Partnership Arrangements: Wales

December 18th, 2015 by James Goudie KC in Social Care

The Partnership Arrangements (Wales) Regulations 2015, SI 2015/1989 (W.299), made pursuant to the Social Services and Well-being (Wales) Act 2014, make provision for partnership arrangements between local authorities and Local Health Boards; and set out the requirements for each Local Health Board, and the local authorities within the area of each Local Health Board, to take part in partnership arrangements for the carrying out of specified health and social services functions. The Regulations also make provision, amongst other things, for the operation and management of the partnership arrangements, the establishment of regional partnership boards and the establishment and maintenance of pooled funds.

Regulations 2 to 8 describe the Local Health Boards and the local authorities which are to take part in partnership arrangements. They also require the establishment of seven regional partnership boards and require the partnership arrangements to be carried out under the direction of a specified regional partnership board.

Regulation 9 and Schedule 1 describe the functions of Local Health Boards and local authorities which are to be carried out by the partnership arrangements. Regulations 10, 11 and 12 provide for the objectives of the regional partnership boards, together with membership and reporting requirements.  Regulation 13 provides for the sharing of information between partnership bodies, integrated family support teams and regional partnership boards.  Regulation 14 enables each partnership body to delegate functions to another partnership body for the purposes of the partnership arrangements.

Regulations 15 to 18 contain specific provision in relation to partnership arrangements for carrying out family support functions (as specified in Schedule 4) and the establishment of integrated family support teams. These arrangements are intended to provide continuity with current arrangements under Part 3 of the Children and Families (Wales) Measure 2010.

Regulation 19 requires pooled funds to be established and maintained in relation to specific functions of partnership bodies.

 

Extensions of Time

December 17th, 2015 by James Goudie KC in Judicial Control, Liability and Litigation

In Bromley LBC v Heckel [2015] EWHC 3606 (TCC) Edwards-Stuart J held that it was not appropriate to extend a claimant local authority’s time for service of Particulars of Claim (pursuant to an application made before the time for service of the Particulars of Claim had expired) where the authority (1) had not issued proceedings until the last minute and (2) could have pleaded an arguable case against the defendant project manager within the time required by the rules (or the Claim Form would have been an abuse of the process of the Court if the claimant was unable to set out the nature of the case that it intended to make).  The Court’s discretion would not be exercised in the claimant’s favour.  Parties who issue late are “obliged to act promptly and effectively”.

 

Ineffective Contract

December 17th, 2015 by James Goudie KC in Decision making and Contracts

 In Lightways (Contractors) Limited v Inverclyde Council [2015] CSOH 169 the Outer House of the Court of Session made a declaration of ineffectiveness in respect of the award of a street lighting call-off contract to an economic operator which was not a party to the relevant framework agreement, albeit it was a company in the same group as a party to that agreement.

 

Deciding What Is Most Appropriate

December 15th, 2015 by James Goudie KC in Decision making and Contracts

Section 22C(5) of the Children Act 1989 requires a local authority to place a child in the placement which, in the authority’s opinion, is “the most appropriate placement available”. Must the authority consider all placements available at the relevant time and search for a placement with every potential provider?  No, ruled William Davis J in R (Nationwide Association of Fostering Providers v Bristol City Council and Others [2015] EWHC 3615 (Admin).  He held (paragraph 44) that: “No duty is imposed to ensure that there are independent providers as well as in-house providers”, and (paragraph 45) that: “No specific requirements are made of a local authority in relation to the “most appropriate placement”.”

The Judge concluded (paragraph 59) that the statutory duty did not require a local authority to contact all providers of potentially appropriate placements at the same time for every “looked after” child, for reasons including that:-

– The duty is not a procedural duty. It is an outcome duty. How a local authority goes about fulfilling that duty is a matter of policy within the discretion of the local authority subject to any express regulatory provisions.

– The word “appropriate” of itself implies an exercise of judgment by a local authority. Moreover, the judgment is one subject to the “opinion” of the local authority.

– The statutory provisions require a local authority to make decisions in relation to “looked after” children in its care in such a way as to safeguard and promote their welfare. They do not set out precisely how a local authority should make such decisions.

 

Highway Authority Duty

December 11th, 2015 by James Goudie KC in Environment, Highways and Leisure

In Rollinson v Dudley MBC [2015] EWHC 3330 (QB) Haddon-Care J held that local highway authorities do not have a duty under Section 41(1) of the Highways Act 1980 to ensure that its roads, pavements and footpaths are clear of moss, algae, lichen or similar vegetation.  The Judge summarised the relevant principles as follows (paragraph 24): (1) the Section 41(1) duty, to maintain the highway, is properly to be understood as being to “repair” and “keep in repair” the highway; (2) the duty does not include a duty to remove surface-lying material, accretions, obstructions or spillages, whether or not dangerous; and (3) the duty does include a duty to keep the drains and substructure of the highway clear and in good repair.  The Judge held (paragraph 27) that none of those applicable principles or criteria applied in the case before him: (1) moss or algae is, by its nature, to be regarded as transient rather than permanent; (2) the presence of moss or algae cannot be said to amount to, or comprise, material “disturbance or damage” to a road, pavement or pathway or the surface thereof; and (3) moss or algae cannot be said to have become part of the “fabric” of the road, pavement or pathway.

 

Disability Discrimination

December 11th, 2015 by James Goudie KC in Human Rights and Public Sector Equality Duty

As is well known, the relevant law on disability discrimination is now found in the Equality Act 2010, which replaced provisions formerly contained in the Disability Discrimination Act 1995. The Equality Act gives effect to the United Kingdom’s EU obligations under Directive 2000/78/EC (“the Equality Directive”). The principle of equal treatment prohibits discrimination on certain prescribed grounds, such as race, sex and sexual orientation, and these include disability. The structure of the Act is that it defines the meaning of discrimination and then identifies the circumstances when it is unlawful. There are four forms of disability discrimination: direct discrimination (Section 13), indirect discrimination (Section 19), discrimination arising from disability (formerly called disability-related discrimination) (Section 15), and a failure to make reasonable adjustments (Section 20). The direct and indirect discrimination principles apply to all the prescribed characteristics, but the reasonable adjustments duty and the duty not to commit discrimination arising out of disability are unique to disability cases. They are a recognition of the fact that the difficulties faced by disabled workers are very different from those experienced by people subjected to other forms of discrimination. These two duties unique to discrimination therefore secure more favourable treatment and are closely interrelated.

Section 20 of the Act, the duty to make reasonable adjustments, which requires affirmative action in certain situations, was relied upon in Griffiths v Secretary of State for Work and Pensions [2015] EWCA Civ 1265.  The effect of Section 21 is that a failure to comply with the Section 20 duty to make reasonable adjustments amounts to an unlawful act of discrimination.

From paragraph 22, Elias LJ addressed the relationship of Section 20 to other forms of disability discrimination. He drew attention to various matters, including that the definition of discrimination arising out of disability does not involve any comparison with a non-disabled person; it refers to unfavourable treatment, not less favourable treatment; and that it is perfectly possible for a single act of the employer, not amounting to direct discrimination, to constitute a breach of each of the other three forms.

Elias LJ, at paragraph 48, ruled that it was an error to assume that the ruling of the House of Lords in Lewisham LBC v Malcolm [2008] UKHL 43, (2008) 1 AC 1399, which was concerned with the nature of the appropriate comparison under the old concept of disability-related discrimination, is applicable to the obligation to make reasonable adjustments. That comparison is inapt in the case of the adjustment duty.

 

Pension Liability

December 11th, 2015 by James Goudie KC in Judicial Control, Liability and Litigation

When is there an entitlement to early payment of an unreduced pension pursuant to Regulation 19 of the Local Government Pension Scheme (Benefits, Membership and Contributions) Regulations 2007, SI 2007/1166, as amended?  Regulation 19(1) provides that where a LGPS member is dismissed, either by reason of redundancy or because his employing authority has decided that, “on the grounds of business efficiency”, it is in their interests that he should leave their employment, and, in either case, the member has attained the age of 55, he is entitled to immediate payment of retirement pension, without reduction.  What is meant by “grounds of business efficiency”?  In Ascham Homes Ltd v Auguste [2015] EWHC 3517 (Ch) Hildyard J held that, in the absence of a settled definition, it fell to the employing authority to decide whether the grounds for the cessation of employment constituted “grounds of business efficiency”.  If the employer did not make any determination, then the true grounds of its decision to terminate the member’s employment had to be investigated.  The test whether the appellant’s decision was on grounds of business efficiency was whether it was made pursuant to some change in the way of conducting the business with a view to ensuring that its resources could be more efficiently deployed, without regard to personal or subjective characteristics or the performance of the post-holder.  Although Regulation 19 did not require the cessation of service to be exclusively on the ground of “business efficiency”, that had to be the preponderant reason.

It is to be noted that a somewhat similar concept, termination of employment “in the interests of the efficient exercise of the employing authority’s functions” appears in Regulation 4 of the Local Government (Early Termination of Employment) (Discretionary Compensation) (England and Wales) Regulations 2006, SI 2006/2914.

 

Acts and Omissions of Returning Officer

December 3rd, 2015 by James Goudie KC in Elections and Bylaws

The two issues raised by the Local Government Election Petition in Baxter v Fear [2015] EWHC 3136 (QB) were described by the Court as “important and novel”.  The Petition concerned the Kinson South Ward of Bournemouth Borough Council.  The problems arose owing to a printing error.  “Books” or batches of ballot papers were printed and assembled in advance of election day. Whilst the cover of the Kinson South ballot books showed the correct information for that Ward, the ballot papers inside were for Kinson North; and vice-versa.  This problem affected each of the nine polling stations in both Wards.  Once the problem was identified prompt steps were taken to address it.  By mid-morning all polling stations in Kinson North and Kinson South had been issued with the correct ballot papers.  By then some electors provided with the wrong ballot papers had placed them in a Kinson South ballot box.  Some, but not all, of these returned later, and completed correct ballot papers. The total number of electors affected in one way or the other by the ballot paper error to the extent that they were effectively disenfranchised was 115.

The first issue arose under Section 48(1) (b) of the Representation of the People Act 1983.  No local government election shall be declared invalid by reason of any act or omission of the Returning Officer if it appears that the act or omission did not affect the result.  In a three member ward the gap between the second and third candidates who had been elected and the petitioner was less than 115.  It was unlikely however that the 115 affected electors would have voted in such a way as to lift the petitioner to third place.

The first issue was whether a statistical or psephological approach was appropriate, whether it was permissible for the Court to undertake an inferential analysis of how disenfranchised voters would or might have voted.  There was no decided authority which directly answered the question.  The Court answered it in the negative.  Jay J, with whom Wilkie J agreed, said:-

“27. … By enacting section 48 of the 1983 Act, Parliament cannot be treated as somehow empowering the judicial arm of Government to peer into the voting booth, whether by drawing informed, probabilistic inferences or otherwise.

28. This conclusion supports the delicate constitutional balance which clearly exists in this domain, and achieves practical and legal certainty. … there would in principle be no constraint on the type of evidence the court might receive: e.g. psephological (on a micro or macro level), geographical and behavioural.  In my view, it seems obvious that Parliament could not have intended to mandate such a potentially far-reaching, penetrating and invidious level of inquiry by the judiciary.”

“31. There are many situations where courts are prepared to draw inferences from evidence of a statistical nature, … However, in those domains the policy considerations are rather different, not least because no quasi-constitutional issues arise. … Voting behaviour can be extremely unpredictable across a Ward, and may depend on factors about which it is difficult to be precise. Ultimately, the policy of section 48(1) is that an investigation of likely voting behaviour is tantamount to an exercise in pure speculation, and must be avoided.

32. This Petition must succeed on the basis that it appears to the Court that the acts and omissions for which the Fourth Respondent is responsible, effectively disenfranchising 115 electors, affected the result of the election of the Second and Third Respondents.”

The second issue was whether the ballots of the returning electors should have been included.  The legal backdrop to this issue was the relevant provisions of the Local Elections (Principal Areas) (England and Wales) Rules 2006 [2006 S.I. No. 3304] (“LEPAR”), in particular Rules 15, 16, 33 and 35 of Schedule 3. LEPAR contains a specific and detailed set of mandatory rules governing the method of poll, the form of the ballot paper, the questions to be put to voters, and the voting procedure. A number of the breaches of LEPAR were perpetrated by the Returning Officer, comprising issuing an erroneous or invalid ballot paper to 76 electors, failing to issue a ballot paper to the 160 electors who applied to vote during the interregnum, and issuing the 56 returning electors with a second ballot paper.  The first two of these were common ground.  It was the third that needed to be addressed.  The Court held that the second ballot papers should not have been issued. Jay J said:-

“44.  … LEPAR contains no mechanism for correcting errors once the ballot paper has been folded and placed into the ballot box. This is treated by the rules as a legally irrevocable act – at least until the poll closes and the ballots are scrutinised.

45. … there is no provision in LEPAR for errors of any sort to be corrected by the delivery of a second ballot paper to the voter. Indeed, the tenor of Rules 33(l)(b) and 35(l)(c) is to the contrary effect, because these provisions are predicated on there being one vote, not two. …

46. The upshot is that LEPAR, properly construed and applied, leaves no room for discretionary decision-making by returning officers, let alone for “self-help” remedies which entail ascertaining who has voted incorrectly, and then making contact with them. However well-intentioned, what happened here had the tendency to undermine rather than to safeguard the integrity and secrecy of the whole voting process: the philosophy of LEPAR is to regulate and constrain contact between presiding officers (or their agents) and voters, and to postpone dealing with errors and irregularities until after the closing of the polls.

47. … the consequence … is that voters only had one bite at the metaphorical cherry in circumstances where they could have no responsibility for the initial printing error. …”

 

Ownership Rights of a Highway Authority

December 3rd, 2015 by James Goudie KC in Environment, Highways and Leisure

What one might call the “normal” or “traditional” ownership rights of a highway authority lay at the heart of the dispute in Southwark LBC v Transport for London [2015] EWHC 3448 (Ch).  A Vesting Order, SI 2000 No 1152, provided for the vesting of certain highway property in TfL, in connection with the re-ordering of responsibilities for highways in the creation of TfL and its assumption of responsibility as a highway authority for certain roads in Greater London. The Order, by Article 2(1)(a), provided broadly that there were thereby transferred to TfL in relation to each GLA road “the highway, in so far as it is vested in the former highway authority”.

The dispute was as to the extent of the vesting by virtue of the expression “the highway”. Southwark LBC and The City of London were highway authorities for what are now GLA roads in their respective areas. The Vesting Order was obviously intended to have some vesting effect in relation to those roads.  The dispute was as to its extent. In the case of some parts of some of the highways the local authorities owned not merely the top part of the soil, but have full title to the whole of the freehold. The relevant dispute was as to whether, in those circumstances, TfL acquired any more than the relevant part of the surface that it would normally have as a highway authority.

Mann J observed (para 5) that it is well established where a highway is maintainable at public expense the highway authority which is responsible for it has not merely the obligation to maintain it, it also has a limited ownership (unless it has acquired ownership rights by conveyance).  That principle is set out in statute and in authority. He referred to the current statutory provision (which succeeds others) i.e. Section 263 of the Highways Act 1980, which provides, broadly, that every highway maintainable at the public expense, together with the materials and scrapings of it, vests in the authority who are for the time being the highway authority for the highway.

Mann J concluded (paragraph 54):-

“In all the circumstances I do not consider that the arbitrator erred in law in proceeding on the footing that Article 2(1)(a) carried with it the freehold, or other estate, vested in the local authorities as highway authorities, and, in the vertical plane, that it was not confined to what I am calling the surface. …”

 

Reasons

December 3rd, 2015 by James Goudie KC in Decision making and Contracts

The procedural question, whether the reasons given for a decision, when reasons are required, are adequate, and the substantive question, whether the reasoning in support of the decision is adequate, to make for demonstration of a reasonable decision, continue to arise with considerable frequency, including in two cases decided on 2 December 2015, one in our Court of Appeal and the other in the EU General Court.

The Court of Appeal case is Jedwell v Denbighshire County Council [2015] EWCA Civ 1232, concerned with Environmental Impact Assessments (“EIAs”) and Screening Opinions (“SOs”) The Council’s planning officer had issued a negative SO, stating that no EIA was required.  A resident argued that an EIA should have been obtained and that the SO was inadequately reasoned, making the grant of planning permission in February 2013, for wind turbines, unlawful.

In May 2013 the resident wrote to the Council asking for contemporaneous reasons for the SO.  The Council sent him the covering letter that had accompanied the SO and indicated that it had nothing further to add. 

There were three main issues: (1) whether the SO itself was adequately reasoned; (2) whether the Council’s response to the May letter discharged its duty to give reasons; and (3) if not, whether the planning officer’s witness statement saved the Council.  The Court of Appeal decided all three issues against the Council.  In order to discharge its duty, the Council had to supply reasons before the issue of proceedings against it.

The Town & Country Planning (Environmental Impact Assessment) (England and Wales) Regulations 1999, which remained in force in Wales, obliged the local authority to give reasons only where the SO concluded that an EIA was required. They did not require reasons to be given for a negative screening opinion.  However, EU law did, either in the decision itself or in a subsequent communication following a request from an interested party.  The reasons had to demonstrate that the author had understood and considered the issues, and that proper consideration had been given to the possible environmental effects of the development.  They also had to be sufficient to enable the interested party to understand why the decision had been made and to decide whether to challenge it.  The instant SO stated its conclusion but contained no reasoning at all.  It did not indicate why the planning officer thought that no EIA was needed, and it did not demonstrate that she had applied her mind to the relevant questions.  The Council had not provided any proper reasons in response to the May letter.  When the claim form was issued, it was in breach of its duty to give adequate reasons.  The planning officer’s witness statement could not cure that deficiency.  One of the purposes of requiring the local authority to give reasons for a negative SO was to enable the interested party to decide whether to challenge it in legal proceedings.  Reasons had to be given within a reasonable time of the request.  However, if a reasonable time had elapsed but proceedings had not been commenced, the local authority might still cure any deficiency by supplying further reasons before the commencement of proceedings.  However, in the instant case, the contents of the planning officer’s witness statement had not been disclosed before the resident issued his claim form and could not rescue the local authority from its breach of duty.

The General Court case is Case T-553/13, European Dynamics v European Joint Undertaking for ITER and the Development of Fusion Energy, in which the claimant’s challenge to the defendant’s tendering procedures with respect to IT services failed.  The principle of non-discrimination had not been infringed, and the obligation to give reasons had not been breached.  The reasoning of the award decision was adequate.  It allowed the claimant to understand why other tenders were selected as being superior to their tender.

The Court said that, according to well-established case-law, the obligation to state reasons in respect of public contracts is fulfilled when the contracting authority informs unsuccessful tenderers immediately of the reasons for the rejection of their respective tenders and then, subsequently, if expressly requested to do so, provides to all tenderers who have made an admissible tender the characteristics and relative advantages of the tender selected as well as the name of the successful tenderer. In addition, the requirements to be satisfied by the statement of reasons depend on the circumstances of each case, in particular the content of the measure, the nature of the reasons given and the interest which the addressees of the measure, or other parties to whom the measure is of direct and individual concern, may have in obtaining explanations  However, it is apparent from the case-law that a contracting authority cannot be required to communicate to an unsuccessful tenderer, in addition to the reasons for rejecting its tender, a detailed summary of how each detail of its tender was taken into account when the tender was evaluated and, in the context of notification of the characteristics and relative advantages of the successful tender, a detailed comparative analysis of the successful tender and of the unsuccessful tender. Furthermore, the contracting authority is not bound to supply the unsuccessful tenderer with full copies of the evaluation report and the successful tender.

 

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