Non-payment of Council Tax

January 23rd, 2017 by James Goudie KC in Council Tax and Rates

In R (Woolcock) v Bridgend MC (2017) EWHC 34 (Admin) Lewis J quashed a suspended committal order, pursuant to Regulation 47 of the Council Tax (Administration and Enforcement) Regulations 1992, because no proper means assessment had been carried out and the suspension period was manifestly excessive.  Lewis J said:-

“27.   The general principles governing the making of an order under regulation 47 of the Regulations are relatively well established in the case law.  For present purposes, the material principles are these.  First, the power to commit is intended to be used to extract payment of the debt not to punish the debtor.  Secondly, it is clear from the terms of the regulation that the magistrates’ court must conduct a means inquiry in the presence of the debtor and must consider whether the failure to pay is the result of wilful default or culpable neglect.  Thirdly, an order may be made if, but only if, the debtor is guilty of culpable neglect or wilful default. The means inquiry will need to consider the period or periods in respect of which liability is due in order to determine, amongst other things, whether non-payment is the result of culpable neglect.  Further, the means inquiry will need to consider the present position of the debtor to enable the magistrates’ court to determine whether the debtor is in a position to pay the debt and the magistrates’ court will need to consider what enforcement options are available to it to secure payment of the debt: …

  1. In the present case, in my judgment, there has not been a proper and adequate inquiry into the Claimant’s means. First, such an inquiry will need to consider income and expenditure to determine what the reasonable disposal income of the debtor was in relation to the periods in question. …
  2. Secondly, in my judgment, the magistrates did not carry out an adequate assessment of means for the purpose of determining whether to commit for non-payment, or to remit part or all of the debt. … They needed to determine whether or not the Claimant could make such payments or whether part or all of the debt should be remitted …
  3. Thirdly, the period of suspension for payment of the debt should not be an unreasonable or disproportionate period. If the period for repayment is unduly long, a suspended committal may be unlawful. Thus, the courts have indicated that periods of suspension in excess of 3 years are likely to be excessively long and so unlawful: …”

“38.    … The magistrates’ court failed to carry out a proper and adequate means inquiry as required by regulation 47 of the Regulations and were not in a position to determine if non-payment was the result of culpable neglect nor whether the orders were appropriate mechanisms for enforcing the debt. Further, the period of suspension was manifestly excessive and disproportionate. …”

 

Traffic Regulation Orders and the Equality Act

January 19th, 2017 by James Goudie KC in Environment, Highways and Leisure

In Hamnett v Essex County Council (2017) EWCA 6, the Appellant, who is disabled, and the group which she chairs, were concerned at the impact upon them of Experimental Traffic Regulation Orders (“ETROs”), and in particular the removal of disabled parking.  She made an application for statutory review of the ETROs under the Road Traffic Regulation Act 1984 (“RTRA 1984”).  Her case alleged not only breach of the PSED but also breach of Section 29 of the Equality Act 2010 (“the 2010 Act”).  It failed for lack of jurisdiction.  Gross LJ, with whom Tomlinson and King LJJ agreed, said:- Read more »

 

Human Rights Damages

January 19th, 2017 by James Goudie KC in Human Rights and Public Sector Equality Duty

In GD v Wakefield Council and West Yorkshire Police (2016) EWHC 3312 (Fam) Cobb J awarded damages for the significant harm caused by local and police authorities that had breached the ECHR Articles 6 and 8 rights of a mother and her two children in the conduct of investigations and public law proceedings under Part IV of the Children Act 1989.

 

PSED

January 18th, 2017 by James Goudie KC in Human Rights and Public Sector Equality Duty

In Hackney LBC v Haque (2017) EWCA Civ 4 the Council as local housing authority succeeded in an appeal against a decision that it had failed to comply with the Public Sector Equality Duty when determining whether accommodation which it provided pursuant to its duties under Part VII of the Housing Act 1996 (“HA 1996”) to a disabled homeless man was suitable. The duty in question was the full housing duty under Section 193.  These duties had been considered by the Supreme Court in Hotak v Southwark LBC (2016) AC 811. In the Hotak case, the PSED impacted upon the housing authority’s determination of the question whether the applicant had a priority need ie whether the authority owed him the full housing duty at all. In the Haque case the PSED impacted upon the question, raised by an applicant to whom the full duty is owed, whether the accommodation already provided was “suitable” within the meaning of HA Sections 206 and 210.  The PSED is of course engaged in the course of any decision-making about the suitability of accommodation made available for occupation under HA Section 193(2), when the applicant is in priority need for accommodation because he is vulnerable as a result of disability. This is because that person has a disability within the meaning of Section 6 of the Equality Act 2010 (“EA”), and because disability is a relevant protected characteristic which attracts the PSED, under EA Section 149. Read more »

 

Green Belt

January 17th, 2017 by James Goudie KC in Planning and Environmental

In R (Boot) v Elmbridge BC [2017] EWHC 12 (Admin) Amanda Boot sought to quash the Council’s decision to grant planning permission for a new football and athletics facility in Walton-on-Thames in Surrey (“the Site”).  The Site is a 14 hectare former landfill site requiring remediation. It is located within the metropolitan Green Belt, adjacent to the river Thames. The purpose of the planning application was to construct the “Waterside Drive Sports Hub”. This is intended to provide a shared ground for Walton Casuals FC, Walton and Hersham FC and Walton Athletics Club. The proposed development would utilise land that is currently occupied by one football pitch for Walton Casuals FC, an area of informal open space and scrub land. All existing structures on the Site would be demolished.

Two grounds of challenge were advanced: that the Council’s Planning Committee had erred in its interpretation of paragraph 89 of the NPPF; and that the Council had failed to have regard to a material consideration. Supperstone J rejected the latter challenge. However, he upheld the former.  Paragraph 89 provides that a LPA should regard the construction of new buildings as inappropriate in the Green Belt save for the provision of appropriate facilities for outdoor sport and outdoor recreation, “as long as it preserves the openness of the Green Belt and does not conflict with the purposes of including land within it”.

The Claimant contended that the question of law raised by her first ground of challenge was whether a new sports facility could be appropriate development even if it caused harm to the openness and purposes of the Green Belt. This was suggested because the Council found that the new stadium would cause harm to the openness and purposes of the Green Belt, but (despite this) found it was appropriate development and complied with paragraph 89 of the NPPF. The Claimant submitted that the Council’s interpretation of the policy was wrong. Her Counsel contended that if a new sports facility caused harm to the openness of the Green Belt (even limited harm) it was not appropriate development.  He submitted that if a proposal has an adverse impact on openness, the inevitable conclusion is that it does not comply with a policy that requires openness to be maintained. A decision maker does not have “any latitude” to find otherwise, based on the extent of the impact. In the present case the Council concluded that there was an adverse impact on openness, but nevertheless granted permission without giving consideration to whether under paragraphs 87 and 88 of the NPPF there were very special circumstances that would justify it. Supperstone J accepted these submissions.  In his judgment the Council erred in its interpretation of paragraph 89 of the NPPF.

 

 

Local Connection

January 16th, 2017 by James Goudie KC in Housing

In R (Kensington RLBC) v Ealing LBC [2017] EWHC 24 (Admin) the Judge described the case as a local connection referral case raising an important point of principle with respect to determining upon which housing authority the housing duty falls where there has been a cessation of housing duty by one authority and a new application made to another housing authority.

The Interested Party is disabled and has four children who are dependent upon her. She had been living in Ealing since 2008. From 31 August 2012 she lived in private accommodation at 42 Curzon Road, Ealing, W5 1NF (“Curzon Road”).  In March 2015, she applied to Ealing for housing assistance pursuant to the provisions of the Housing Act 1996 (“HA 1996”), Part VII. Her landlord at Curzon Road had commenced possession proceedings against her and Ealing accepted a main housing duty towards her, pursuant to the provisions of Section 193 of the HA 1996. Read more »

 

Local Government Finance Bill

January 16th, 2017 by James Goudie KC in Council Tax and Rates

This Bill, introduced in the House of Commons on 13 January 2017 (Bill 122), and which applies in England only, follows the Government’s announcement, in October 2015, that, by the end of the present Parliament, local government would retain 100% of locally raised taxes. The changed system is also designed to strengthen incentives for local authorities to grow their business rate income.

The Bill is made up of four parts:-

Part 1: Local Government Finance Settlement

Local retention of non-domestic rates – provides a framework to allow local government to retain 100% of non-domestic rates.

Local government finance settlement – replaces the yearly local government finance settlement with a multi-year settlement.

Council tax referendum principles – replaces the yearly council tax referendum principles with multi-year principles Read more »

 

Affordable Housing

January 3rd, 2017 by James Goudie KC in Planning and Environmental

When a local planning policy obliges a developer to provide an element of affordable housing on sites in excess of stated thresholds, an issue may arise as to whether to aggregate two (or more) sites or whether two (or more) sites should be treated as forming part of a larger whole. Absent a definition of sites, the determination of such an issue relates to the application rather than the interpretation of policy, is a matter of planning judgment, and is challengeable only if irrelevant factors are taken into account or if an obviously relevant consideration is not taken into account or if the judgment is otherwise irrational: New Dawn Homes Ltd v SoS for CLG and Tewkesbury Borough Council [2016] EWHC 3314 (Admin), considering the Brandlord case.

 

DoLS

December 23rd, 2016 by James Goudie KC in Social Care

The issue in SoS for Justice v Staffordshire County Council and SRK (2016) EWCA Civ 1317 was whether, in order for the United Kingdom to avoid being in breach of Article 5(1) of the European Convention on Human Rights (“the Convention”), it is necessary for a welfare order to be made by the Court of Protection (“the CoP”) pursuant to the Mental Capacity Act 2005 (“the MCA”) in a case where an individual, who lacks the capacity to make decisions about where to live and the regime of care, treatment and support that he should receive, is to be given such care, treatment and support entirely by private sector providers in private accommodation in circumstances which, objectively, are a deprivation of his liberty within the meaning of Article 5(1) of the Convention (“Article 5(1)”). The appeal was by the Secretary of State for Justice (“the SoS”) from a welfare order made on 24 May 2016 pursuant to the MCA ss. 4 and 16 by Charles J as the Vice President of the CoP (“the May 2016 order”). By the May 2016 order the Judge (1) declared that (a) the second respondent, SRK, lacked capacity to conduct the proceedings and to make decisions relating to where he should live and what care and treatment he needed, and (b) the restrictions in place pursuant to his care plan constituted a deprivation of SRK’s liberty for the purposes of the MCA; and (2) (among other things) ordered that it was in SRK’s best interests to reside at Greenglade, his home (“the property”), and to receive care and support pursuant to care plans dated 1 July and 5 July 2015; and, to the extent that those arrangements and the restrictions in place pursuant to the care plans were a deprivation of SRK’s liberty, such deprivation of his liberty was thereby authorised as being in his best interests.  The SoS’s stance was that the alleged deprivation of liberty (arising out of the private care arrangements in SRK’s particular circumstances) was not imputable to the State and therefore it was not a deprivation of liberty for the purposes of the MCA. It was common ground that (1) SRK lacked capacity to make decisions on the regime of care, treatment and support that he should receive; (2) SRK’s care regime was in his best interests (within the MCA ss.1(5)) and the least restrictive available option to best promote his best interests (as required by the MCA s.1(6)); (3) the property was SRK’s private residential property; (4) the accommodation and package of care were arranged without any involvement by the Council; (5) the package of care was managed by a private specialist brain injury case manager; (6) the care was funded using compensation money; (7) the carers were provided to SRK privately; and (8) the arrangements confined SRK to the property for a not negligible length of time, and he was there subject to continuous supervision and control and was not free to leave. Read more »

 

Reasons

December 23rd, 2016 by James Goudie KC in Decision making and Contracts

R (Shasha) v Westminster City Council (2016) EWHC 3283 (Admin) concerned a grant of planning permission under delegated powers.  An issue was as to the giving of reasons. It was submitted that there was an obligation to provide reasons by virtue of Regulation 7 of the Openness of Local Government Bodies Regulations 2014 (“the 2014 Regulations”).

Part 3 of the 2014 Regulations (which contains Regulation 7) was made under Section 40(3) of the Local Audit and Accountability Act 2014. For the purposes of that Part a “relevant local government body” includes bodies which are local planning authorities.  Regulation 7(1) provides that a decision-making officer must produce a written record of any decision which falls within paragraph (2).  A “decision-making officer” is “an officer of a relevant local government body who makes a decision which falls within Regulation 7(2)”. As soon as reasonably practicable after the required record is made it must be made available to the public, together with any background papers, in accordance with the provisions of Regulation 8.  Read more »

 

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