Part 7 (Clauses 38-45 inclusive) of the Immigration Bill, introduced in the House of Commons on 17 September 2015, imposes fluent English language requirements for public sector workers, and makes provision for statutory guidance in Codes of Practice which are to be consulted upon and complaints procedures. The Bill will require authorities to comply with a statutory duty. Fluent English is defined as a command of spoken English that enables workers, employed when or after the duty comes into effect, to perform their role effectively. Someone working for authorities exercising functions in Wales in a customer facing role will have to speak fluent English or Welsh.
Part 6 of the Enterprise Bill, introduced in the House of Lords on 17 September 2015, relates to non-domestic rating. Clauses 22 and 23 make amendments to the Local Government Finance Act 1988.
There is no doctrine of implied or inferred appropriation. So held Dove J in R (Goodman) v SoS for DEFRA (2015) EWHC 2576 (Admin). Section 122(1) of the Local Government Act 1972 contains no prescribed formula for the procedure to be adopted when a council appropriates land from one purpose to another. It does however need the council to determine that it no longer requires the land for the purpose for which it was holding it up to the point of that appropriation. Appropriation cannot be inferred from conduct alone. As regards the suggestion to the contrary, the Judge said, at paragraph 26:-
“The difficulty with that suggestion is the need for the authority, when exercising the power under Section 122 of the 1972 Act, to be satisfied that the land “is no longer required” for the purpose for which it is held. That requires some conscious deliberative process so as to ensure that the statutory powers under which the land is held is clear and appropriation from one use to another cannot, in my view, be simply inferred from how the council manages or treats the land.”
Any hereditament whose owner is a company which is subject to a Winding Up Order under the Insolvency Act 1986 or which is being wound up voluntarily under that Act is exempt from business rates. PAG Management Services was incorporated to manage and coordinate an artificial scheme whose sole reason for existence was to exploit this exemption. The scheme was struck down by Norris J in SOS for BIS v PAG Management Services Ltd (2015) EWHC 2404 (Ch), not because it was contrary to the public interest ( ratepayers can organise their affairs so as to avoid paying rates), but because it was a misuse of the insolvency legislation and commercially improper to use a company in liquidation as an asset shelter.
In Chesterton Commercial (Oxon) Ltd v Oxfordshire County Council (2015) EWHC 2020 (Ch) the Council was found liable to the claimant developer which had relied on its local search results stating that parking spaces which formed part of the property it was buying were not maintainable at public expense. There was at the time an ongoing investigation into whether this was in fact the case and further consideration was required. There was a real risk that the records might be inaccurate and that the parking spaces might be public highway. The response to inquiries said nothing at all about the investigation. The entire title was stated to be private land.
Under the Highways Act 1980 Section 36, each County Council must make, and keep corrected up to date, a list of the streets within their area which are highways maintainable at the public expense. That list is to be kept deposited at the County Council office and is to be available for free inspection at all reasonable hours. In England the County Councils must supply to the council of each district in the county an up to date list of the streets within the area of the district that are highways maintainable at the public expense, and that list must be kept deposited at the office of the district council and kept available for inspection by the public free of charge at all reasonable hours.
The Judge found that, having regard to its statutory duty, the County Council did not make correct and updated information available to the claimant when its solicitors conducted searches. However, the County Council contended that the statutory duties imposed by Section 36 of the Highways Act 1980 gave rise to no private cause of action, and that it owed no independent duty of care to the claimant. It denied any or any actionable negligence. It argued that the only information which it was required to give by Section 36 about highways maintainable at public expense was to identify highways known to be maintainable at public expense. It was not strictly liable for the accuracy of the information and owed no duty at all to identify roads or streets under investigation on its Section 36 lists or maps.
The Judge observed that the question of whether a local authority may be liable to a member of the public in a private action for breach of statutory duty for an inaccurate search result which leads to loss is undecided. The Council argued that there is no such right. The Judge did not, however, find it necessary to decide whether there is a private right of action for breach of the Section 36 duty. This was because a local authority may be liable to a member of the public in tort. In Gooden v Northamptonshire CC [2001] EWCA Civ 1744 it was held that a local authority owed a duty of care in respect of an incorrect answer to enquiries that certain land was maintainable as a highway at public expense. Arden LJ, who gave the leading judgment, acknowledged that purchasers of property commonly relied upon searches in the form of Enquiries made of highway authorities in deciding whether or not to buy properties, and the law could be criticised if it ignored that reality. She also drew an important distinction between mere foreseeability that that information provided would be used in that way and providing information for that purpose. A highway authority cannot be taken to know for what purpose a particular enquiry is being made, but it would know that answers to enquiries are provided within a ‘well worn’ conveyancing framework. Arden LJ reserved the Court of Appeal’s position on whether a breach of the statutory duty to maintain an accurate list would be actionable by a person harmed by a failure to do so. However, she also pointed out that just because the statutory list of roads maintainable at public expense was wrong, it did not necessarily follow that the Council responsible for maintaining the list was negligent, and in that case it was no part of the pleaded case that the Council in the case had been negligent. Not so in the Oxfordshire case. The case in negligent misstatement was pleaded, and was the primary case at trial. The claimant also contended that the Council’s duty at common law was the same as its statutory duty – namely to cause a list to be made of the streets which are highways maintainable at the public expense, to keep that list corrected and up to date, and to supply each district council within its area an up to date list of the streets within that district which are highways maintainable at the public expense.
The Judge ruled that the Council owed the claimant a duty of care at common law with respect to its reply to enquiries for the purpose of the decision which the claimant made to acquire the property, and that the result of the search amounted to a statement by the Council that the car parking spaces were not part of the highway but were private space. She said:-
“34. It was the Defendant’s proper role, as required by statute, to answer the inquiries made on the search accurately. It did not do so. The Defendant argued that it was sufficient that the result of the search showed accurately what was on the Highway Map. I do not accept that submission. It overlooks the fact that the statute requires the list of streets which are highway maintainable at public expense to be kept corrected up to date. Had the list been correct and up to date it would have been marked as showing that there was an investigation going on. I entirely accept that the Claimant did not make known to the Defendant that it was buying for development and re-sale, but that matters not where the Claimant is not arguing for prospective development losses to be paid by way of damages but relies on diminution of value from pre-existing use.
35. I find, on the evidence, that if the reply had been accurate, the Claimant might not have proceeded at all, and would definitely not have proceeded at the same price.”
It was acknowledged by the Council’s witness in evidence that purchasers would rely on the results of searches in making decisions about property purchases. More specifically, in this case, it was clear that the Council knew that a purchaser of the land comprised in the title would inevitably want to know if the land comprised within the title was private land or public highway, or highway maintainable at public expense. The conditions for the creation of a duty of care in tort were therefore present, as were the conditions for liability for misstatement. Reliance has also been proven. It was entirely foreseeable by the Council that if the result of the search was wrong, a purchaser might go ahead at a price which was higher than if an accurate response had been given. This is because a purchaser would believe that the car parking spaces were private land as the title suggested and would not know that they were in fact highway. The difference between the price paid and the value without the car parking spaces was a foreseeable head of loss.
In Portsmouth City Council v Ensign Highways Ltd [2015] EWHC 1969 (TCC) interpreted a PFI Contract between a local authority and a service provider and considered whether it is to be implied that the authority as a best value authority must act in good faith when dealing with breaches by the service provider. In the action the Council sought declarations in relation to the performance of certain of its obligations under a long term PFI Contract made with Ensign. The dispute was about the manner of awarding Service Points by PCC for breaches by Ensign of its obligations under the Contract, which concerns the long term rehabilitation, maintenance and operation of the Council’s highway network.
The Contract incorporated a regime for awarding Service Points for breaches by Ensign of its obligations under the Contract. Schedule 17 to the Agreement contained a table which set out a large number of Default Events for which Service Points could be awarded and, against each Default Event, a “Maximum Event Value”. The Maximum Event Value for each Default Event originally consisted of a single figure between 1 and 10. It was common ground that, until about December 2013, the Council treated the figures for the Maximum Event Value as the upper limit of a range. Accordingly, where the Maximum Event Value was greater than 1, the number of Service Points awarded would depend on the Council’s view of the gravity of the breach.
The Council assessed and awarded Service Points on a monthly basis and, initially, the system was operated in a manner that seemed to be regarded as satisfactory by both parties. However, after a few years cuts in central government funding to local authorities began to take their toll. In 2012 The Council began to form the view that if the Contract continued to be operated in the same manner for the remainder of its term it would become unaffordable. The Council embarked on a strategy of awarding Ensign large amounts of Service Points in order to force it to accede to the Council’s commercial demands in a renegotiation of the Contract. This involved, amongst other things, awarding the maximum amount of Service Points for every default, refusing to communicate with Ensign in relation to breaches, finding breaches in areas which Ensign might find hard to remedy and storing up Service Points over several months so that Ensign could be “ambushed” with a large award of Service Points at one fell swoop.
Ensign notified the Council that it intended to refer the dispute about the award of Service Points to Expert Determination in accordance with the terms of the Contract. The Expert issued a detailed and careful Determination in which she concluded, in fairly trenchant terms, that the Council had acted in bad faith, without mutual co-operation and unfairly. However, she did not conclude that Ensign’s performance was always as it should have been: her conclusion was that in general it was delivering the required service but that the Contract did not really provide any means of achieving long-term improvements. In addition, it seems that there was a view within the Council that the performance standards required under the Contract were unnecessarily high, and that it was therefore an unnecessary luxury.
The Council of course was under the “best value” duty imposed upon it by Section 3 in Part I of the Local Government Act 1999. Clause 44 of the Contract is concerned with best value and best value reviews. The Council relied strongly on the decision of the Court of Appeal in Mid Essex Hospital Services NHS Trust v Compass Group [2013] BLR 265.
Edwards-Stuart J in the Portsmouth case observed that failure of highway maintenance can take many forms. He concluded on the Service Points issue as follows:-
“70. … It does not in my view make commercial sense to have a system which requires the authority to impose the same number of points irrespective of the gravity or duration of the breach. In the absence of any specific indications to the contrary, one would expect the parties to have agreed a system that provided or permitted some flexibility in relation to the number of points to be awarded for any particular breach. …
71. I agree that the word “maximum” is a word with a clear meaning – namely, the upper limit of a range. It is therefore an inappropriate word to include in the heading of a column containing numbers if those numbers were intended to be single values, rather than the upper limit of a range. On PCC’s approach, the word simply has to be ignored.
72. In my view, the use of the word “Maximum” in the heading to the column showing the number of points was not the result of a drafting error but was there for a purpose. That purpose was to permit the PCC Representative, within the range provided for in the schedule, to award an appropriate number of points having regard to the gravity of the breach.”
“76. I therefore conclude that the Service Point values set out in Schedule 17 are maximum values that can be awarded for a particular breach and are not fixed “tariffs” that are to be applied irrespective of the gravity of the breach in question.”
As to the extent of the duty of good faith, the Judge began by observing as follows:-
“81. … It is clear to me that, in the context of this Agreement, PCC could not discharge its Best Value Duty unless it was in a position to negotiate improvements to the Service that might operate to Ensign’s financial detriment in circumstances where Ensign was obliged to discuss such changes in good faith – in other words, by giving proper and careful consideration to PCC’s needs and statutory obligations and balancing those against its own commercial interests. That, it seems to me, is the reason why, at least for the purposes of clause 44, Ensign is required by clause 44.4.1 to deal fairly, in good faith and in mutual co-operation with PCC. Since a duty of good faith is not usually implied into commercial contracts under English law, save in certain particular types of contract, it is necessary to provide for an express duty in appropriate terms. That is what clause 44.4.1 does.”
The Judge, however, rejected Ensign’s submission that the clause 44.4.1 duty applied to the Contract as a whole. Nonetheless, he concluded, at paragraph 112, that when awarding Service Points (under clause 24) the Council was subject to an implied term, as follows:-
“When assessing the number of Service Points to be awarded under clause 24.2.1(c) of the Agreement, PCC’s Representative is to act honestly and on proper grounds and not in a manner that is arbitrary, irrational or capricious.”
In Hunt v North Somerset Council [2015] UKSC 51 the Supreme Court unanimously allowed an appeal by Mr Hunt in relation to costs from (2013) EWCA Civ 1320. Mr Hunt suffers from ADHD, learning difficulties and behavioural problems. As a result, the Council were statutorily required, so far as reasonably practicable, to secure access for him to sufficient educational and recreational-leisure time activities for the improvement of his well-being. On 21 February 2012, the Council made a decision to approve a reduction of £364,793 from its youth services budget for 2012/2013. Mr Hung brought judicial review proceedings of that decision. He argued that the decision was unlawful on two grounds: (1) the Council had failed its duty under Section 507B of the Education Act 1996 to take properly into account the views of young persons with difficulties such as his; and, (2) it failed to fulfil its public sector equality duty under Section 149 of the Equality Act 2010 to have due regard to the equality needs of disabled individuals.
Wyn Williams J rejected Mr Hunt’s challenges to the legality of the decision. The Court of Appeal allowed Mr Hunt’s appeal. It, nonetheless, refused to make a quashing order, considering that it was too late to unwind the entire revenue budget for the financial year. It also ordered him to pay half of the Council’s costs. Mr Hunt appealed to the Supreme Court on the basis that the Court of Appeal should have made an order for costs in his favour (and a declaration that the Council had failed in its statutory obligation.
In relation to costs, the Supreme Court said (paragraph 15), that although the discretion of a Court in a matter of costs is “wide” and it is “highly unusual” for the Supreme Court to entertain an appeal on the issue of costs, the Court of Appeal said that it reached its decision “as a matter of principle”, treating the Council as the “successful party”. The Supreme Court ruled that in that respect the Court of Appeal fell into error. As the Court of Appeal rejected the Council’s case on the two issues, it was only successful in the limited sense that the findings of failure came too late to do anything about what had happened in the past, although this occurred through no fault on Mr Hunt’s part. It was unsuccessful on the substantive issues regarding its statutory responsibilities
The Supreme Court went on to say (per Lord Toulson):-
“16. There are also wider public factors to consider. Public law is not about private rights but about public wrongs … A court may refuse permission to bring a judicial review claim if it considers the claimant to be a mere meddler or if it considers that the proceedings are unlikely to be of sufficient significance to merit the time and costs involved. But in this case the court considered that the issues were of sufficient significance to give permission. And the ruling of the court, particularly under Section 149, contained a lesson of general application for local authorities regarding the discharge by committee members of the council’s equality duty. If a party who has been given leave to bring a judicial review claim succeeds in establishing after fully contested proceedings that the defendant acted unlawfully, some good reason would have to be shown by he should not recover his reasonable costs.
17. I cannot see that the fact that in this case the determination of illegality came after it was too late to consider reopening the 2012/13 budget provided a principled reason for making the appellant pay any part of the respondent’s costs. On the contrary, for the reasons stated the appellant was in principle entitled to some form of cost orders in his favour. …”
The draft Byelaws (Alternative Procedure) (England) Regulations 2015, subject to affirmative Resolution by each House of Parliament, and superseding an earlier (March 2015) draft, prescribe classes of byelaws to which Section 236 of the Local Government Act 1972 (“the Act”) does not apply and make provision about the procedure (“the alternative procedure”) for the making, coming into force and revocation of such byelaws. In particular the alternative procedure removes the requirement that byelaws must be confirmed by the Secretary of State (“the SoS”).
Regulation 3 prescribes the classes of byelaws to which Section 236 of the Act does not apply. Each class of byelaws is numbered and described in an entry in column 1 of the Table in Schedule 1 to the Regulations, made under the enactment and section in the corresponding entries in columns 2 and 3 respectively and by an authority of a description specified in the corresponding entry in column 4.
Regulation 4 provides that the alternative procedure specified in Regulations 5 to 12 applies only to the classes of byelaws prescribed by Regulation 3 made on or after the date the Regulations come into force. Regulation 4 also excludes certain requirements specified in the alternative procedure where the byelaw being made has no other purpose than to revoke another byelaw.
Regulations 5 to 12 specify the alternative procedure for the making and coming into force of byelaws.
Regulations 13-17 specify the alternative procedure for the revocation of byelaws of a class prescribed by Regulation 3.
Regulation 18 makes provision for amendments to enactments consequential on the making of these Regulations. The amendments are set out in Schedule 2. Regulation 19 provides for Section 236 of the Act to continue to apply in relation to byelaws of a class prescribed by Regulation 3 made before the coming into force of these Regulations. The effect is that such byelaws do not come into force unless confirmed by the SoS.