Liability

April 17th, 2013 by James Goudie KC in Judicial Control, Liability and Litigation

Section 77 of the Building Act 1984 (“the 1984 Act”) relates to dangerous buildings.  If it appears to a local authority that a building or structure, or part of a building or structure, is in such a condition, or is used to carry such loads, as to be dangerous, the authority may apply to a magistrates’ court, and the court may, where danger arises from the condition of the building or structure, make an order requiring the owner thereof to execute such work as may be necessary to obviate the danger or, if he so elects, to demolish the building or structure, or any dangerous part of it, and remove any rubbish resulting from the demolition, or where danger arises from overloading of the building or structure, make an order restricting its use until a magistrates’ court, being satisfied that any necessary works have been executed, withdraws or modifies the restriction.

Section 78 of the 1984 Act relates to emergency measures in the case of dangerous buildings. Subsection (1) provides that, if it appears to a local authority that a building or structure, or part of a building or structure, is in such a state, or is used to carry such loads, as to be dangerous, and immediate action should be taken to remove the danger, they may take such steps as may be necessary for that purpose.

Subsection (7) of Section 78 provides that where in consequence of the exercise of the powers conferred by Section 78 the owner or occupier of any premises “sustains damage”, but Section 106(1) of the 1984 Act does not apply, because the owner or occupier “has been in default”, the owner or occupier may apply to a magistrates’ court to determine whether the local authority were justified in exercising their powers under this section so as to occasion the damage sustained, and if the court determines that the local authority were not so justified, the owner or occupier is entitled to compensation, and section 106(2) and (3) applies in relation to any dispute as regards compensation arising under the subsection.

Section 106 provides (emphasis added):-

            “(1) A local authority shall make full compensation to a person who has sustained damage by reason of the exercise by the authority, in relation to a matter as to which he has not himself been in default, of any of their powers under this Act.

(2) Subject to subsection (3) below, any dispute arising under this section as to the fact of damage, or as to the amount of compensation, shall be determined by arbitration.

(3) If the compensation claimed does not exceed £50, all questions as to the fact of damage, liability to pay compensation and the amount of compensation may on the application of either party be determined by, and any compensation awarded may be recovered before, a magistrates’ court.”

Manolete Partners PLC v Hastings Borough Council [2013] EWHC 842 (TCC), Judgment on 12 April 2013, concerned the entitlement of the Claimant to make a claim against the Council under Section 106 of the 1984 Act for compensation as a result of the Council exercising its powers to prevent access to Hastings Pier under Section 78.  The Council’s main defence was that the Claimant was “in default” and therefore Section 106 did not apply.  Ramsey J rejected this defence.  He held that “default” required breach of an obligation to do something imposed by the 1984 Act itself, and did not extend to breach of a provision of another statute. The Claimant tenant of a bingo hall and amusement arcade on the Pier was not in default of any of the provisions of the 1984 Act.  The party in default was the owner of the Pier structure, who was responsible for its dangerous condition or state.

 

 

Election “Purdah”

March 21st, 2013 by James Goudie KC in Elections and Bylaws

The period just before local authority Elections when there are restrictions on publicity is defined as beginning with the last date for publication of Notice of the Election.  In 2013 that date is Tuesday 26 March.  The restrictions apply from then.

Authorities must have regard to the “Code of Recommended Practice on Local Authority Publicity”, issued under Section 4 of the Local Government Act 1986, revised in 2011, and available on the CLG website. Paragraphs 33-35 inclusive (Care during periods of heightened sensitivity) are of particular relevance. They provide:-

“33.     Local authorities should pay particular regard to the legislation governing publicity during the period of heightened sensitivity before elections … It may be necessary to suspend the hosting of material produced by third parties, or to close public forums during this period to avoid breaching any legal restrictions.

34.       During the period between the notice of an election and the election itself, local authorities should not publish any publicity on controversial issues or report views or proposals in such a way that identifies them with any individual members or groups of members. Publicity relating to individuals involved directly in the election should not be published by local authorities during this period unless expressly authorised by or under statute. It is permissible for local authorities to publish factual information which identifies the names, wards and parties of candidates at elections.

35.       In general, local authorities should not issue any publicity which seeks to influence voters….”

 

 

Consultation

February 26th, 2013 by James Goudie KC in Council Tax and Rates

In R (Stirling) v Haringey LBC (2013) EWCA Civ 116 the Court of Appeal were concerned with a claim for Judicial Review of the Council’s Council Tax Reduction Scheme pursuant to Section 10 of the Local Government Finance Act 2012 and Regulations thereunder, replacing Council Tax Benefit.  The Council were required to, and did, publish a draft Scheme and consult upon it, against the background of a 10% reduction in the funding given by Central Government to local authorities for council tax support.  The challenge was as to the consultation process.

There were three grounds: (1) that consultees were not provided with sufficient information to enable them to appreciate that there were alternatives to the draft scheme;  (2) that the information provided in the Consultation Document, as to the shortfall that would have to be met by the Council, was not accurately and fairly presented; and (3) that the Council should have told consultees about the Transitional Grant Scheme (“TSG”), and asked them if they wished to make any, or any further, responses in the light of the availability of that Scheme.  The second ground was not pursued in the Court of Appeal.

Dismissing the first ground, Sullivan LJ said, at paragraph 15:

“It is one thing to say that when options for change are presented in a consultation paper … they must be fairly presented, it is quite another to submit … that in order to be fair a consultation paper must present information about other options that have been rejected. What fairness requires depends on the circumstances of the particular case. In some statutory contexts a decision maker may be required, or may choose to consult as to which of a number of options should be adopted.”

However, Sullivan LJ continued, in paragraph 16, alternatives to a preferred scheme do not in all cases have to be mentioned as having been rejected.  At paragraph 18, Sullivan LJ stated that, in the particular statutory context, fairness did not require the Council, in the consultation process, to mention other options which it had decided not to incorporate into its published draft Scheme.  Much less did fairness require that the Consultation Document contain an explanation as to why these options were not incorporated in the draft Scheme.  At paragraph 19, Sullivan LJ went on to say that, evenif the statutory scheme had been less prescriptive and more open-textured as to the subject matter of the consultation process, he would not have concluded that the Consultation Document’s failure to mention the other possible ways of meeting the shortfall in Central Government funding rendered the consultation process unfair. The existence of the three options relied upon by the Appellant – raising Council Tax, reducing other Council services or utilising some of the Council’s reserves – were all reasonably obvious ways of meeting a shortfall in Central Government funding, and the form of the Consultation Document did not prevent consultees from suggesting them as possibilities. This was not a case in which the failure to mention the three options in the Consultation Document might have had the consequence that the decision-maker would have failed to appreciate their existence. The full Council would have been well aware of these three ways of meeting a shortfall in Central Government funding.  

Dismissing the third ground, the Court of Appeal held that the change of circumstance constituted, in the public domain, by the TSG, though plainly relevant, was not a change of such significance that the Council was bound to draw attention to it, or to commence the consultation process afresh.

 

Land Disposal

February 25th, 2013 by James Goudie KC in Land, Goods and Services

In R (London Jewish Girls’ High Ltd) v Barnet LBC, Lawtel AC9301237, Mitting J, on 20 February 2013, dismissed the claim, which concerned the disposal of land by a local authority for “best consideration” under s.123 of the Local Government Act 1972.  The Court was entitled to have regard to the consideration offered as at the date of the hearing of the claim for judicial review, and not simply the competing offers as they stood before the decision maker.  On this basis, the proposed sale did not breach s.123 in circumstances where the developer’s proposal was clearly the better bid, having regard to the cash offered together with overage payments. Mitting J went on give guidance (obiter) as to what matters could be treated as consideration for the purposes of s.123. He held that the value of affordable housing units as part of a development scheme and contributions under a section 106 agreement could not amount to consideration within the meaning of s.123, however he held, tentatively, that nomination rights over affordable housing were capable of amounting to consideration on the basis that these were benefits accruing to the Council from the use of the land that are of commercial and monetary value to the Council.

 

Public Health

February 11th, 2013 by James Goudie KC in Local Authority Powers

The Local Authority (Public Health, Health and Wellbeing Boards and Health Scrutiny) Regulations 2013, Statutory Instrument 2013 No. 218 (“the Regulations”) make provision in relation to Health and Wellbeing Boards established under Section 194 of the Health and Social Care Act 2012 (“the 2012 Act”) (Part 2), local authority public health functions (Part 3) and review and scrutiny of the local health service by local authorities (Part 4).

Part 2 modifies provisions in primary legislation relating to a Committee appointed under Section 102 of the Local Government Act 1972 (“the 1972 Act”) in so far as those provisions relate to Health and Wellbeing Boards and provides that certain  provisions do not apply to Health and Wellbeing Boards. The modification and disapplication provisions also apply to Sub-Committees of Health and Wellbeing Boards and Joint Sub-Committees of such Boards.

Part 3 makes provision for the weighing and measuring of children in attendance at schools under arrangements provided for by local authorities.

Part 4 makes provision in relation to the health scrutiny functions of local authorities. Section 244 of the National Health Service Act 2006 confers a power to make regulations on review and scrutiny of matters relating to the Health Service (“health scrutiny”) by local authorities. The 2012 Act made various changes to the system of health scrutiny. This included provision for health scrutiny functions to be conferred on local authorities directly with powers to enable those authorities to make various arrangements for the discharge of those functions, including discharge by Overview and Scrutiny Committees. Part 4 makes provision accordingly.

The Regulations also provide for exemptions from the Community Right to Challenge under the Localism Act 2011 for certain public health services to be provided by local authorities, two of which are time-limited exemptions.

 

 

Disabled Election Candidates

February 1st, 2013 by James Goudie KC in Elections and Bylaws

Schedule 4 to the Representation of the People Act 1983, as amended, provides for the definition of the term “election expenses”.  It sets out matters that are to be considered “election expenses”.  It sets out a list of matters excluded from being “election expenses”.  The classification of an expense as an “election expense” has a number of regulatory consequences.  These include that, under Section 76 of the Act, candidates are subject to a limit on the amount that can be spent on “election expenses”.

Pursuant to a power in the Act, there is being made the Representation of the People (Election Expenses Exclusion) Order 2013.  This will amend the Act to exclude grant awards made by the Access to Elected Office Fund (“the Fund”) from the definition of “election expenses”. The Fund has been established by the Government Equalities Office to award financial support to disabled persons who will (or wish to) stand for elected office. In order to give full effect to the Fund policy, the Order amends existing provisions on “electoral expenses” which would otherwise cause difficulties for the proper operation of the Fund. This is because disabled and non-disabled candidates would otherwise not be treated equally as regards the incurring of expenses, in that disabled candidates who received monies from the Fund to remove or mitigate disability barriers would, amongst other things, have to count such expenditure against their election expenses limit. This would have the effect of reducing the amount they could spend on other electoral expenses. Whereas in contrast the non-disabled candidates would incur no such disability related expenses and so would benefit from the advantage of having the entirety of their election expenses limit to spend on other election expenses.

The Order exempts certain expenditure by or on behalf of disabled candidates from being considered “election expenses”. However in order to benefit from the exemption from being an “election expense” the expenditure must be designed to remove or reduce the barriers to seeking elected office faced by disabled candidates; an expense that arises as a consequence of the candidate’s particular disability; defrayed or reimbursed by a grant awarded from the Fund (however, if the expense is greater than amount of the grant provided by the Fund then the exemption only applies in relation to the amount of the expense that is covered by the Fund); in accordance with the terms and conditions of the grant made from the Fund.

The Order therefore provides that only matters of expenditure that a disabled candidate would face, but a non-disabled candidate would not face, are to be exempted from the definition of “election” expenses. Matters of expenditure that would be common to both disabled and non-disabled candidates, such as the normal printing of campaign leaflets for distribution to the public, would not fall within the scope of this exemption or within the scope of the Fund. However where a disabled candidate requires specially adapted transportation in order to participate in door-to-door campaigning on a level basis with a non-disabled candidate, then such an additional expense is likely to fall within the scope of the Fund and providing it satisfies the conditions set out above is likely to fall within the scope of this exemption.

The Order applies to all of the UK. However the Fund only applies to UK Parliamentary elections, local elections in England (except parish council elections), Greater London Authority elections, Mayoral elections in England and Police and Crime Commissioner elections in England and Wales.

The Fund, will distribute £2.3 million in grants from July 2012 to June 2014. The Fund is designed to meet the additional costs that a disabled person may face, such as extra transport costs or sign language interpreters, when seeking to stand for selection by a political party or election.

The Order refers to removing or mitigating “barriers” to elected office associated with a candidate’s disability.  The Electoral Commission has taken issue with this.  They believe that “barriers” is uncertain and will be difficult to interpret.  They are concerned that there is scope for the Fund administrator to make grant allocations for a far wider range of matters than was intended.  However, the Government’s view is that “barriers” means things that merely impede progress or success, as well as things that prohibit progress or success altogether. The term “barriers” is therefore the most appropriate for the Order. The fundamental difference appears to be that the  Commission would prefer the exemption to be defined by an exhaustive list for reasons of certainty. However, the Fund has been set up on the basis that it must be able to fund any potential expense that arises from the mitigation of a barrier to elected office that occurs because of the candidate’s disability. Consequently it is impossible to define the exemption in the terms of an exhaustive list. A non-exhaustive list of expenses it will pay for would equally be unsatisfactory, because it will necessarily not mention everything covered. Therefore in order to provide certainty the Government have sought to define the exemption through descriptive principles that, as required, exactly match the scope of the Fund.

Further, the Order as drafted has the effect of imposing the test that expenses are only exempted provided they are aimed at removing or reducing the impediments disabled candidates face when seeking elected office. There is a further requirement that the impediments must directly result from a candidate’s disability.

Even if the “barriers” test is met, the Order also requires that for any spending to be exempt, it must be in line with the Fund’s terms and conditions. The Commission is not convinced that the terms and conditions are fit for purpose as currently drafted, believing they cannot be relied on to accurately define what is and is not exempt from spending limits. However, the Government does not agree that it is the terms and  conditions that define the exemption, as this is done by the text of the Order. The reference to terms and conditions in the exemption is so as to ensure an individual who fraudulently obtains funding does not benefit from the exemption. In practice the terms and conditions are likely to help provide practical guidance, but it remains the case that the definition of the exemption is the wording set out in the Order.

 

Byelaws

December 14th, 2012 by James Goudie KC in Elections and Bylaws

The Local Government Byelaws (Wales) Act 2012 (anaw 2) reforms procedures for making byelaws in Wales, including removing a requirement for confirmation of byelaws by the Welsh Ministers; enables certain byelaws to be enforced by fixed penalty notices; requires authorities that make byelaws to have regard to any guidance given by the Welsh Ministers on procedure; and restates for Wales a general power to make byelaws.

 

Local Government (Deomocracy) (Wales) Bill

November 28th, 2012 by James Goudie KC in Local Authority Powers

This Bill, introduced by the Welsh Government in the Welsh Assembly on 26 November 2012, is intended to reform the organisation and functions of the Local Government Boundary Commission for Wales.  The Bill also contains provisions which would amend the Local Government (Wales) Measure 2011 in relation to the responsibilities of the Independent Remuneration Panel for Wales and the structure of local authority audit committees.  The Bill includes provisions concerning the public’s access to information concerning town and community councils.  The Bill amends Part III of the Local Government Act 2000 to facilitate the creation by local authorities of joint standards committees.  The Bill contains a provision concerning the role of the Chairman or Mayor of principal councils.

Part 2 of the Bill relates to the Local Democracy and Boundary Commission for Wales, as it will be called, implementing proposals in the Mathias Report.  Part 3 describes the types of review of local government areas and arrangements that may be conducted and details the procedure which is to be followed in conducting a review. It also deals with the manner in which any recommendations made as a result of the review are to be implemented. Part 4 relates to reviews by the Commission of qualifying public bodies.

Part 5 of the Bill makes other changes to local government.  Section 51 amends the Local Government Act 1972 so as to allow principal councils to appoint a “presiding member”. A “presiding member” would be able to carry out any of the functions of a council chairman so decided by the council. In particular this provision will enable councils who wish to separate the ceremonial and civic functions associated with the council chairman or mayor from those of presiding over meetings of the council.  No member of the council’s executive may be the presiding member. The term of appointment is a matter for the principal council subject to the limitation that it cannot extend past the next council election.  A council may also appoint a deputy presiding member who, again, must not be a member of the executive.

Section 52 prevents a local authority from promoting a local Bill which concerns a local government area or the political structure of a local authority.

Section 53 requires a community council to publish certain information electronically including details of the council’s membership and business and make provision for members of the public to contact the council or its clerk electronically. The requirement to make information available is subject to normal rules on confidentiality.  A community council must have regard to any guidance issued by the Welsh Ministers in relation to this matter.

Section 54 requires community councils to publish public notices electronically also. Section 55 requires a community council to publish agendas and public reports for forthcoming meetings electronically.

Section 56 amends the Local Government (Wales) Measure 2011 so as to broaden the scope of a democratic services committee so that, if requested by the authority, they can review anything connected with the support and advice made available to elected members and their terms and conditions.

Section 57 amends the Local Government (Wales) Measure 2011 so as to provide that an audit committee of a local authority is one to which the rules of political balance (which are set out in section 15 of the Local Government and Housing Act 1989) apply.

Section 58 enables the Independent Remuneration Panel for Wales, when considering entitlement to a particular payment, to set a limit on the number of councillors who may receive it. This enhances the Panel’s existing power to set a limit on the proportion of councillors who may receive a particular payment.

Section 59 provides that the Welsh Ministers may add to the public bodies whose remuneration should be considered by the Panel. Any such additional body must be one which Welsh Ministers have responsibility for and which includes members of local authorities in its membership. This power is to be carried out by order of Welsh Ministers.

Section 60 changes the date by which the Panel must produce their annual report from 31st December to the 28th February. This has the effect of reducing the time between publication of a report and its implementation the following April. The provisions will also enable the Panel to decide when its reports shall come into force and to backdate its decisions for up to three months.  Section 61 provides that consultation times on draft supplementary reports, currently set at 8 weeks, would be varied to between four and eight weeks.

Section 62 provides that the Panel may require local authorities to publish details of any income received by their members from specified public bodies.

Section 63 amends section 53 of the Local Government Act 2000 so that one or more relevant authorities (ie a county or county borough council, national park authority or a fire and rescue authority in Wales) may establish a joint standards committee. An authority considering establishing a joint committee must have regard to any guidance issued by the Welsh Ministers.  Section 63 also amends section 54 of the 2000 Act to provide that a standards committee must, in exercising any of its functions, have regard to any relevant guidance issued by the Welsh Ministers.

 

Judicial Review For Judicial Review For Error Of Fact

November 26th, 2012 by James Goudie KC in Judicial Control, Liability and Litigation

Richmond-upon-Thames LBC v Kubicek [2012] EWCA 3292 (QB) is not a judicial review case, but it is of significance in relation to a judicial review or similar challenge based on a material error of fact giving rise to unfairness.  The Richmond case was itself a statutory appeal.  It raised an issue as to when, if ever, it is permissible for a County Court, hearing an appeal under s204 of the Housing Act 1985, on “any point of law” arising from a review decision made by a local housing authority in a homelessness case, to receive evidence on, and decide a question of fact relevant to, the review decision.  It is well established that an appeal “on any point of law” is in substance the same as a judicial review.  One of the issues on the appeal was whether new evidence which Mrs Kubicek sought to adduce was relevant to any issue on the s204 appeal.

It was common ground that under the statutory scheme of Part VII of the 1985 Act questions of fact are generally for the local housing authority making the review decision to determine.  For that reason, the usual process on any appeal pursuant to s204 is for the matter to be determined on the basis of submissions as to the rationality and propriety of the review decision in the light of the material before the reviewing officer at the time of the decision. Evidence which was not before the reviewing officer is not usually relevant.  The authorities, however, indicate that there are two purposes for which fresh evidence may be relevant on a s204 appeal. One such purpose is to show how the review decision was reached, including what material was before the reviewing officer and what procedure was followed. These matters may be relevant where, for example, it is alleged that there has been a failure to comply with the requirements of natural justice. An allegation that the decision-making process was tainted by misconduct on the part of someone involved in it would fall into this category. Where such an allegation is made, it is for the court to find the relevant facts, and evidence will be relevant and admissible to prove the misconduct or other alleged procedural impropriety.

A second purpose for which it is now clear that evidence may be relevant is to demonstrate that the decision subject to appeal was based on a material error of fact giving rise to unfairness. In the leading case of E and R v Home Secretary [2004] QB 1044, the Court of Appeal reviewed the authorities bearing on the question of whether, and if so when, a decision reached on an incorrect basis of fact can be challenged on an appeal limited to points of law. Carnwath LJ, as he then was (who gave the judgment of the Court) concluded at [66]:

“In our view, the time has now come to accept that a mistake of fact giving rise to unfairness is a separate head of challenge in an appeal on a point of law, at least in those statutory contexts where the parties share an interest in co-operating to achieve the correct result. Asylum law is undoubtedly such an area. Without seeking to lay down a precise code, the ordinary requirements for a finding of unfairness are … First, there must have been a mistake as to an existing fact, including a mistake as to the availability of evidence on a particular matter. Secondly, the fact or evidence must have been “established”, in the sense that it was uncontentious and objectively verifiable. Thirdly, the appellant (or his advisers) must not been have been responsible for the mistake. Fourthly, the mistake must have played a material (not necessarily decisive) part in the tribunal’s reasoning.”

In the Richmond case Leggatt J made four observations about this important statement of principle. The first is that in the way that this ground of review has been analysed by the Court of Appeal the purpose for which evidence is potentially relevant can be seen as an extension of the first purpose – that is, to show how the review decision was reached. In connection with this ground, evidence may be relevant to show not only what material was before the reviewing officer but also that evidence was available which was not placed before the reviewing officer and how that came about.

Second, although the Court of Appeal explained this ground of review as based on a principle of fairness, it is clear that the question whether there has been unfairness is not to be determined independently of the four requirements identified by the Court of Appeal; rather, the unfairness arises from the combination of factors which exist when those requirements are all met: see the analysis at [63].

Third, although the Court of Appeal suggested that the principle may be limited to “those statutory contexts where the parties share an interest in co-operating to achieve the correct result”, it is difficult to think of any context in which it would not be said that a public authority exercising a statutory function has an interest in ensuring that its decision is made on an accurate factual basis. Certainly decisions about housing assistance must fall within the scope of the principle as much as the decisions about asylum and planning control to which Carnwath LJ referred at [64].

Fourth, the second of the four requirements stated by Carnwath LJ is clearly of critical importance, but may possibly need some fine tuning. If, in order to decide that there has been a material mistake of fact, the court was entitled or required to resolve a factual dispute itself, then the court would be substituting its own finding of fact for that of the public body to which Parliament has given that task. Accordingly, to require that the fact has been “established” in the sense of being not merely objectively verifiable but uncontentious seems to be essential if a workable distinction between errors of law and errors of fact is to be maintained. It is less obviously essential that, where the fact about which a mistake is said to have been made is the availability of evidence on a particular matter, the evidence and not just the fact of its availability must be uncontentious. A court would not necessarily be usurping the function of the fact-finding body if it were to require the body to reconsider a decision made without knowledge of credible, even if not uncontentious, evidence which, if the decision-maker had been aware of it, might have led to a different result. A requirement that the evidence must have been uncontentious might also be thought to defeat the point of the Court of Appeal’s indication that the availability of evidence on a particular matter may itself be a relevant fact; for if evidence of a particular fact is uncontentious then so presumably is the fact itself.

 

 

 

Council Tax

November 23rd, 2012 by James Goudie KC in Council Tax and Rates

Two new Statutory Instruments, the Council Tax Reduction Schemes (Prescribed Requirements) (England) Regulations 2012, SI 2012/2885, and the Council Tax Reduction Schemes (Default Scheme) (England) Regulations 2012, SI 2012/2886, make provision for the new, localised, council tax support schemes in England, which come into effect on 1 April 2013.  They replace council tax benefit.  All billing authorities in England are required to have their own scheme.  The Default Scheme Regulations make provision for a default scheme that will apply to those billing authorities that have not made their own scheme by 31 January 2013.  Otherwise all schemes made by authorities, approved by Full Council, must include those matters that are prescribed in the Prescribed Requirements Regulations, as well as those matters which are required to be included in local schemes by paragraph 2 of Schedule 1A to the Local Government Finance Act 1992, as inserted by the Local Government Finance Act 2012, section 10 and Schedule 4.

 

« Older Entries
Newer Entries »