In a claim for damages for breach of contract by way of wrongful dismissal of an employee, as in Mackenzie v AA Ltd (2022) EWCA Civ 901, the least burdensome mode of performance, and the least costly method of lawfully terminating the contract, should be adopted. The Court of Appeal holds that it should, for the purpose of determining the employee claimant’s loss, be assumed that the employer would have performed its contractual obligations in the least burdensome way possible. Damages could not confer benefits which the contract did not oblige the employer to confer.
Intentional homelessness
July 1st, 2022 by James Goudie KC in HousingWhen a homeless person applies to a local housing authority (LHA) for accommodation, the LHA needs to decide whether the applicant has become homeless intentionally. That may be the case if the applicant was evicted from their “last settled accommodation” for non-payment of rent which was affordable for them. Affordability depends on whether the applicant could have been able both to pay the rent and meet their “reasonable living expenses”. In BAPTIE v KINGSTON UPON THAMES RLBC (2022) EWCA Civ 888 the LHA decided that both could have been done. The question raised by the appeal was whether that affordability decision was unlawful, because it was based on an irrational approach to the assessment of the applicant’s reasonable living expenses. The decision was ruled to have been lawful.
The Association of Housing Advice Services (AHAS) has produced Guidance, “Evidence base for cost of living and guidance for caseworkers”. The LHA’s Review Officer had not erred in relying on it. It was reliable objective evidence to which a Review Officer could have regard. SAMUELS v BIRMINGHAM CITY COUNCIL (2019) UKSC 28 is not authority to the contrary. See paragraphs 50-54 and 60-63 of the Judgment of Warby LJ, which with Asplin and Peter Jackson LLH agreed.
Local Government Ombudsman
July 1st, 2022 by James Goudie KC in Non Judicial ControlIn PIFFS ELM LTD v COMMISSION FOR LOCAL ADMINISTRATION IN ENGLAND (2022) EWHC 1547 (Admin) the Court holds that the Local Government and Social Care Ombudsman (the LGO) has an implied power, under Section 30 in Part 3 of the Local Government Act 1974 (LGA 1974) to withdraw a Final Report, in order to conduct further investigation, under Sections 24A, 26 and 28, and potentially to issue a further Report, with a different outcome.
The statutory provisions confer a very wide discretion on the LGO to decide what complaints he/she should or should not investigate and whether or not to continue or discontinue any such investigation, subject to review by the Court on the usual public law grounds. Authorities have emphasised the informal nature of the process.
The Courts have noted the utility of the practice of the LGO of inviting comments on their draft Report from the authority and the aggrieved person before the decision is issued. Read more »
Charging for Leisure Facilities
June 24th, 2022 by James Goudie KC in Environment, Highways and LeisureIn R (Efthimiou) v City of London (2022) EWHC 1588 (Admin) the lawfulness of an updated charging and fee collection policy for the Hampstead Ladies@ Pond was upheld. The challenge by a disabled swimmer failed. At para 119 and following the Judge said that, as a general principle, charging for leisure facilities is fundamentally fair and reasonable. The revised charges, albeit significant, are heavily subsidised and relatively modest.
Planning and Environmental Exempt Information
June 17th, 2022 by James Goudie KC in Planning and EnvironmentalThe statutory framework for access to information at principal local authority meetings, including when the public may be excluded, as in Stride v Wiltshire Council (2022) EWHC 1476 (Admin), is set out in the Local Government Act 1972. Section 101A provides for such a meeting to be open to the public unless excluded by Resolution.
Human Rights – R (Z) v Hackney LBC
June 17th, 2022 by James Goudie KC in HousingIn R (Z) v Hackney LBC (2020) UKSC 40, (2020) P.T.S.R. 1830, the Supreme Court held that a charitable housing association’s allocation policy, which effectively means that it allocated housing only to applicants from the Orthodox Jewish community, including some nominated by the local authority, was a legitimate and proportionate means of meeting the housing needs of members of that community authority’s area, and was therefore not unlawfully discriminatory.
Civil Procedure Rules
May 30th, 2022 by James Goudie KC in Judicial Control, Liability and LitigationIn PRIMAVERA ASSOCIATES LTD V HERTSMERE BOROUGH COUNCIL (2022) EWHC 1240 (Ch) the defendant local planning authority applied, with partial success, to strike out a witness statement made on behalf of the claimant property development company. The claimant alleged that the Council had been negligent in its planning process. Written statements are to contain evidence that the maker would be allowed to give orally. They are not to provide commentary on documents or engage in argument or include opinion. They must state how well the witness personally recalls the matter addressed and provide details of documents used to refresh memory in respect of matters of fact. They can provide relevant background information known to the witness.
Public Benefit Requirement
May 30th, 2022 by James Goudie KC in Council Tax and RatesThe Supreme Court has, on 27 May 2022, given the Council permission to appeal in the important case of Merton LBC v Nuffield Health. The case is on qualifying for mandatory charitable relief from non-domestic rates. The majority of the Court of Appeal, (2021) EWCA Civv826, held that the question of public benefit does not need to be assessed separately for each site on which a charity carries out its charitable activity.
The Procurement Bill
May 25th, 2022 by James Goudie KC in Decision making and ContractsThe Procurement Bill has 13 Parts and 11 Schedules, and runs to 122 pages. Part 1 contains key definitions. Part 2 sets out principles and objectives.