Disclosure by an authority of information that is requested under FoIA does not apply if the information is “exempt information” under Part 2 of FoIA if or to the extent that it is an absolute exemption or “in all the circumstances of the case, the public interest in maintaining the exemption outweighs the public interest in disclosing the information.” A number of exemptions involve assessing prejudice. The approach to assessing prejudice is revisited in FANTA v INFORMATION COMMISSIONER (2023) UK FTT 00908 (GRC). First, the applicable interests within the relevant exemption must be identified. Second, the nature of the prejudice being claimed must be considered. It is for the decision maker to show that there is some causal relationship between the potential disclosure and the prejudice, and that the prejudice is “real, actual or of substance”. Third, the likelihood of occurrence of prejudice must be considered. The degree of risk must be such that there is a “real and significant risk” of prejudice, or there “may very well” be prejudice, even if this falls short of being more probable than not.
Rates
November 2nd, 2023 by James Goudie KC in Council Tax and RatesThe Non-Domestic Rates Act 2023 contains provisions on liability and mandatory relief ( Sections 1-3 ). Discretionary relief ( Section 4 ), administration, including frequency with which lists are compiled ( Sections 5-9 0, disclosure of valuation information ( Sections 10-13 ) and valuation and multipliers ( Sections 14/15 ). Schedule 1 ( 69 paras 0mcontains consequential provisions ).
Exempt Information
October 31st, 2023 by James Goudie KC in Council Tax and RatesSection 44 of the Freedom of Information Act 2000 (FoIA) contains an absolute exemption from disclosure. Indeed it prohibits disclosure. The circumstances include when disclosure is “prohibited by or under any enactment”. Sections 17-23 inclusive of the Commissioners for Revenue and Customs Act 2003 (the 2003 Act) relate to Information. Section 17 is concerned with use of information, Section 18 with confidentiality, Section 19 with wrongful disclosure, Section 20 with public interest disclosure, Section 21 with disclosure to prosecuting authority, Section 22 with data protection, and Section 23 with freedom of information. Disclosure is prohibited of revenue and customs information if the disclosure would specify the identity of the person to whom the information relates, or would enable the identity of such a person to be deduced. In STITT v INFORMATION COMMISSIONER (2023) UK FTT 887 (GRC) the FTT held that the Valuation Office Agency was right to have withheld information it held that related to council tax valuation bands. This includes the address, relevant local authority and bands for each property in England and Wales. Disclosure would enable identification of the person to whom the information related.
Sexual Harassment
October 30th, 2023 by James Goudie KC in Judicial Control, Liability and LitigationWith effect from 26 October 2024, the Worker Protection ( Amendment of Equality Act 2010 ) Act 2023 will introduce a duty on employers to take “ reasonable steps “ to prevent sexual harassment of their employees in the workplace.
Property Guardians
October 30th, 2023 by James Goudie KC in HousingThe Court of Appeal in GLOBAL 100 LTD v JIMENEZ ( 2023 ) EWCA Civ 1243 holds that parts of former office buildings included HOUSES IN MULTIPLE OCCUPATION under Section 254 of the Housing Act 2004. The buildings were occupied by “ property guardians “. Their “ only use “ of living accommodation was as their main residence.
New Acts
October 27th, 2023 by James Goudie KC in GeneralThe following Bills received Royal Assent and were enacted on 26 October 2023
- Online Safety Act, on which see the 11 KBW Panopticon Blog
- Worker Protection ( Amendment of Equality Act 2010 ) Act
- Energy Act
- Non-Domestic Rating Act, which makes a number of technical alterations
- Procurement Act, which will replace existing Regulations
- Levelling-up and Regeneration Act , including provisions in relation to devolution and planning environmental and housing related reforms
- Economic Crime and Corporate Transparency Act
Agent of change principle
October 25th, 2023 by James Goudie KC in Planning and EnvironmentalThe Agent of Change Principle is expressed at paragraph 187 of the NPPF: planning policies and decisions should ensure that new development can be integrated effectively with existing businesses and community facilities. This is because existing businesses and facilities should not have unreasonable restrictions placed on them as a result of development permitted after they were established. In R (TOTTENHAM HOTSPUR LTD) v HARINGEY LBC (2023) EWHC 2569 (Admin) Saini J at paragraphs 48-50 inclusive rejected a challenge that the LPA had failed lawfully to apply the principle, in relation to a major primarily residential redevelopment adjacent to the Tottenham Hotspur Stadium, The planning framework created a framework which would ensure that access to the Stadium, a key planning consideration, would be satisfactorily achieved without unreasonable impact on the Club. The Principle does not demand no impact. A judgment by the LPA is required.
IMPROVEMENT NOTICES
October 4th, 2023 by James Goudie KC in HousingIn BARKING & DAGENHAM LBC v GBADEGESIN (2023) EWHC 2571 ( KB ) the Council was granted a final injunction to secure compliance with Improvement Notices under Sections 11 & 12 of the Housing Act 2004. The remedial works required by the Notices remained outstanding. That was despite the landlord having been convicted pursuant to Section 30 of the Act of failure to comply with the Notices.
SUBSIDY CONTROL/STATE AID
September 21st, 2023 by James Goudie KC in Capital Finance and CompaniesSection 2 of the Subsidy Control Act 2022 defines “subsidy”. It includes conferring an “economic advantage” on one or more “enterprises”, elaborated upon in Section 3, and financial assistance which is “specific”, elaborated upon in Section 4. These concepts derive from EU State Aid Law, and have been considered by the General Court in its Judgment on 20 September 2023 in MAGNETROL INTERNATIONAL v EUROPEAN COMMISSION. The Court says at paragraph 45-47 inclusive that the concepts of “advantage” and “selectivity” are 2 separate criteria, but may be examined together.
So far as “advantage” is concerned, in order for there to be State Aid the measure must “improve the financial situation of the recipient”. So far as “selectivity” is concerned, in order for them to be State Aid the measure must not benefit other undertakings that are in a factual and legal situation “comparable” to that of the recipient.