The appeals in McMahon v Watford BC and Kiefer v Hertsmere BC (2020) EWCA Civ 497 raised the question of the interaction between a determination whether an applicant for homelessness assistance is “vulnerable” and compliance with the PSED. Lewison LJ said, at paras 45/46, that although there is a substantial overlap between between a vulnerability assessment there are also differences, the most important not of which is that whether a person has a disability is to be assessed without reference to measures being taken to correct or treat that disability, whereas vulnerability is to be assessed taking into account such measures. At para 62 he concluded that it is clear that a homelessness reviewing officer need not make findings about whether a homeless applicant does or does not have a disability, or the precise effect of the PSED. At para 89 he observed that there is a real danger of the PSED being used as a peg on which to hang a highly technical argument that an otherwise unimpeachable vulnerability assessment should be quashed.
Consultation
April 8th, 2020 by James Goudie KC in Decision making and ContractsIn R (AD) v Hackney LBC (2020) EWCA 518 the Court of Appeal has dismissed an appeal from the rejection of a challenge to a 5% cut to funding for one element of an Education, Health and Care Plan. The cut was alleged to have been unlawful on account of a failure to consult under Section 27 of the Children and Families Act 2014. The Court held that there was no such failure. They overruled first instances that such a duty arises whenever a local authority makes a decision which will necessarily affect the scope of outs SEND provision. The – per Bean LJ – “modest reduction in one element of SEND funding” was not sufficient to trigger a strategic review with the consequent requirement of widespread consultation. The Court left for another day (para 48j the issue of what level of major budget cuts or transformation of a local authority’s SEND provision would trigger a duty to consult wider than the Schools Forum either under Section 27 or at common law. If a local authority rationally concludes that a particular level of saving in SEND provision can be achieved without a significant adverse impact, but that a more drastic budget reduction, which it is not proposing to implement, might well have such an impact, that is not enough to bring Section 27 into play.
Care Home Visits
April 8th, 2020 by James Goudie KC in Human Rights and Public Sector Equality DutyIn BP v Surrey County Council (2020) EWCOP 17 a care home had acted lawfully in suspending all family visits during the coronavirus pandemic. It was necessary and proportionate to derogate from ECHR Articles 5 and 8. Considering alternative means of contact and communication was imperative. An appropriate balance had been struck.
Overlapping and Alternative Powers
April 8th, 2020 by James Goudie KC in Planning and EnvironmentalIn Sawkill v HighWays England (2020) EWHC 801 (Admin) the Claimant sought judicial review of a decision by the defendant highway authority to seek to use its power under Section 172 of the Highways and Planning Act 2016to enter onto his land to carry out a survey in connection with a Development Consent Order (DCO). The claim failed. The authority could choose that general power and was not confined to the specific provisions of Section 53 of the Planning Act 2008 in connection with DCOs.
Discrimination
April 7th, 2020 by James Goudie KC in Human Rights and Public Sector Equality DutyIn R (Drexler) v Leicestershire County Council (2020) EWCA 502 the Court of Appeal has unanimously dismissed am appeal against a Judgment of Swift J dismissing an ECHR challenge to a Council Cabinet decision to amend its SEN Home to School/College Transport Policy. Swift J did not (para75) err in applying the “manifestly without reasonable foundation” test or a conventional proportionality test. The issue was as to alleged unlawful age discrimination, contrary to Article 14 of the ECHR.
Public Health Emergency
April 7th, 2020 by James Goudie KC in Elections and BylawsFollowing on the Elections scheduled for 7 May this year being postponed by 12 months until 6 May next year, the Local Government (Postponement of Elections and Referendums) ( England and Wales) Regulations 2020, S.I. 2020/395, pursuant to Sections 61 and 63 of the Coronavirus Act 2020, contain detailed provisions that specified local elections and referendums that would otherwise be required before 5 May 2021 are postponed until 6 May 2021. The specified local elections are those to fill “casual vacancies” in local authority and other bodies, including “local by-elections” under Section 89 of the Local Government Act 1972. The specified referendums include those relating to governance changes and neighbourhood planning.
Judicial Review
April 7th, 2020 by James Goudie KC in Judicial Control, Liability and LitigationIn Packham v SOS for Transport (2020) EWHC 829 (Admin) a Divisional Court said that:
(1) When dealing matters depending essentially upon political judgment, matters of national economic policy and the like, the Court will interfere on grounds only of bad faith, improper notice or manifest absurdity : para 55; and
(2) Whether there is a failure to take into account a relevant consideration that the decision maker is obliged to take into account has nothing to do with the different question of whether a decision is vitiated by error of fact : the two should not be eluded or confused : para 51.
State Aid
April 6th, 2020 by James Goudie KC in Capital Finance and CompaniesThe House of Lords EU Internal Market Sub-Committee record that the Government lacks a clear understanding of what State Aid provisions it signed up to in the Protocol on Ireland/Northern Ireland, that the details of its subsidy control regime remain unknown, and that the role of the CMA in the future subsidy control framework remains uncertain.
Disabled Facilities
April 3rd, 2020 by James Goudie KC in HousingR (McKeown) v Islington LBC (2020) EWHC 779 (Admin) quashes a refusal by the Council of Disabled Facilities Grant under the Housing Grants etc Act 1996. An application by a council tenant must be treated on the same basis as an application by an owner occupier. It is irrelevant whether the accommodation is suitable for a disabled person.