INJUNCTIVE RELIEF IN A PUBLIC LAW CONTEXT

November 26th, 2021 by James Goudie KC in Judicial Control, Liability and Litigation

Whether or not to grant an injunction in a public law case involves the exercise of a discretion which takes all relevant matters into account. These include the strength of the case advanced by the party seeking relief. That however, is not the application of a rigid test. Other important factors to be taken into account are (1) the particular decision under challenge, (2) the interests of the public in general that are involved, and (3) the broader legal framework. See para 52 in R ( S & S ) v HMRC (2021) EWHC 3174 ( Admin ).

 

Use of Private Rented Sector

November 12th, 2021 by James Goudie KC in Housing

Hajjaj v Westminster and Akhter v Waltham Forest (2021) EWCA Civ 1688 address the use by local housing authorities of the private rented sector in accordance with Sections 148 and 149 of the Localism Act 2011 to bring to an end the main homelessness duty under Section 193(2) in Part 7 of the Housing Act 1996. The main question was in what circumstances accommodation should be regarded as not suitable to form the subject of a valid private rented sector offer (PRSO). This is governed by Article 3 of the Homelessness (Suitability of Accommodation) (England) Order 2012. Accommodation shall not be regarded as suitable where one or more of ten listed conditions applies.

Bean LJ says, at para 70, that suitability is a “multi-faceted concept”. It includes size, location, accessibility, if the applicant is elderly or disabled, as well as the physical condition and other matters. The authority must be satisfied that none of the ten bars to suitability established by Article 3 applies. They must be “satisfied on the basis of evidence rather than assumptions”. He adds, at para 72, that satisfactory hearsay evidence may be enough.

 

Derivative Contracts

October 28th, 2021 by James Goudie KC in Decision making and Contracts

A transaction will not be speculative, and beyond a local authority’s capacity on that account, merely because the value or final outcome is uncertain. A decision to borrow at a floating rate instead of a fixed rate, or vice versa, or to enter into a derivative contract, by way of hedging, is capable of being lawful. See Deutsche Bank v Comune di Busto Arsizio (2021)EWHC 2706 (Comm) at paras 1-3, 84-103, especially 100, 294 and 306.

 

Care Workers

October 25th, 2021 by James Goudie KC in Social Care

The Court of Appeal in SoS for Justice v A Local Authority (2021) EWCA Civ 1527 addresses the question whether care workers are in peril of committing a criminal offence under Section 39 of the Sexual Offences Act 2003 (care workers: causing or inciting sexual activity) when they make the practical arrangements for a 27 year old man to visit a sex worker in circumstances where he has capacity within the meaning of the Mental Capacity Act 2005 to consent to sexual relations and to decide to have contact with a sex worker but not make the arrangements himself. The answer given is that the care workers risk committing the offence.

The Court of Appeal also says that it’s interpretation of Section 39 does not infringe the ECHR. The Court of Protection cannot endorse an act that would be unlawful. The motive of the care workers is irrelevant.

The situation is entirely different from situations such as a care worker arranging private time for a long married couple when it is known that this will likely include sexual activity.

 

Defective Order

October 21st, 2021 by James Goudie KC in Judicial Control, Liability and Litigation

The appeal in R ( Majera) v SSHD (2021) UKSC 46 raised a question of constitutional importance: whether it is possible to act lawfully in a manner which is inconsistent with an Order of a Judge which is defective, without first applying for, and obtaining, the variation or setting aside of that Order. The answer, reversing the Court of Appeal, is: No.

 

The Test of Irrationality

October 13th, 2021 by James Goudie KC in Judicial Control, Liability and Litigation

In Pantellerisco v SoS for Work & Pensions (2021) EWCA Civ 1454 Underhill LJ for the Court of Appeal says, at para 56, that the “degree of intensity” with which the Court will review the reasonableness of a public law act or decision “ varies “according to the “nature” of the decision in question, and, at para 57, that in the context of governmental decisions in the field of “social and economic policy” the administrative law test of unreasonableness is generally applied with “considerable care and caution.” The approach of the Courts is in general to accord a “high level of respect” to the judgment of public authorities in that field. This respects the “separation of powers” between the judiciary and the elected branches of government.

 

Harassment

September 29th, 2021 by James Goudie KC in Judicial Control, Liability and Litigation

In Ashford Borough Council v Wilson (2021) EWHC 2542 (QB) the Borough Council and its Chief Executive sought on their own behalf and on behalf of the current and former officers, employees, councillors and agents of the Council, a final anti-harassment injunction against the Defendant, a large-scale landlord in Kent, pursuant to the Protection from Harassment Act 1997 [“the 1997 Act”]. The Claimants’ complaints related, principally, to letters and emails sent by the Defendant.

Read more »

 

DISCRIMINATION IN RECRUITMENT OF FOSTER CARERS

September 28th, 2021 by James Goudie KC in Human Rights and Public Sector Equality Duty

In R (Cornerstone) v OFSTED (2021) EWCA Civ 1390 the Court of Appeal held that OFSTED had power to require Cornerstone to disapply or modify its recruitment policy for foster carers, as contained in its charitable instrument, notwithstanding the views of the Charity Commission. Different regulators May each reach their own conclusion within their respective competencies. When carrying out Inspections, OFSTED is entitled to have regard to the Equality and Human Rights Acts.
Read more »

 

Compulsory Purchase

September 21st, 2021 by James Goudie KC in Land, Goods and Services

R (Gardner) v Lancaster City Council (2021) R.V.R. 177 was concerned with a claim for additional compensation under Section 23 of the Land Compensation Act 1961. There were two issues. The first was whether planning permission could be deemed to have been granted within 10 years. The Judge, Martin Rodger QC, addresses the interpretation of “ deemed”. The second was whether a planning permission was granted for the purposes of the 1961 Act when a resolution to grant was passed subject to conditions such as entry into a Section 106 agreement. No, says the Judge, at para 49.

 

Pension Scheme Governance

September 21st, 2021 by James Goudie KC in Decision making and Contracts

The Taskforce on Pension Scheme Voting Implementation has set out its Recommendations to the DWP on voting system issues and the respective roles of pension trustees and asset managers and communication between them. Currently, when pension schemes invest in pooled funds, they surrender their rights to vote at the AGMs of the companies they invest in. The asset managers in charge of these pooled funds are not always prepared to engage with their clients’ voting preferences, on issues such as climate risk management, diversity, and pay.

Read more »

 

« Older Entries
Newer Entries »