Consultation

December 11th, 2018 by James Goudie KC in Decision making and Contracts

In R (MP) v SoS for Health and Social Care (2018) EWHC 3392 (Admin) Lewis J said:-

64. … If a public body chooses to consult upon a particular proposal, then it must do fairly and in accordance with well-established principles. If a public body chooses to consult on one set of proposals, but not to consult on another, different set of proposals, then, unless it can be shown that there is a legal obligation to consult upon the second set of proposals, it is not obliged to do so because it is consulting on the first set of proposals. …

65. The fact that the defendant chose to consult upon a very large number of proposals … does not alter the position. The two issues upon which he chose not to consult … were discrete, self-contained issues. The fact that notice of the decision to make those two changes was contained in the document setting out the response to the consultation exercise does not mean that the proposals were part of, or were linked in some way to the proposals that were consulted upon. The defendant did not fail to carry out the consultation exercise properly. The key question, therefore, is whether there was an obligation to consult upon these two changes. Read more »

 

Homelessness

December 11th, 2018 by James Goudie KC in Housing

In Alibkhiet v Brent LBC and Adam v City of Westminster (2018) EWCA Civ 2742 Lewison LJ began his Judgment (with which Henderson and Asplin LJJ agreed) as follows:-

“You would need to be a hermit not to know that there is an acute shortage of housing, especially affordable housing, in London; and that local government finance is severely stretched. Under the homelessness legislation housing authorities in London have duties to procure housing for the homeless; and must, so far as it is reasonably practicable to do so, accommodate such persons within their own district. These joined appeals concern the lawfulness of the decisions and process by which two London boroughs, in purported exercise of their statutory duty, made offers to accommodate homeless persons outside their respective districts. …” Read more »

 

Meaning of “Highway”

December 7th, 2018 by James Goudie KC in Environment, Highways and Leisure

The successful appeal to the Supreme Court in Southwark LBC v Transport for London, in which Judgment was given on 5 December 2018, concerned the effect of the GLA Roads and Side Roads (Transfer of Property etc) Order 2000 (SI 2000/1552) (“the Transfer Order”) and the GLA Roads Designation Order 2000 (SI 2000/1117) (“the Designation Order”). By combined operation of those Orders, responsibility for Greater London Authority (“GLA”) roads was transferred from individual London borough councils, including the Respondents (“the Councils”) as local highway authorities, to the Appellant (“TfL”). The provision at the heart of the appeal was Article 2(1)(a) of the Transfer Order, which provides for the transfer of “the highway, in so far as it is vested in the former highway authority”. Read more »

 

Structural and Boundary Changes

December 7th, 2018 by James Goudie KC in Local Authority Powers

The Local Government (Structural and Boundary Changes) (Amendment) Regulations 2018, S.I. 2018/1296, will come into force on 2 January 2019. The Local Government and Public Involvement in Health Act 2007 Part 1 provides for structural and boundary changes in relation to local government areas in England.  These Regulations, made under Section 14 of the 2007 Act, make incidental, consequential, transitional and supplementary provision of general application in relation to the exercise of certain functions for the purposes of, and in consequence of, Orders made by the Secretary of State under Sections 7 and 10 of the 2007 Act.  Part 1 of these Regulations amends Regulations previously made under Section 14 of the 2007 Act.  Part 2 of the Regulations makes provision to specify the dates on which the collection funds and general funds of councils established under a Section 10 Order must be established in accordance with the provisions of the Local Government Finance Act 1988, and modifies relevant provisions of the Local Government Finance Act 1992 to allow those councils, in setting their council tax, to take account of precepts which may be issued by charter trustees which may be established under a Section 10 Order.

 

Legitimate Expectation

December 7th, 2018 by James Goudie KC in Decision making and Contracts

In R (Jeffries) v SSHD, (2018) EWHC 3239 (Admin) a Divisional Court held that views given by the then Prime Minister in a private meeting with press misconduct victims, about the desirability of completing the anticipated second part of a Public Inquiry into press misconduct, could not give rise to a legitimate expectation that the second part would go ahead.  The meeting had been off the record by agreement, and the Prime Minister could not have thought, or objectively be expected to have thought, that his words could be relied on as creating a legitimate expectation. Read more »

 

Pension Increases

November 30th, 2018 by James Goudie KC in Local Authority Powers

The Superannuation Act 1972 confers a general power to establish public sector pension schemes, and make their rules.  However, indexation increases are governed by the Social Security Pensions Act 1975: so held by a Divisional Court in R (BT) v HMT (2018) EWHC 3251 (Admin) at paragraph 156.

 

Suspension of Employee

November 30th, 2018 by James Goudie KC in Local Authority Powers

In Ardron v Sussex Partnership NHS Foundation Trust (2018) EWHC 3157 (QB) the NHS Trust was proceeding with a disciplinary hearing, alleging gross misconduct, by way of gross negligence.  The Claimant sought an injunction to prevent the hearing.  Jacobs J dismissed the claim.  His holdings included (paragraphs 116-118) that the Trust had a prima facie case that the Claimant’s conduct amounted to a breach of its relationship of trust and confidence with her.  He held that the absence of a sustainable case on breach of trust and confidence was not demonstrated by the fact that the employee was not suspended and continued to work, when specific monitoring measures had been put in place, the allegations against her had not yet been proved, and the outcome of the disciplinary process was not being prejudged.

 

Local Government Reorganisation

November 30th, 2018 by James Goudie KC in Best Value

MHCLG has on 29 November 2018, pursuant to the Local Government and Public Involvement in Health Act 2007, launched an eight week Consultation, for response by 25 January 2019, on a proposal from seven of the eight Northamptonshire councils (the exception being Corby Borough Council) for local government reorganisation in Northamptonshire. An independent inspection report, by Max Caller CBE, had found that the County Council, in this currently two-tier local government area, has failed to meet its “Best Value” duty under the Local Government Act 1999. MrCaller recommended that new single tier, i.e. unitary, authorities should be created. The Government accepted the unitary recommendation, and rejected the option of a single unitary covering the whole of Northamptonshire. Read more »

 

Unlawful Discrimination

November 29th, 2018 by James Goudie KC in Human Rights and Public Sector Equality Duty

In R (Stott) v SoS for Justice (2018) UKSC 59 the Supreme Court considered the scope of “other status” within the Article 14 prohibition of the ECHR.  Lady Black, delivering the principal Judgment, said, at paragraph 80, that when considering an as yet unconsidered characteristic, a Court will have in mind the nature of the grounds it was thought right to list specifically.  However, a strict ejusdem generis interpretation would be unduly restrictive. At paragraph 81, Lady Black said that, although “not open-ended”, the grounds within Article 14 are to be given “a generous meaning”.

 

Waste Sites

November 29th, 2018 by James Goudie KC in Environment, Highways and Leisure

The Environmental Protection (Miscellaneous Amendments) (England and Wales) Regulations 2018, S.I. 2018/1227 (“the 2018 Regulations”), make amendments to the Environmental Protection Act 1990 (“the EPA”) and the Environmental Permitting (England and Wales) Regulations 2016, S.I. 2016/1154 (“the EP Regulations”).

The 2018 Regulations amendments relate to matters including new conditions for environmental permits authorising certain waste operations, and provisions relating to flood risk activities and radioactive substance activities. Read more »

 

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