The Charity Commission has updated Guidance for Council Members and Officers when their Council is Trustee of a Charity. The Commission is seeing a “ significant number ‘ of cases where local authorities have failed to comply with their legal responsibilities a charity trustees. Common problems include changing the use or status of charitable land, or disposing of it, in a way that is not compatible with its charitable purpose.

The Guidance states that (1) it is important that authorities understand which of the assets they manage or own are charitable, and (2) they should then ensure that they are familiar with the different legal requirements and legal restrictions on actions in relation to assets that are charitable rather than simply owned.

The Guidance (1) outlines what is expected in the role of trustee, (2) gives advice on how to handle issues such as managing CONFLICTS OF INTEREST, (3) explains requirements in relation to filing Accounts, and (4) sets out rules around disposing of CHARITY LAND.

The Cabinet Office has published Guidance under the Procurement Act 2023 on contract terminations; procurement oversight; contract award notices; standstills; assessment summaries; remedies; debarment; exclusions; and procurement termination notices.

WALK SAFE SECURITY SERVICES LTD v LEWISHAM LBC ( 2024) EWHC 1787 ( Admin) raises a pure question of law whether it is lawful for a licensing hearing before a local authority licensing committee to be held remotely. Chamberlain J holds that it is lawful, pursuant to the Licensing Act 2003 and the Licensing Act ( Hearings ) Regulations 2005. He observes that the point is of wide significance, because many local authorities conduct all or most licensing hearings remotely.

He said, at para 43, that there were 5 points relevant to interpretation that taken together favour a construction according to which remote hearings are permissible in principle. First, the term “ hearing” can be applied to both in person hearings and remote hearings. Second, the legislative context includes reference to the “ place “ at which the hearing takes place, and an online platform can properly be described as a “ place “. Third, there are “ important differences “between licensing hearings and local authority meetings. Fourth, the Regulations do not prohibit them and confer maximum procedural flexibility on licensing committees. Fifth, there is nothing in the Strasbourg Court jurisprudence to suggest that remote hearings “necessarily” gives rise to a violation of any ECHR procedural rights, albeit ( para 48 ) “ they may do so in particular cases, in which case a licensing authority would be obliged to consider alternative arrangements.”

In PEVENSEY COASTAL DEFENCE LTD v ENVIRONMENT AGENCY ( 2024 ) EWHC 1435 ( TCC ) it is held that, on the proper construction of a 25 year PFI agreement, for the provision of services, for the delivery of sea defences, the service provider could, retrospectively, make a claim for ADDITIONAL COST that it had incurred, as a result of a material increase in the FREQUENCY OF STORM EVENTS in the second decade of the PFI agreement, compared with its first decade. The ability to budget for a dynamic situation was a central element of the PFI agreement.

In LANCASHIRE COUNTY COUNCIL v BROOKHOUSE GROUP LTD (2024) EWCA Civ 717 the Court of Appeal holds that the 30 day time limit under Regulation 95(3) of the Public Contracts Regulations, for seeking a Declaration of Ineffectiveness under Regulation 99, arising from an interested “economic operator” being given the “relevant reasons” it had been unsuccessful, did NOT apply where the Declaration was sought on the ground that NO CONTRACT NOTICE HAD BEEN PUBLISHED, despite one having been required.  In such a case, the limitation period was SIX MONTHS from the contract being entered into, unless the “contracting authority” issued a CONTRACT AWARD NOTICE. In that case the limitation period was 30 days, from when the contract was published.

Cabinet Office Guidance relates to ( 1) contractual modifications, (2) time limits, and ( 3 ) the process for assessment of tenders, under the Procurement Act 2023.

Two decisions on legitimate expectation.  The first is R (BIRMINGHAM CITY COUNCIL) v SoS for TRANSPORT (2024) EWHC 1487 (Admin).  It concerned both substantive and procedural legitimate expectation.  The terms of a letter from the SoS to the Council confirming that Private Finance Initiative credits had been issued towards the capital costs of a highway project, and the Local Government PFI Project Support Guide (2009-10), had not created a legitimate expectation that if the PFI contract was terminated or varied the Government would withdraw credits only in exceptional circumstances.  However, the SoS had acted unfairly by withdrawing the credits without offering the Council a further opportunity to make representations.  On  substantive legitimate expectation, it was reasonably to be expected that the Council would rely on the guidance in the July 2010 letter and in Section G of the Guide on the topic of termination or variation of PFI contracts. The Government had intended that the claimant should rely on Section G of the Guide for that purpose.  However, the examples in Section G offered practical advice and guidance to local authorities on the application of the government’s policy to possible scenarios and were not intended to be read as an unqualified commitment by the Government as to how it would proceed in the circumstances of any actual case. The language was deliberately qualified in its terms.  The July 2010 letter and Section G para 2.1 of the Guide did not give rise to the substantive legitimate expectation for which the claimant contended.  However, as to procedural legitimate expectation/fairness, there had ben a clear shift in the Government’s position following the Council’s submission of its Full Business Case in August 2023, which had not been made known to the Council and upon which the Council had no opportunity to reflect or to engage, but which had very significantly affected the outcome of the process. In the light of what had gone before, fairness demanded that the Council should have been given the further opportunity to engage and respond.

The second decision is R (DONALD) v SSHD (2024) EWHC 1492 (Admin), again concerned with both substantive and procedural legitimate expectation, amongst other matters.  A decision by the SoS not to implement two of the 30 recommendations made in the “Windrush Lessons Learned Review”, an independent assessment of the events leading up to the “Windrush” scandal, was unlawful. The decision breached a legitimate expectation that the Home Office would not decline to implement any of the recommendations without first consulting relevant stakeholders; breached the public sector equality duty; and indirectly discriminated against the Windrush community.  As to substantive legitimate expectation, the Home Office had published a plan of future action in relation to a policy that was to be kept under review and would continue to develop.  It contained no explicit statement that all 30 recommendations would be implemented, and nor was that implied.  Although its focus was on how, and not whether, the recommendations would be implemented, that did not amount to a sufficiently clear, unambiguous and unqualified representation as to give rise to a substantive legal expectation that all of the representations would be implemented.  Indeed, it indicated that some of the Recommendations would be the subject of further investigation and deliberation.  Moreover, it had been published to the world at large.  While a substantive legitimate expectation could arise from a promise made to the world at large, the cases in which that happened were ones in which the main beneficiaries of the promises formed a relatively small group.  It was difficult to envisage a case in which the Government would be bound by a representation made generally or to a diverse class.  As to procedural legitimate expectation, there was a legitimate procedural expectation that the SoS would consult with relevant stakeholders, including the Windrush community.  Although there was no explicit statement to that effect, the prospect of a lack of consultation was so conspicuously unfair as to give rise to a legitimate expectation that there would be consultation.

In TAYLORS SERVICE LTD v HMRC (2024) EAT 102 the appellants are employers of workers on zero hours contracts. They provide transport by minibus for their workers from and too home. Judge Stout holds that the travel time is not “ time work “ for the purposes of the National Minimum Wage.

In CANTOR FITZGERALD v YES BANK ( 2024 ) EWCA Civ 695 the Court of Appeal, at paras 33 and 34, reaffirms the principles to apply in construing a contract, in that case an engagement letter. The Court is required to consider the ordinary meaning of the words used in the context of (1) the words used in the context of the contract as a whole and (2) the relevant (i) factual and (ii) commercial background. This excludes prior negotiations. The objective is to identify the parties, but in an objective sense, That is what (i) a reasonable person (ii) having all the background knowledge which would have been available to the parties would have understood them to be using in the contract to mean. Interpretation is an iterative process. Rival interpretations should be tested against (i) the provisions of the contract and its commercial consequences.

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In ESCOBAR v SSHD ( “)”$ ) EWHC 1097 ( Admin ) it is held that whereas an administrative decision cannot have legal effect unless and until it has been communicated to the individual in question, a decision could have effect where notification had been provided, but the individual, for whatever reason, had not read it.