In R (Cumbria County Council) v SoS (2022) EWHC 388 (Admin) Fordham J. refused to the County Council’s renewed application on a number of grounds for permission to bring Judicial Review proceedings against a decision of the SoS, following Statutory Guidance and consultation, to split the County into 2 unitary authorities. There was no reasonable arguability with a realistic prospect of success. The Statutory Guidance was not an unlawful departure from Government policy in relation to “minimum population size”. Nor had the SoS acted unlawfully with respect to the possibility of a Mayoral Combined Authority, the strengths and weaknesses of an East/West proposal and a single unitary proposal, or consistency with his North Yorkshire decision.
Houses in Multiple Occupation: December 2021
December 9th, 2021 by James Goudie KC in General, HousingIn Palmview Estates v Thurrock Council (2021) EWCA Civ 1871 the Court of Appeal consider the “reasonable excuse” defence in Section 75 (2) of the Housing Act 2004. There is a defence if, viewed objectively, there is reasonable excuse for having control of or managing a HMO without a licence. The reasonable excuse must relate to the activity of controlling or managing the HMO without a licence.
Can remote licensing hearings continue?
April 29th, 2021 by philipkolvin in GeneralArticle written by Philip Kolvin QC for Local Government Lawyer.
Philip Kolvin QC asks whether the High Court’s decision that remote local authority meetings cannot continue without new legislation applies to licensing committee hearings.
COVID-19 – list of Govt publications by date order and useful websites
March 26th, 2020 by Peter Oldham QC in GeneralThe virus has led to the Government producing a great deal of information and guidance, of varying degrees of formality. It is not easy to keep track of it all.
The following is a list of some useful websites covering this (and related) material, and then a list of material by publication date, followed by a weblink. Please note that the list by date order will not be complete. I will try to update it regularly. Other documents of particular relevance may be included in the list (e.g. the European Commission’s Temporary State Aid Framework of 19th March). Proposals for inclusion are very welcome – please contact peter.oldham@11kbw.com. The earlier versions of documents amended after 25th March are not shown.
USEFUL WEBSITES
For guidance aimed at local government
https://www.gov.uk/guidance/coronavirus-covid-19-guidance-for-local-government
For guidance for schools and educational settings
For procurement
https://www.gov.uk/government/collections/procurement-policy-notes#2020
For Department of Health and Social Care
https://www.gov.uk/government/organisations/department-of-health-and-social-care
For Public Health England
https://www.gov.uk/government/publications/covid-19-stay-at-home-guidance and
https://www.gov.uk/government/organisations/public-health-england
For information about Universal Credit
https://www.understandinguniversalcredit.gov.uk/coronavirus/
For more general documentation from the Government about the crisis
For Parliamentary material on the Coronavirus Act 2020
https://services.parliament.uk/Bills/2019-21/coronavirus/documents.html
The Local Government Association has an extremely informative, broad and helpful collection of material at https://www.local.gov.uk/our-support/coronavirus-information-councils. This includes a section at https://www.local.gov.uk/our-support/coronavirus-information-councils/covid-19-statutory-council-duties dealing with particular functions by alphabetical order.
PUBLICATION OF MATERIAL BY DATE ORDER
9th March
News story – Taskforce to bolster local response to coronavirus
https://www.gov.uk/government/news/taskforce-to-bolster-local-response-to-coronavirus
16th March
Press release – Robert Jenrick reaffirms support for councils in their coronavirus response
17th March
Press release – £3.2 million emergency support for rough sleepers during coronavirus outbreak
Press release – Government to grant permission for pubs and restaurants to operate as takeaways as part of coronavirus response
18th March
Press release – Complete ban on evictions and additional protection for renters
https://www.gov.uk/government/news/complete-ban-on-evictions-and-additional-protection-for-renters
Procurement Policy Note 01/20: Responding to COVID-19
https://www.gov.uk/government/publications/procurement-policy-note-0120-responding-to-covid-19
19th March
EU Commission Temporary State Aid Framework
https://ec.europa.eu/commission/presscorner/detail/en/IP_20_496
Guidance – Responding to COVID-19: the ethical framework for adult social care
News story – £2.9 billion funding to strengthen care for the vulnerable
https://www.gov.uk/government/news/2-9-billion-funding-to-strengthen-care-for-the-vulnerable
Guidance – COVID-19: guidance on residential care provision
Guidance – COVID-19: guidance for supported living provision
Guidance – COVID-19: guidance on home care provision
Guidance – Coronavirus (COVID-19): maintaining educational provision
https://www.gov.uk/government/publications/coronavirus-covid-19-maintaining-educational-provision
Guidance – COVID-19: free school meals guidance
https://www.gov.uk/government/publications/covid-19-free-school-meals-guidance
20th March
Business Rates Nursery Discount 2020/21: Coronavirus Response – Local Authority Guidance
Guidance – Closure of educational settings: information for parents and carers
Guidance – Coronavirus (COVID-19): cancellation of GCSEs, AS and A levels in 2020
https://www.gov.uk/government/publications/coronavirus-covid-19-cancellation-of-gcses-as-and-a-levels-in-2020
Guidance – Procurement Policy Note 02/20: Supplier relief due to COVID-19
21st March
Press release – Major new measures to protect people at highest risk from coronavirus
Guidance – Coronavirus (COVID-19): guidance on isolation for residential educational settings
22nd March
Guidance – COVID-19: school closures
23rd March
COVID-19: guidance on isolation for domestic abuse safe-accommodation settings
Press release – Extra protection for businesses with ban on evictions for commercial tenants who miss rent payments
Guidance – Coronavirus (COVID-19): maintaining further education provision
Guidance – Coronavirus (COVID-19): apprenticeship programme response
https://www.gov.uk/government/publications/coronavirus-covid-19-apprenticeship-programme-response
Correspondence – Coronavirus (COVID-19): letter from the Minister of State for Care to recruitment agencies
https://www.gov.uk/government/publications/coronavirus-covid-19-letter-from-the-minister-of-state-for-care-to-recruitment-agencies
24th March
COVID-19 outbreak – councillor guidance
https://www.local.gov.uk/covid-19-outbreak-councillor-guidance
Council Tax COVID-19 hardship fund 2020-21 – Local Authority Guidance
COVID-19 advice for accommodation providers
https://www.gov.uk/guidance/covid-19-advice-for-accommodation-providers
Guidance – Coronavirus (COVID-19): implementing social distancing in education and childcare settings
Guidance
Guidance on shielding and protecting people defined on medical grounds as extremely vulnerable from COVID-19
Guidance – COVID-19: support for businesses
https://www.gov.uk/government/publications/guidance-to-employers-and-businesses-about-covid-19/covid-19-support-for-businesses
25th March
Grant Funding Schemes Small Business Grant Fund and Retail, Hospitality and Leisure Grant Fund Guidance Version 2 (new para 17)
Business Rates Expanded Retail Discount 2020/21: Coronavirus Response – Local Authority Guidance (updated to include formerly excluded, but forced to close)
COVID-19: guidance for hostel or day centre providers of services for people experiencing rough sleeping
Coronavirus (COVID-19) – Planning Inspectorate guidance – updated 25th March 2020 (cancellation of Planning Inspectorate’s site visits)
https://www.gov.uk/guidance/coronavirus-covid-19-planning-inspectorate-guidance
Note the helpful collection of planning material on the same page
Guidance – Further businesses and premises to close: guidance and designation letter under the Health Protection etc Regs 2020
Guidance – Coronavirus (COVID-19): early years and childcare closures
Guidance – COVID-19: guidance for educational settings
https://www.gov.uk/government/publications/guidance-to-educational-settings-about-covid-19
Guidance – Coronavirus (COVID-19): guidance on vulnerable children and young people
Guidance – Coronavirus (COVID-19): travel advice for educational settings
Peter Oldham QC
LAs as liquidity source for private enterprise – thoughts on PPN2, New Burdens &c
March 25th, 2020 by Peter Oldham QC in GeneralThe Cabinet Office today published Procurement Policy Note 2, “Supplier relief due to COVID-19 Action Note”.
It says:-
All contracting authorities should: ● Urgently review their contract portfolio and inform suppliers who they believe are at risk that they will continue to be paid as normal (even if service delivery is disrupted or temporarily suspended) until at least the end of June. ● Put in place the most appropriate payment measures to support supplier cash flow; this might include a range of approaches such as forward ordering, payment in advance/prepayment, interim payments and payment on order (not receipt). ● If the contract involves payment by results then payment should be on the basis of previous invoices, for example the average monthly payment over the previous three months. ● To qualify, suppliers should agree to act on an open book basis and make cost data available to the contracting authority during this period. They should continue to pay employees and flow down funding to their subcontractors. ● Ensure invoices submitted by suppliers are paid immediately on receipt (reconciliation can take place in slower time) in order to maintain cash flow in the supply chain and protect jobs.
The policy is that LAs should provide liquidity to private enterprise, including payments in advance of contractual obligation. This is made clearer still as the Note continues:-
“6. The current outbreak of COVID-19 is unprecedented and will have a significant impact on businesses of all sizes. Many suppliers to public bodies will struggle to meet their contractual obligations and this will put their financial viability, ability to retain staff and their supply chains at risk. Contracting authorities should act now to support suppliers at risk so they are better able to cope with the current crises and to resume normal service delivery and fulfil their contractual obligations when the outbreak is over.
7. It is vital that contracting authorities pay all suppliers as quickly as possible to maintain cash flow and protect jobs. Contracting authorities should also take action to continue to pay suppliers at risk due to COVID-19 on a continuity and retention basis. Contracting authorities can consider making advance payments to suppliers if necessary.”
Would such payments, in ordinary circumstances, be compliant with the quasi fiduciary obligation in Roberts v Hopwood? The Government is saying this is not the time to be contractually squeamish: needs must.
A similar line of thinking about LAs as providers of liquidity to business is visible in two other initiatives of the Government, the Small Business Grant Fund and the Retail, Hospitality and Leisure Grant Fund, both to be channelled through LAs. The Government has said that it will reimburse LAs for these grants, and will also reimburse LAs’ grant administration costs pursuant to the New Burdens doctrine. Meanwhile LAs will be out of pocket, as I understand it.
It will be interesting to see if further Government policies in this crisis treat LAs as a means of effecting economic stabilisation – and longer term, whether this will kick-start LAs’ role as key players in the local economy.
Peter Oldham QC
Herding cats
March 25th, 2020 by Peter Oldham QC in GeneralOne of the difficulties faced by LAs in dealing with Government Covid guidance is keeping track of it as it continues (unsurprisingly) to pour forth. The following is a good starting point: https://www.gov.uk/guidance/coronavirus-covid-19-guidance-for-local-government.
However, it’s not intended to be a comprehensive set of guidance: for instance it does not deal with education. There is a collection of education guidance here:- https://www.gov.uk/government/collections/coronavirus-covid-19-guidance-for-schools-and-other-educational-settings.
A more general Covid collection of Government guidance is at https://www.gov.uk/government/latest?topical_events%5B%5D=coronavirus-covid-19-uk-government-response.
And of course sometimes Government guidance does not capture relevant material from other sources, for instance the European Commission’s Temporary Framework on State Aid, which you can find at https://eur-lex.europa.eu/legal-content/EN/TXT/uri=OJ%3AJOC_2020_091_I_0001.
The LGA has an extremely helpful collection of material at https://www.local.gov.uk/our-support/coronavirus-information-councils.
Parliamentary material on the Bill – and there is a great deal of it – is at https://services.parliament.uk/Bills/2019-21/coronavirus/documents.html.
While that includes some impact material, the Government’s overall Summary of Impacts document on the Bill is not on there, and that can be found at https://www.gov.uk/government/publications/coronavirus-bill-summary-of-impacts/coronavirus-bill-summary-of-impacts. It is on a page headed Department of Health and Social Care, though it deals with provisions of the Bill generally and not just in relation to health and social care. It includes some important material.
Peter Oldham QC
Virtual LA meetings
March 24th, 2020 by Peter Oldham QC in GeneralThe Coronavirus Bill, introduced into the House of Lords today, now has a cl 78 allowing the Secretary of State in England and Ministers in Wales to make regulations for LA meetings prior to 7th May 2021, including regulations for virtual attendance.
Cl 78 provides as follows – see cl 78(2) for regulations about virtual attendance:-
78 Local authority meetings
(1) The relevant national authority may by regulations make provision relating to—
(a) requirements to hold local authority meetings;
(b) the times at or by which, periods within which, or frequency with which, local authority meetings are to be held;
(c) the places at which local authority meetings are to be held;
(d) the manner in which persons may attend, speak at, vote in, or otherwise participate in, local authority meetings;
(e) public admission and access to local authority meetings;
(f) the places at which, and manner in which, documents relating to local authority meetings are to be open to inspection by, or otherwise available to, members of the public.
(2) The provision which may be made by virtue of subsection (1)(d) includes in particular provision for persons to attend, speak at, vote in, or otherwise participate in, local authority meetings without all of the persons, or without any of the persons, being together in the same place.
(3) The regulations may make provision only in relation to local authority meetings required to be held, or held, before 7 May 2021.
Peter Oldham QC