by James Goudie KC in Decision making and Contracts

In R (MAS) v SoS for DEFRA (2019) EWHC 158 (Admin), Morris J, at paragraphs 53/54, stated the principles of proportionality as follows:-

(1)      Proportionality is a general principle of EU law;

(2)      Its application in any particular case is always highly fact-sensitive;

(3)      It applies to national measures falling within the scope of EU law;

(4)      It applies only to measures interfering with protected interests;

(5)      Protected interests include the fundamental freedoms governed by the EU Treaties;

(6)      Where the issue is the validity of a national measure, it is for the national Court to reach its own conclusion on proportionality; Read more »

 

Scheme for allocation of social housing

February 6th, 2019 by James Goudie KC in Housing

R (Z and others) v Hackney LBC and Agudas Israel Housing Association (2019) EWHC 139 (Admin) challenged the arrangements made by AIHA for the allocation of social housing properties owned or controlled by AIHA, which in present circumstances in effect preclude any persons who are not members of the Orthodox Jewish community from becoming tenants of such properties. The claim also challenges the lawfulness of Hackney’s arrangements as a local housing authority for the nomination of applicants to these properties, which again in present circumstances in effect precludes any persons who are not members of the Orthodox Jewish community from receiving nominations for the properties owned by AIHA. In short, the claimants contended that these arrangements discriminated against them because they are not members of the Orthodox Jewish community, and are unlawful, principally, under the Equality Act 2010. Read more »

 

Assessment of need

February 4th, 2019 by James Goudie KC in Social Care

In R (JA) v Bexley LBC (2019) EWHC 130 (Admin) there was a decision, following an assessment, that children were not in need of accommodation and support pursuant to Section 17 of the Children Act 1989 (“the 1989 Act”). The Judge described the legal framework as follows:-

(1)       The general duty under Section 17(1), together with paragraph 1 of Schedule 2 to, the 1989 Act imposes a duty upon local authorities to assess the needs of putative children in need: R (G) v LB Barnet [2004] 2 AC 208;

(2)       A child without accommodation is a child in need within the meaning of Section 17(10): R (G) v Barnet; Read more »

 

Planning Enforcement

February 4th, 2019 by James Goudie KC in Planning and Environmental

 Johnson v Windsor and Maidenhead RBC (2019) EWHC 160 (Admin) is concerned with enforcement proceedings in relation to land, pursuant to the Town and Country Planning Act 1990 (“the TCPA”). Justine Thornton QC, sitting as a Deputy High Court Judge, described the legal framework as follows:-

(1)       Planning permission is required for the carrying out of development of land;

(2)       The making of a material change in the use of land is development;

(3)       Carrying out development without the required planning permission, or failing to comply with any condition or limitation pursuant to which the planning permission has been granted, constitutes a breach of planning control; Read more »

 

Review

February 1st, 2019 by James Goudie KC in Standards

The Committee on Standards in Public Life, chaired by former M15 head, Lord Evans of Weardale, on 30 January 2019 issued a 110 page Report to the Prime Minister, following its review of local government ethical standards in England. The Report concludes that, whilst the consistency and independence of the system could be enhanced, there is no need to reintroduce a centralised body, and that local authorities should retain ultimate responsibility for implementing and applying the Seven Principles of Public Life in local government.

The Report makes 23 Recommendations. The Report also contains a list of 15 “best practice” recommendations, directed to local authorities.

 

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