PSED

November 21st, 2016 by James Goudie KC in Human Rights and Public Sector Equality Duty

In the light of the PSED under Section 149 of the Equality Act 2010, what is the extent of the duty of a local housing authority under Section 184 of the Housing Act 1996 to inquire into whether the children of a mother applying for homelessness assistance may have a disability as defined by Section 6 of the 2010 Act requiring special arrangements to be made? That is the question considered by the Court of Appeal in Birmingham City Council v Wilson [2016] EWCA Civ 1137. There was a good deal of common ground between the parties on the legal issues which the Court approved and applied:-

(1)       The relevant duty of inquiry, to which the City Council was subject, whether under Section 184 of the 1996 Act, or under general principles of public law, is an obligation to take reasonable steps to inform itself of matters relevant to the carrying out of its tasks of assessing the application under Section 193 of the 1996 Act, and of doing so in a manner compatible with its PSED under Section 149 of the 2010 Act;

(2)       As to the scope of the duty of inquiry under general public law, it is for the decision-maker and not the Court, subject to Wednesbury review, to decide upon the manner and intensity of enquiry to be undertaken into any relevant factor accepted or demonstrated as such;

(3)       Where the existence or non-existence of a fact is left to the judgment and discretion of a public body and that fact involves a broad spectrum ranging from the obvious to the debatable to the just conceivable, it is the duty of the Court to leave the decision of that fact to the public body to whom Parliament has entrusted the decision-making power save in a case where it is obvious that the public body, consciously or unconsciously, are acting perversely;

(4)       A Court should be hesitant to intervene upon review in a housing appeal if the appellant’s ground of appeal relates to a matter which the reviewing officer was never invited to consider, and which was not an obvious matter he should have considered;

(5)       The impact of the PSED now contained in Section 149 of the 2010 Act is to introduce a culture of greater awareness of the existence and legal consequences of disability;

(6)       In circumstances in which a decision-maker under Section184 of the 1996 Act (or a reviewing officer under Section 202) is not invited to consider an alleged disability, it would be wrong to say that he or she should consider disability only if it is obvious;

(7)       On the contrary, he or she needs to have due regard to the need to take steps to take account of it;

(8)       The relevant question has, in the light of the PSED, become whether there has been a failure to make inquiry in relation to some feature of the evidence presented as “raised a real possibility” of disability in a relevant sense; and

(9)       The question whether the evidence presented raises a “real possibility” that any applicant for housing assistance is disabled is to be assessed by looking to see whether the Council officer subjectively considers that such a “real possibility” arises or acts in a Wednesbury irrational way in concluding that it does not.

 

 

 

 

Sex Shop Licensing

November 21st, 2016 by James Goudie KC in Environment, Highways and Leisure

In Case C-316/15, R (Hemming) v Westminster City Council the CJEU has ruled that licensing authorities are precluded by the Services Directive from requiring applicants for the grant or renewal  of a sex establishment licence to pay a fee that includes in part the cost of managing and enforcing the relevant authorisation scheme, even if that part is refundable if the application is refused.  The CJEU said:-

“29      In order to comply with Article 13(2) of the Services Directive, the charges referred to must, in the words of that provision, be reasonable and proportionate to the cost of the authorisation procedures and not exceed the cost of those procedures.

30     Since the amount of such charges may, in the light of those requirements, in no case exceed the cost of the authorisation procedure in question, it must be examined whether the costs relating to the management and enforcement of the authorisation scheme as a whole may be covered by the concept of the ‘cost of the procedures’.

31     While the Court has not yet had occasion to interpret that concept in the context of the Services Directive, it has clarified, in another context, that in calculating the amount of duties paid by way of fees or dues, the Member States are entitled to take account, not only of the material and salary costs which are directly related to the effecting of the transactions in respect of which they are incurred, but also of the proportion of the overheads of the competent authority which can be attributed to those transactions (judgment of 2 December 1997, Fantask and Others, C‑188/95, EU:C:1997:580, paragraph 30).

32      In addition, the Court has clarified – indeed, in relation to a provision of EU law expressly allowing the costs relating to the implementation, management and monitoring of a regime for issuing individual licences to be taken into account in calculating administrative costs – that the costs taken into account may not include the expenditure linked to the authority in question’s general supervisory activities (see, to that effect, judgment of 19 September 2006, i-21 Germany and Arcor, C‑392/04 and C‑422/04, EU:C:2006:586, paragraphs 34 and 35).

33      That consideration applies a fortiori as regards Article 13(2) of the Services Directive which, first, is directed only at the ‘cost of the procedures’ and, secondly, pursues the aim of facilitating access to service activities. That aim would not be served by a requirement to prefinance the costs of the management and enforcement of the authorisation scheme concerned, including, inter alia, the costs of detecting and prosecuting unauthorised activities.”

 

 

Social Care

November 21st, 2016 by James Goudie KC in Social Care

Under Section 117 of the Mental Health Act 1983 a person who has been compulsorily detained in a hospital for medical treatment for mental disorder under Section 3 of that Act is entitled, upon ceasing to be detained and leaving the hospital, to be provided with after-care services by the relevant authorities, being the responsible clinical commissioning body and the local social services authority, until such time as they are satisfied that he is no longer in need of such services.  On a proper interpretation of Section 117, is a local authority, when deciding the question of need, entitled to take into account the claimant’s available funds represented by personal injury damages? No, holds the Administrative Court in Manchester, in Tinsley v Manchester City Council [2016] EWHC 2855 (Admin).  The Judge held that the City Council was not entitled to refuse to provide after-care services under Section 117 when an applicant was in receipt of a personal injury award, notwithstanding that the award included an element for the future cost of his care, and that there was double recovery.

 

ECHR Article 8 and Planning

November 11th, 2016 by James Goudie KC in Human Rights and Public Sector Equality Duty

In R (RLT Built Environment Ltd) v Cornwall Council (2016 EWHC 2817 (Admin) Hickinbottom J dismissed a challenge to the decision of the Council as LPA to hold a Local Referendum on the making of the St Ives Neighbourhood Development Plan.  The Claimant contended that the Plan includes Policies on future housing provision, including in particular residency requirements intended to limit second home ownership in the St Ives area, which are incompatible with ECHR Article 8 (and also EU law on Strategic Environmental Assessments).  The Judge, at paragraphs 81-83, set out the following propositions with respect to the relationship between the domestic planning scheme and ECHR Article 8 and in particular planning control, eg decisions in respect of planning permission or enforcement:-

  1. Article 8 does not give a right to a home, or to have a home in a particular place;
  2. However, where someone has a home in a particular dwelling, it may interfere with the Article 8 rights of him and/or his family to require him/them to move;
  3. Whilst those rights demand “respect”, they are of course not guaranteed: in this context, as much as any other, the public interest and/or the rights and interests of others may justify interference with an individual’s Article 8 rights;
  4. Where Article 8 rights are in play in a planning control context, they are a material consideration; and any interference in such rights caused by the planning control decision has to be balanced with and against all other material considerations, the issue of justification for interference with Article 8 rights effectively being dealt with by way of such a fair balance analysis;
  5. That balancing exercise is one of planning judgment;
  6. Consequently, it may be amenable to more than one, perfectly lawful, result;
  7. The Court will interfere only if the decision is outside the legitimate range;
  8. Indeed, in any challenge, the Court will give deference to the decision of the primary decision-maker, because he has been assigned the decision-making task by Parliament, and he will usually have particular expertise and experience in the relevant area;
  9. Such a decision-maker will be accorded a substantial margin of discretion;
  10. The deference and margin of discretion will be the greater if he has particular expertise and experience in the relevant area, and/or if he is acting in a quasi-judicial capacity (such as an Inspector);
  11. If the decision-maker has clearly engaged with the Article 8 rights in play, and considered them with care, it is unlikely that the Court will interfere with his conclusion;
  12. Article 8 rights are, of course, important: but it is not to be assumed that, in an area of social policy such as planning, they will often outweigh the importance of having coherent control over town and country planning, important not only in the public interest but also to protect the rights and freedoms of other individuals;
  13. In practice, cases in which the Court will interfere are likely to be few;
  14. These propositions apply equally to decisions made in respect of plans and programmes in the planning field;
  15. Indeed, given that planning plans provide a framework for decision-making in individual cases – and, generally, human rights cannot be considered in a vacuum but only in the application of law and policy to an individual case; the margin of appreciation allowed to planning authorities in preparing such plans must be particularly broad.
  16. Furthermore, in considering whether a statutory scheme (including policy) is compliant with Article 8, it is necessary to look at the scheme as a whole, including the checks and balances that are designed to protect – or have the effect of protecting – an individual from any potential breach of Article 8;
  17. A regime is compliant with Article 8 if, as a whole, it is capable of protecting relevant Article 8 interests.

 

Environmental Impact Assessment

November 11th, 2016 by James Goudie KC in Planning and Environmental

In Birchall Gardens LLP v Hertfordshire County Council [2016] EWHC 2794 (Admin) Holgate J held that the Council’s decision to grant planning permission for a recycling facility for inert waste within the green belt was lawful.  The decision was within the exercise of the Council’s planning judgment and was not irrational.  It had correctly applied its waste allocation and green belt policies.  Its screening opinion that an environmental impact assessment (“EIA”) was not required was adequately reasoned.

Holgate J stated the legal principles as follows:-

“66.     …  A screening opinion does not involve a detailed assessment of factors relevant to the grant of planning permission; that comes later and will ordinarily include environmental factors. Nor does it include a full assessment of any identifiable environmental effects. It includes only a decision, almost inevitably on the basis of less than complete information, as to whether an EIA needs to be undertaken at all. The court should not impose too high a burden on planning authorities in relation to “what is no more than a procedure intended to identify the relatively small number of cases in which the development is likely to have significant effects on the environment.”

67. The issues of whether there is sufficient information before the planning authority for them to issue a screening opinion and whether a development is likely to have significant environmental effects, are both matters of judgment for the planning authority. Such decisions may only be challenged in the courts on grounds of irrationality or other public law error …”

“72.     … the language used in a screening opinion should be read no more critically than a decision letter. It should be read in a straightforward way as a document addressed to parties familiar with the issues …”

James Goudie QC

 

Public Health

November 11th, 2016 by James Goudie KC in Local Authority Powers

The appeal has been dismissed in National Aids Trust v NHS Commissioning Board and the Local Government Association [2016] EWCA Civ 1100.  NHS England does have the power to commission an anti-retroviral drug for use on a preventative basis for those at high risk of contracting HIV.  The question at the root of the appeal was out of whose budget the cost of medication is to be paid: the budget of NHS England; or that of local authorities.  The answer is NHS England.  This is because it is not a public health function for the purposes of the Health and Social Care Act 2012.  However, it is not possible to draw the dividing line between public health and non-public functions neatly along the lines between the prevention of ill-health and its treatment. There is no simple criterion for defining the boundaries of public health functions in a borderline case.  However, in circumstances where public health functions are not defined and the boundary line between local authority public health functions and NHS non-public-health functions is not clearly drawn in the primary legislation, it is legitimate to refer to where it is drawn in the related secondary legislation.

 

Listed Buildings/ Reasons

November 7th, 2016 by James Goudie KC in Planning and Environmental, Social Care

A LPA has a duty under Section 66(1) of the Planning (Listed Buildings and Conservation Areas) Act 1990 to have “special” regard to the desirability of preserving the listed building and its setting. In Palmer v Hertfordshire Council (2016) EWCA Civ 1061 the Court of Appeal held, consistently with paragraphs 132 and 136 of the NPPF, that (i) the concept of preserving the listed building or its setting means “doing no harm”, (ii) that could include not only encroachment or visual intrusion but also noise and smell, and (iii) if there is harm that must be given considerable importance and weight, but (iv) the weight to be given is not uniform and will depend on, amongst other things, the extent of the assessed harm and the heritage value of the asset in question, (v) the degree of harm and appropriate mitigation measures are a matter for the judgment of the LPA, and (vi) the existence of the statutory duty does not alter the approach that the Court should take to an examination of the reasons for the decision given by the decision maker.  The Court of Appeal upheld a grant of permission for poultry boiler units to be erected close to a disused railway station, that is a Grade II listed building.  The Court at paragraphs 7 and 8 set out the approach to the examination of reasons and to the reading of an officer’s report, as follows:-

“7.      The existence of the statutory duty under section 66(1) does not alter the approach that the court takes to an examination of the reasons for the decision given by the decision maker: Jones v Mordue [2015] EWCA Civ 1243; [2016] 1 WLR 2682. It is not for the decision maker to demonstrate positively that he has complied with that duty: it is for the challenger to demonstrate that at the very least there is substantial doubt whether he has. Where the decision maker refers to the statutory duty, the relevant parts of the NPPF and any relevant policies in the development plan there is an inference that he has complied with it, absent some positive indication to the contrary: Jones v Mordue at [28]. In examining the reasons given by a local planning authority for a decision, it is a reasonable inference that, in the absence of contrary evidence, they accepted the reasoning of an officer’s report, at all events where they follow the officer’s recommendation: R (Fabre) v Mendip DC (2000) 80 P&CR 500, 511; R (Zurich Assurance Ltd) v North Lincolnshire Council [2012] EWHC 3708 at [15].

8.        In reading an officer’s report, the court must not impose too demanding a standard: R (Morge) v Hampshire County Council [2011] UKSC 2, [2011] 1 WLR 268 at [36]. Such reports are addressed to a knowledgeable readership including members of the planning committee who, by virtue of that membership, may be expected to have substantial local and background knowledge. That background knowledge includes a working knowledge of the statutory test for determination of a planning application: R (Zurich Assurance Ltd) v North Lincolnshire Council at [15]. Where a claim for judicial review is based on alleged deficiencies in an officer’s report to the planning committee it normally needs to be shown that the overall effect of the report significantly misleads the committee about material matters which remain uncorrected at the meeting of the planning committee before the relevant decision is taken: Samuel Smiths Old Brewery (Tadcaster) v Selby District Council (18 April 1997). The ultimate test is whether the reasons enable the reader to understand why the matter was decided as it was and what conclusions were reached on the principal important controversial issues. The reasoning must not give rise to a substantial doubt (as opposed to what has been called a “forensic doubt”) as to whether the decision maker erred in law, although such an inference will not be readily drawn: South Bucks DC v Porter (No 2) [2004] UKHL 33, [2004] 1 WLR 1953 at [36].”

 

 

Allotments

November 3rd, 2016 by James Goudie KC in Environment, Highways and Leisure

R (Moore) v SoS for CLG and Watford Borough Council (2016) EWHC 2736 (Admin) is an unsuccessful review challenge to a decision of the SoS to grant consent to the Council under Section 8 of the Allotments Act 1925 for the appropriation under Section 122 of the Local Government Act 1972 of allotment land for use as part of a redevelopment scheme.

The SoS could grant consent only if that was justified by exceptional circumstances. Lang J rejected the Claimant’s submission that the SoS could not rely on the cumulative weight of individual factors in support of a finding of “exceptional circumstance” unless each factor amounted to an exceptional circumstance taken on its own.  She also rejected the Claimant’s submission that the SoS had failed to apply the policy in his Guidance.  On ECHR A1P1 and proportionality, the Judge found that (1) there was a legitimate aim (the benefits of the scheme), (2) the grant of consent was rationally connected to that legitimate aim, (3) that legitimate aim could not have been achieved by a less intrusive measure, and (4) on a fair balance, the benefits of achieving the aim by the measure outweighed the disbenefits resulting from the restriction of the relevant protected right.  Lang J concluded:-

“In my judgment the Secretary of State was correct to hold that the interference with the A1P1 rights of the allotment holders was justified and proportionate because of the wider public benefits to be gained by incorporation of the Allotments into the Scheme.  Given the allocation of new allotments nearby, the assistance to re-locate, and financial compensation to the allotment holders, I consider that a fair balance has been struck.”

 

 

Social Care

November 2nd, 2016 by James Goudie KC in Social Care

In Rotherham MBC v M and others (2016) EWHC 2660 (Fam) Cobb J held that it was appropriate to make a reporting restriction order sought by the Council and the Police preventing the identification not only of a very vulnerable teenage girl who was at risk of sexual exploitation but also of four adult males who had associated with her, but against whom no findings of sexual exploitation had been made. This was because naming these males risked “jigsaw identification” to the vulnerable girl.  Cobb J concluded:-

“45.    As I have indicated earlier in this judgment, there is a significant public interest in the investigation and detection of child sexual exploitation, in the state’s protection of its victims, and in the prosecution of those who perpetrate it. There is national public interest in the incidence (indeed the prevalence) of this crime in the area of Rotherham. For this reason, I decided that it would be right to hold the final hearing of these applications in public, and to name the relevant council. I have no doubt that the media have an important part to play in raising public awareness of this particular type of offence, and in reporting on the court’s approach to it.

46.    It is rightly uncontroversial in this case that Child G’s identity should be protected now and for the future. She is an extremely vulnerable young person; it would be devastating to her to be named publicly in the press as the subject of this application, and a strong deterrent to other young people who may consider coming forward to report offending of this type. Having listened carefully to the evidence of the relevant senior officers, I am satisfied that if I named the associated males, Child G would be quickly identified in the local community in which she lives. That is sufficient on its own to justify the anonymity of the four males. However, quite apart from that factor, I have reached the firm conclusion that there is no true public interest in naming the four associated males, against whom, in the end, no findings have been sought or made. The Article 8 rights of the associated males would be in my judgment significantly violated were they to be publicly exposed in the media as having been implicated to a greater or lesser degree, but not proved to be engaged, in this type of offending. Their rights, on these facts, predominate over the Article 10 rights of the press to report their names while not inhibiting the press from reporting more widely about this case. I have cross-checked these conclusions against the measure of proportionality and have unhesitatingly concluded that no lesser order will suffice; the injunction will therefore extend for their lives until or unless earlier varied or discharged.”

 

 

Secure Tenancy

November 2nd, 2016 by James Goudie KC in Housing

 

The Housing Act 1985 does not permit a second succession to a secure tenancy to members of a deceased secure tenant’s family. In Holley v Hillingdon LBC (2016) EWCA Civ 1052 the Court of Appeal considered when a proportionality defence can be raised to a possession claim.  Length of residence might form part of an overall ECHR Art 8 proportionality assessment.  However, it was unlikely to be a weighty factor.  Briggs LJ (with whom Arden and Underhill LJJ agreed) said:-

9. “… The general principles which govern the application of Article 8 to a claim for possession by a local authority of property forming part of its social housing stock from a person with no other right to be there are well settled, by the twin decisions of the Supreme Court in Manchester City Council v Pinnock [2011] 2AC 104 and Hounslow London Borough Council v Powell [2011] 2AC 186.

10. The application of those principles to a claim for possession against a surviving member of the family of a deceased secure tenant by succession occupying the property (after notice to quit) as a trespasser are fully set out and explained by this court in Thurrock Borough Council v West [2012] EWCA Civ 1435; [2013] HLR 5, in the judgment of Etherton LJ, at paragraphs 22 to 31. The general principles set out at paragraphs 22 to 26 need no repetition. In outline, the local authority will usually be seeking eviction as a proportionate means of achieving a legitimate aim because it will thereby vindicate its own unencumbered property rights, and enable it to comply with its duties in relation to the distribution and management of scarce social housing stock.”

“15. … I consider that the true analysis is as follows. First, a person seeking to rely on Article 8 will need to demonstrate a minimum length of residence in order to show that the property in question is their home, so that Article 8 is engaged. Secondly, the period of residence, however long, will not on its own be sufficient to found an Article 8 proportionality defence in the second succession context because, if it would, then it is hard to see how the English statutory prohibition of second succession could be compatible with the Convention.

16. Thirdly, length of residence may form part of an overall proportionality assessment, in the sense that all the circumstances of the case may need to be reviewed, and their effect considered in the aggregate. But fourthly, and precisely because Parliament has lawfully excluded second succession to members of a deceased secure tenant’s family, length of residence is unlikely to be a weighty factor in striking the necessary proportionality balance. A long period of residence may therefore form part of the circumstances, viewed as a whole, but is, in itself, of little consequence.”

“23. …  the concept of a discretionary succession policy is a misnomer. The provisions in Part IV of the Housing Act 1985 which deal with succession to secure tenancies do not require, or for that matter permit, local authorities to formulate and apply discretionary policies for conferring rights of second succession on persons living in the house of a secure tenant who is already a successor, upon that tenant’s death. There is, quite simply, no such entitlement. By contrast, Part VI of the Housing Act 1996 confers a wide discretion upon local authorities as to the allocation of social housing among persons applying for it, and requires that discretion to be exercised in accordance with an allocation scheme which it is required to formulate and publish.

24. A housing authority allocation scheme may make particular provision in relation to priority for members of the family of deceased secure tenants who do not have succession rights, but they are not required to do so. …”

 

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