TUPE

July 29th, 2024 by James Goudie KC in Judicial Control, Liability and Litigation

In BICKNELL v NHS NOTTINGHAM (2024) EAT 103, applying NICHOLLS V CROYDON LONDON BOROUGH COUNCIL (2019) ICR 542, it is held that the commissioning of services is not itself an economic entity for the purposes of TUPE following a reorganisation, unless the person commissioning the services is also providing those services on the market. For commissioning to be an economic activity, the commissioner had to supply goods and services on the market. If NICHOLLS was wrong, that had to be corrected by the Court of Appeal.

 

RIVAL APPLICATIONS

July 24th, 2024 by James Goudie KC in Planning and Environmental

Where Lidl and Aldi had each applied for planning permission to develop a discount supermarket on different parcels of land outside a Town Centre, but within the same settlement, it had been unlawful for the LPA to have granted planning permission to Aldi without comparing its proposal to that of Lidl. The need to undertake a comparison is a ” material consideration” only if it is so obviously material that it would be irrational not to assess it. However, here that high threshold was met on the facts so held in LIDL v EAST LINDSEY DC (2024) EWHC 1641 ( Admin ).

 

VICARIOUS LIABILITY

July 23rd, 2024 by James Goudie KC in Judicial Control, Liability and Litigation

The question arising on the appeal in DJ v BARNSLEY MBC (2024) EWCA Civ 841 was whether a local authority can be vicariously liable for torts committed against a child by a foster carer who is also a relative of the child. This question was left open by the Supreme Court in ARMES v NOTTINGHAMSHIRE COUNTY COUNCIL (2018) AC 355. The Court of appeal in the Barnsley case held that, on the specific facts of that case, the authority was liable. That was on the basis that the relationship between the authority and the carers was akin to employment. The Court of Appeal did not however lay down a general rule that a local authority will always be vicariously liable for torts committed by foster carers who are related to the child.  Nor did they give any indication about the circumstances in which vicarious liability might arise under the present legislation and regulatory regime.

 

CARAVAN SITE

July 23rd, 2024 by James Goudie KC in Land, Goods and Services

The appeal in TALLINGTON LAKES LTD v SOUTH KESTEVEN DC (2024) EWCA Civ 811 concerned the proper interpretation and application of the CARAVAN SITES AND CONTROL OF DEVELOPMENTS ACT 1960 (the 1960 Act). The issue was as to the payment of an annual site licence fee.

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EIR

July 18th, 2024 by James Goudie KC in Environment, Highways and Leisure

In MOONEY v INFORMATION COMMISSIONER (2024) UK FTT 620 (GRC) the FTT upholds the Commissioner’s decision that Lincolnshire County Council as a Mineral and Waste Planning Authority was entitled to rely on exemptions in the Environmental Information Regulations 2004, including that the request for information about a new Local Plan related to material which is still “in the course of completion”, which was actively being worked upon, or will continue to be worked on within a reasonable time.

That there is a strong public interest in transparency in relation to the Council’s decision making processes, where the ultimate outcome of that process will be the placing of sites for working and extracting minerals.  Given the potential impact on residents of a plant and bagging site near their homes, there is a clear public interest in transparency and in ensuring accountability for decisions taken by the Council. The wider environmental impact of the placing of a site also adds significantly to the public interest.

However, the extent to which this public interest is served by disclosure of this particular information at this particular time is limited.  No final decision had been made.  The time for public consultation on the proposed sites had not yet arrived. Information has been and will be placed in the public domain.  The process has a built in opportunity for informed scrutiny and challenge by the public at a later date before any final decisions are taken in relation to sites.

On the other hand, the FTT accepted that there is a need for a safe place for the Council to develop ideas, debate issues and reach decisions away from external interference and distraction.  They accepted that good governance is served by officers being able to fully engage with each other and third parties away from public scrutiny. While a process is ongoing.  This carries significant weight where the process is at an early stage, as in this case.  The FTT find that there is a strong public interest in maintaining the exception, and that, at the date of response to the request, even taking full account of the presumption of disclosure, the public interest clearly favoured maintaining that exception.

 

WALES

July 18th, 2024 by James Goudie KC in Council Tax and Rates

The Local Government ( Wales ) Bill has been passed. It reforms council tax and non-domestic rates in Wales.

 

HEALTH AND SOCIAL CARE RECOMMENDATIONS

July 16th, 2024 by James Goudie KC in Social Care

In MM v GREENWICH RLBC (2024) UKUT 179 (AAC) Judge Stout holds that a FTT a First-tier Tribunal when considering an appeal in relation to an education health and care plan for a 16 year old boy had failed to consider whether he had capacity to litigate, and should have appointed his mother as alternative person.  The Upper Tribunal gave a guidance on the approach of the FTT to health and social care recommendations under the Special Educational Needs and Disability (First-tier Tribunal Recommendations Power) Regulations 2017.

The guidance, at paragraph 108, is as follows.

  • Although there was no freestanding right of appeal against the contents of the health and social care sections of the EHCP, once an appeal had been brought under s.51 of the Act, the tribunal’s powers to make recommendations under the 2017 Regulations were an equal part of its jurisdiction.
  • The fact that the local authority or responsible commissioning body was only required to provide a reasoned response to the tribunal’s recommendations rather than actually comply was not a reason for the tribunal to regard its decision-making task as any less important.
  • The tribunal exercised an inquisitorial jurisdiction in relation to health and social care in the same way as it did in relation to special educational needs.
  • The primary burden was on the parties to put before the tribunal the evidence necessary to make out their respective cases. If they failed to do so, the tribunal could decide the case on the evidence before it, or direct further evidence.
  • The tribunal was not required before deciding what to order to ensure that the various statutory steps that the local authority should have carried out before making or amending the EHCP had been completed.
  • There was no statutory requirement in relation to assessment before health or social care provision could be included in an EHCP, nor did the tribunal have any express jurisdiction to order or recommend that either the responsible commissioning body or the local authority carry out an assessment.
  • Although the tribunal was not required to comply with the decision-making frameworks applicable to the local authority or responsible commissioning body, it might be relevant for it to take certain elements into account when making recommendations.
  • The social care legislative framework might also inform the tribunal’s approach where there had been a breakdown in relationships between parent and social services.
  • As a matter of good practice, in cases where health and social care recommendations were sought under the 2017 Regulations, the tribunal should require the local authority or responsible commissioning body to provide it with the relevant local criteria.
  • If the evidence the tribunal had was “thin”, it could adjourn for further evidence, or refuse to make recommendations. There was in principle nothing wrong with making recommendations on a time-limited basis if the evidence available only related to a limited period.

 

HOUSING ASSISTANCE

July 15th, 2024 by James Goudie KC in Housing

In FERTRE v VALE OF WHITE HORSE DC ( 2024 ) EWHC 1754 ( KB ) it is held that pre-settled status granted to an EU national, who had moved to the UK before Brexit, and was economically inactive, had not conferred unconditional rights, including a right to housing assistance. She was not residing in the UK on the basis of the Agreement on the Withdrawal of the UK from the EU.

 

REMOTE HEARINGS

July 11th, 2024 by James Goudie KC in Decision making and Contracts

WALK SAFE SECURITY SERVICES LTD v LEWISHAM LBC ( 2024) EWHC 1787 ( Admin) raises a pure question of law whether it is lawful for a licensing hearing before a local authority licensing committee to be held remotely. Chamberlain J holds that it is lawful, pursuant to the Licensing Act 2003 and the Licensing Act ( Hearings ) Regulations 2005. He observes that the point is of wide significance, because many local authorities conduct all or most licensing hearings remotely.

He said, at para 43, that there were 5 points relevant to interpretation that taken together favour a construction according to which remote hearings are permissible in principle. First, the term “ hearing” can be applied to both in person hearings and remote hearings. Second, the legislative context includes reference to the “ place “ at which the hearing takes place, and an online platform can properly be described as a “ place “. Third, there are “ important differences “between licensing hearings and local authority meetings. Fourth, the Regulations do not prohibit them and confer maximum procedural flexibility on licensing committees. Fifth, there is nothing in the Strasbourg Court jurisprudence to suggest that remote hearings “necessarily” gives rise to a violation of any ECHR procedural rights, albeit ( para 48 ) “ they may do so in particular cases, in which case a licensing authority would be obliged to consider alternative arrangements.”

 

CONSULTATION

July 11th, 2024 by James Goudie KC in Planning and Environmental

In R (GURAJENA) v NEWHAM LBC (2024) EWHC 1745 (Admin) the Court holds that , for the purposes of determining whether a local authority had complied with its duty to consult in relation to planning applications, “ adjoining “ embraces not only properties which are contiguous, but also those that in the judgment of the authority are very near or lying close to the application site.

 

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