Bulletin No. 45

LOCAL GOVERNMENT LAW 

Bulletin Editor

James Goudie QC

(Chapter 23, Housing,

Christopher Knight)

11 KBW

Temple

London 

This Bulletin covers material available 29 February 2012.

Chapters updated in this Bulletin

Chapter 1: Local Authorities – Relationships and Responsibilities

Chapter 4: Non-Judicial Control of Local Government

Chapter 5: Judicial Control of Local Authorities

Chapter 5A: Local Authorities and the Human Rights Act 1998

Chapter 7: Local Elections

Chapter 8: Local Authority Employment Law

Chapter 10A: The New Ethical Framework

Chapter 11: EC Public Procurement Rules

Chapter 13: Acquisition, Appropriation and Disposal of Land

Chapter 14A: Local Government and Information

Chapter 18: Sources of Funds – Council Tax

Chapter 19: Sources of Funds – Non-Domestic Rating

Chapter 20: Capital Finance

Chapter 23: Housing

Chapter 24: Local Authority Education Law

Chapter 25: Social Services

Chapter 26: Environmental Law

Chapter 27: Highways

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Chapter 1: Local Authorities – Relationships and Responsibilities

Note the Local Authorities (Referendums) (Petitions) (England) Regulations 2011, SI 2011/2914, on changing to a different form of governance; and the Local Authorities (Conduct of Referendums) (England) Regulations 2012, SI 2012/323.

Chapter 4: Non-Judicial Control of Local Government

On the Local Government Ombudsman, see Dalley v Information Commissioner, EA/2011/0180, FTT Decision on 15 February 2012, which concerned EIR Regulation 12(5)(d), on breach of confidence, and a refusal by the Ombudsman of an information request. The confidentiality was provided by S32(2) of the Local Government Act 1974 in relation to Ombudsman investigations and conducting them efficiently. The question was whether the public interest in maintaining that confidentiality outweighed the public interest in awareness of investigations on environmental issues conducted by the Ombudsman. The subject matter was drainage issues and the alleged failure of the Local Planning Authority to address them in a satisfactory manner. The FTT concluded that the balance of public interests was against disclosure. The FTT emphasized (para 11) that there is a public interest in enabling the Ombudsman to receive information in confidence, so as not to affect adversely his ability to investigate complaints and thus to maintain the accountability and transparency of local government.

Chapter 5: Judicial Control of Local Authorities

Charles Terence Estates Ltd v Cornwall Council on fiduciary duty is reported at [2011] LGR 813.

On when consultation is necessary, and whom to consult, see R (Milton Keynes Council) v SoS CLG [2011] EWCA Civ 1575. On legitimate expectation of consultation, see R (Vieira) v Camden LBC [2012] EWHC 287 (Admin), at paras 58-68 inclusive and 115.

On the Public Sector Equality Duty, see R (Tiller) v East Sussex County Council [2011] EWCA Civ 1577, distinguishing (paras 36-39), R (Harris) v Haringey LBC [2011] PTSR 931 (CA), stating (paras 39-40) that a “relevant light” on the approach the Court should adopt was shed by the decision of the SC in R (McDonald) v Kensington & Chelsea RLBC [2011] PTSR 1266, at paras 23 and 24, and applying the Brown principles; and R (“D” and “S”) v Manchester City Council [2012] EWHC 17 (Admin), stating, at para 61, that it is lawful first to formulate budget proposals and then, at the time of developing policies, to consider the specific impact of proposed policies that might be implemented within the budgetary framework.

Further on the Public Sector Equality Duty, see R (Hurley) v SoS for BIS [2012] EWHC 201 (Admin), in which Elias J said:

“77. … I do not accept … that it is for the court to determine whether appropriate weight has been given to the duty. Provided the court is satisfied that there has been a rigorous consideration of the duty, so that there is a proper appreciation of the potential impact of the decision on equality objectives and the desirability of promoting them, then … it is for the decision maker to decide how much weight should be given to the various factors informing the decision.

78. The concept of “due regard” requires the court to ensure that there has been a proper and conscientious focus on the statutory criteria, but if that is done, the court cannot interfere with the decision simply because it would have given greater weight to the equality implications of the decision than did the decision maker. In short, the decision maker must be clear precisely what the equality implications are when he puts them in the balance, and he must recognise the desirability of achieving them, but ultimately it is for him to decide what weight they should be given in the light of all relevant factors.”

R (W) v Birmingham City Council on the PSED has been reported at [2012] LGR 1.

On s111(1) of LGA 1972, see R (National Secular Society and Bone) v Bideford Town Council, concerned with public prayers at the start of full meetings of a Parish Council. Ouseley J (para 13) identified what he regarded as the “narrow scope” of the issue before him: solely about whether prayers can be said as part of the formal business transacted by the Council at a meeting to which all Councillors are summonsed. Ouseley J (para 19) observed that Sch12 to LGA 1972, which governs Parish Council meetings, is “silent about prayers”, and (para 22) that there is “no specific statutory power to say prayers”. Ouseley J rejected the submission that no statutory authority was required.

Ouseley J went on to reject the submission that such authority was provided by s111(1) of LGA 1972. He said:-

“23. S111 requires the prior identification of the function to which the acts in issue are incidental. The purpose of the meetings is to transact the business of the Council, which business is made up of the various express and implied functions, duties and powers, which it possesses. The question therefore is whether saying prayers “is calculated to facilitate, or is conducive or incidental to the discharge of any of their functions.” Although there is scope for a wide interpretation to be given to those words, the courts have set their face against an interpretation which would cover the incidental to the incidental, see for example R v Richmond LBC ex p McCarthy & Stone (Developments) Ltd [1992] 2 AC 48. The language also requires an objective standard or test: it is not a question of whether the Council reasonably considers that a particular act would facilitate or be conducive to or incidental to the discharge of its functions. “Calculated” does not mean “thought likely by the Councillors”, but requires an objective judgment of what is likely to facilitate the discharge of functions.

24. That said, I would accept that the reasoned view of elected Councillors in that respect would often be very persuasive. I do not doubt that the Councillors who voted for the continued saying of public prayers believe, or are prepared to accept, that the practice facilitates or is conducive or incidental to the transaction of business, and do so for reasons of belief and support for tradition … I have, however, come to the conclusion that s111 does not permit the public saying of prayers as part of he formal meeting of the Council, as an incident of the transaction of its business.”

“27. I do not see that it can be calculated to facilitate, or be conducive to or incidental to formal public Council deliberations as a whole, for the majority to include as part of their formal deliberations a ceremony from which some absent themselves or feel themselves to be excluded, perhaps under protest or in resentment. …”

Ouseley J also (para 76) went on to reject the Council’s submission that the requirements of a pluralist state meant that preventing prayers in a Council meeting breached ECHR Art 9, distinguishing Lautsi v Italy [2011] ECHR 2412.

Ouseley J’s conclusion (para 80) was as follows:-

“The saying of prayers as part of the formal meeting of a Council is not lawful under s111 of the Local Government Act 1972, and there is no statutory power permitting the practice to continue. If it were lawful, the manner in which the practice is carried out in the circumstances of Bideford does not infringe either Mr Bone’s human rights nor does it unlawfully discriminate indirectly against him on the grounds of his lack of religious belief.”

This decision was before Part 1 of the Localism Act 2011 was brought into force (the general power of competence).

Chapter 5A: Local Authorities and the Human Rights Act 1998

In City of London v Samede [2012] EWCA Civ 160 CA held that the occupiers of a camp next to St Paul’s Cathedral had ECHR Arts 10 & 11 rights in relation to the maintenance of the camp, but that did not mean that the camp should be allowed to continue. Determining the limits to the right of lawful assembly and protest on the highway is fact-sensitive. Relevant factors include the extent to which the continuation of the protest would breach domestic law, the importance of the precise location to the protesters, the duration of the protest, the degree to which the protesters occupied the land, and the extent of the actual interference the protest caused to the rights of others, including the property rights of the owners of the land, and the rights of any members of the public. It was appropriate to take into account the fact that protesters were expressing views on important issues and strongly believed in the views they were expressing. However, the level of public disruption caused by the protest justified removal of the camp, which was, and had been for three months, trespassing in St Paul’s Churchyard, substantially interfering with the public right of way and the rights of those who wished to worship in the Cathedral, in breach of planning control, and causing strain on public health facilities, and some damage to local businesses.

Chapter 7: Local Elections

On 24 February 2012 the Electoral Commission published Guidance on preventing and detecting electoral malpractice.

Chapter 8: Local Authority Employment Law

The Supreme Court decision in R (G) v Governors of X School on legal representation at disciplinary hearings is reported at [2011] LGR 849. Note the CLG February 2012 Guidance under Section 40 of the Localism Act 2011 on “Openness and Accountability in Local Pay”.

Chapter 10A: The New Ethical Framework

In Councillor Carole Gerada v Standards Committee of Scarborough Borough Council, Case No LGS/2011/0567, Decision on 3 February 2012, the FTT stated (para 7) “…absent from the papers submitted to the Tribunal is any copyof the Appellant’s Declaration of Office and agreement to abide by the relevant Code of Conduct. That is a key document because the Code of Conduct can only apply to a person who is acting in their official capacity as a Councillor; and (para 16) “The Tribunal recognises that an allegation of misappropriation of public funds could be seen as defamatory of those about whom it is made. The Tribunal does not, however consider that the making of such an allegation, of itself indicates a lack of respect toward those individuals. The Tribunal is of the view that the Code of Conduct does not have, and should not have the effect of preventing a Councillor from raising such concerns. Her comments are made on a matter of public interest. To interpret the Code of Conduct in a way which has the effect of precluding her from expressing such views is not necessary for the protection of the Councillors who believe themselves to be libelled – their protection is provided by the Law of Defamation. … The Tribunal interprets and applies the Code of Conduct in a way to give effect to the enshrined right to freedom of expression …”

In Councillor Ian Smith v Knowsley MBC, Case No LGS/2011/0562, Decision on 7 February 2012, the FTT reiterated that (para 6) the test for deciding whether or not there has been a breach of the Code, and any subjective considerations would, at best, serve only to mitigate the action taken as a result of the breach; Art 10 of the ECHR, the right to freedom of expression, provides, what is not an absolute right, but rather a right that has to weigh against the rights of the public as a whole to enjoy transparent and open government at both a local and national level, the lawful check that the Code of Conduct provides on Art 10; the restraints imposed by a Code of Conduct designed to uphold proper standards in public life are in principle likely to be within Art 10, but it is important that the restraints should not extend beyond what is necessary to maintain those standards; and the balancing exercise must take account of the principle of proportionality and the threshold for interference should be set at a standard which takes account of the demands of that pluralism, tolerance and broad mindedness without which there is no democratic society; the approach in each case will be fact sensitive and must be carried out in a pragmatic and sensible way rather than on a conceptual basis; and, as regards sanction, the threshold for disqualification is a high one.

Chapter 11: EC Public Procurement Rules

On the distinction between selection criteria (including tenderers’ technical and professional capacity to perform the contract) and award criteria, see Judgment of the General Court on 8 December 2011 in Evropaiki Dynamiki v ,Proigmena, T-39/08, at paras 18-24. In particular, a criterion based on the tenderers’ experience concerns the tenderers’ ability to perform a contract and does not constitute an award criterion. This must be checked at the selection stage and cannot be taken into account again for the purpose of comparing the tenders.

In R (Greenwich Community Law Centre) v Greenwich LBC [2011] EWHC 3463 (Admin), the Administrative Court (Cranston J) dismissed a challenge by a leading law centre to the decision by Greenwich Council to withdraw its funding of around £200,000 per year. The Council’s decision followed a tender process for funding for legal services, which resulted in awards to four of five previously funded organisations but not to Greenwich CLC. The grounds of challenge included that the Council had adopted an irrational timetable for the tender process, had failed to carry out a risk assessment before withdrawing funding, had breached the statutory equality duty in s. 149 of the Equality Act 2010 and had unlawfully rejected two of the law centre’s funding bids for being a day out of time. The High Court made a number of findings which are of wider importance: first, the requirement in the National Compact to give three months notice of the withdrawal of funding did not apply where an existing funding award expired and the organisation had been warned that it might not be renewed; second, where a tender process for the award of third sector funding had been designed with the statutory equality duties in mind, and was intended to result in the award of funding to the organisations submitting the tenders best suited to the Council’s requirements, there was no obligation to conduct a further equalities assessment before making funding awards; and, third, principles of public procurement law did not require the Council to admit a late tender where late submission had been partly the fault of the Council (an incorrect date had been stated at one point in the tender documents) but overall it should have been clear to the law centre what the correct date was.

In JBW Ltd v Ministry of Justice (2012) EWCA Civ 8 CA upheld an order for summary judgment in a claim about a tender procedure for bailiff services. The issues were, first, the scope and application of the exclusion from the PCR of services concession contracts, and, second, the availability of a claim for breach of an implied contract created by an ITT and a response to it. As regards the services contract being a concession contract, MoJ relied on recent ECJ decisions in Wasser (C-206/08) and Stadler (C-274/09) to argue that it was sufficient to satisfy the definition of services concession that payment to the contractor came from third parties rather than the contracting authority, and that some risk was transferred from the contracting authority to the contractor, even if that risk was small having regard to the nature of the services to be provided. CA held that the contracts at issue lacked many of the typical features of a concession contract in that, for example, the third parties making payment were compulsory recipients of services rather than customers to whom the contractor was truly exploiting the relevant services; the contractor had no opportunity to exploit the services by developing the market/customer base; and MoJ retained close control over the way in which the services were provided. However, CA went on to hold that the contracts were services concessions excluded from the scope of the PCR on the basis that there was some transfer of risk from MoJ, there was no direct payment by MoJ, a service was provided to third parties, and it did not matter that they were unwilling recipients of the services. As regards implied contract, CA held that it would have been open to the parties expressly to contract to abide by obligations identical to those set out in the PCR and there was no reason why an implied contract ought not to cover the same ground; that there could be implied a private law contract to consider tenders submitted as required by the invitation to tender, and also to consider them in good faith; but that there could not be implied a contract containing the fuller set of obligations, mirroring the PCR for three reasons. First, those obligations were not necessary to give efficacy to the contract. Second, there could have been no common intention to imply these obligations as MoJ had always proceeded on the basis that the PCR did not apply, because the contracts were services concessions. Third, a power reserved by the MoJ (in standard terms) to alter the terms of the tender process as set out in the ITT was inconsistent with an implied contractual obligation to act with transparency. Whilst the ruling was concerned with contracts which fell outside the PCR, much of what the Court said is, at least arguably, applicable to tender processes concerning contracts which fall within the scope of the PCR.

 Chapter 13: Acquisition, Appropriation and Disposal of Land

R (Salford Estates Ltd) v Salford City Council, on LGA 1972 s123, is reported at [2011] LGR 982.

Chapter 14A: Local Government and Information

On whether public authorities are entitled as of right to rely on any exception/exemption under either FoIA 2000 or EIR 2004, see the decision, about EIR 2004, of the Court of Appeal in Birkett v DEFRA [2011] EWCA Civ 1606. Mr  Birkett argued that it was necessary to interpret Council Directive 2003/4/EC, on public access to environmental information, which implements the Aarhus Convention on Access to Information, Public Participation in Decision Making and Access to Justice in Environmental Matters, and in turn EIR 2004, as preventing a public authority from relying on a new or different exemption after the internal review stage; otherwise the complainant would not have an effective remedy because they would not know the reasons for the public authority’s refusal of their request for information. The Court of Appeal rejected Mr Birkett’s argument. As a result of this decision, the general rule is that public authorities can rely on any exception/ exemption at any time under EIR 2004 or FoIA.

FTT Decisions include Herbert v ICO and West Dorset DC, EA/2011/0157, on FoIA s14 and vexatious requests; King v ICO and Crawley BC, EA/2010/0126, on FoIA s44 and prohibition from disclosure; Newcastle Upon Tyne Hospital NHS Foundation Trust v ICO, EA/2011/0236, on FoIA s21 and accessibility of information; Cross v ICO and Havant BC, EA/2011/025, on the EIRs; Martyres v ICO and NHS Cambridgeshire, EA/2010/020, on s41 FoIA and confidentiality and on FoIA s21; Waites v ICO and NHS Wakefield District PCT, EA/2011/0166, on s36(2)(b) FoIA on free and frank provision of advice and exchange of views for purposes of deliberation; and Greenwood v ICO and Bolton MBC, EA/2011/0131 & 0137, on s40 FoIA and data protection, in which a request was made for disclosure of information revealing the declarations of interest which had been made by officials employed by Bolton MBC. The request was not limited either by reference to the nature of the interests in question or the seniority of the individual officers, although as it happened the relevant register of interests only recorded declarations from principal officers and above. The withheld information by its very nature comprised information about what individual officers got up to when they were not at work and, as such, was inherently private information. However, it was private information which plainly had a bearing on the discharge of the officers’ duties, hence its inclusion on the register of interests. The FTT concluded that: the names, departments, sections and job titles of all officers who had made entries on the register should be disclosed and that, in addition, in relation to chief officers, information revealing other professional commitments (e.g. consultancies) should be disclosed but that the remainder of the information should be withheld. In reaching these conclusions, the rejected arguments advanced by the Council that disclosure of any of the data would have a “chilling effect” on the system of declarations. In its view, officers would still be inclined to make declarations, the disclosure notwithstanding, particularly because of the “auditor effect”, namely “disclosure would enable members of the public to scrutinize the information and challenge any inaccuracies or omissions” which was “likely to add frankness in declaration” (para. 30). However, it accepted that withholding the bulk of the requested information was justified. This was particularly in view of the facts that disclosure of some of the information would be likely to cause substantial distress and would be extremely intrusive into the lives of officers and, further, disclosure would interfere with the private lives of third parties involved in the interest in question (paras. 33-43).

Chapter 18: Sources of Funds – Council Tax

Note the Local Government (Structural Changes) (Finance) (Amendment) Regulations 2012, SI 2012/20; and the Local Authorities (Conduct of Referendums) (Council Tax Increases) (England) Regulations 2012, SI 2012/ 444.

Chapter 19: Sources of Funds – Non-Domestic Rating

Note the Non-Domestic Rating (Collection and Enforcement) (Amendment) (England) Regulations 2012, SI 2012/24; the Non-Domestic Rating (Electronic Communications) (England) Order 2012, SI 2012/25; and the Non-Domestic Rating (Small Business Rate Relief) Order 2012, SI 2012/148. Note the Local Government Finance Bill, which proposes amending existing legislation to change how non-domestic rates are distributed to local authorities by inserting a new schedule (7B) in the 1988 Local Government Finance Act, which sets out the parameters of how that new system will work, including: how total business rates should be split between central and local government; a duty on billing authorities to either pay a “tariff” to, or receive a “top up”from, Central Government; and for billing authorities to make payments to upper tier authorities: this will balance funding across local authorities in order to ensure they all start on a stable footing and enable upper tier authorities to be included within the new system; that the “levy” on disproportionate growth and “safety net” payments will be handled via a separate single account, and that decisions about how these will be set will be taken in regulations; allowing for authorities to retain in full the rates growth in designated Tax Increment Financing (TIF2) and Enterprise Zone areas; and that local authorities can choose to form “pools” and can then be treated as a single authority under the scheme; and which also requires authorities to establish a council tax reduction scheme by 31 January 2013.

Chapter 20: Capital Finance

Note the Local Authorities (Capital Finance and Accounting) (England) (Amendment) Regulations 2012, SI 2012/265, whose main effects are to bring securitisation within the capital finance framework, to relax the rules on bond investments, and to clarify the definition of capital expenditure; and the CLG Commentary on the changes, which slightly amends guidance with respect to Minimum Revenue Provision in the context of Housing Revenue Account reforms.

Chapter 23: Housing

Housing Allocation

An allocation scheme which required a gypsy applying for a caravan site pitch to provide documentary evidence of an address for correspondence within the area was not irrational because it required connections to the local area. A gypsy or traveller could use a “care of” address: R (McDonagh) v Hackney London Borough Council (QBD, unreported, judgment of Kenneth Parker J of 15 February 2012).

The DCLG published a consultation document entitled “Allocation of Accommodation – Guidance for Local Housing Authorities in England” in January 2012 in preparation for the coming into force of sections 145-147 of the Localism Act 2011. The consultation period ends on 30 March 2012.

Housing Benefit

Housing benefit is usually only paid to cover communal fuel or cleaning costs where the individual is in sheltered accommodation. In Oxford City Council v Basey [2012] EWCA Civ 115 the Council had refused to pay the claimant housing benefit to cover these costs primarily because it interpreted sheltered accommodation as requiring a dedicated warden, which the claimant’s accommodation did not have. The Court of Appeal, agreeing with the Upper Tribunal, held that sheltered accommodation is a more flexible concept and may take many forms.

A landlord providing supported housing was not, on the facts, a “person affected” within the meaning of regulation 3 of the Housing Benefit and Council Tax Benefit (Decisions and Appeals) Regulations 2001 where it sought to bring appeals against housing benefit decisions in respect of its tenants.

Housing benefit is for the benefit of occupiers, not landlords, who could be authorised to act as agent where appropriate: Wirral Metropolitan Borough Council v Salisbury Independent Living Ltd [2012] EWCA Civ 84.

The Social Security (Electronic Communications) (No.2) Order 2011 amends the Housing Benefit Regulations to allow the use of the direct.gov.uk website to notify the DWP of the death of a family member of a benefit recipient, from 23 January 2012.The Income-Related Benefits (Subsidy to Authorities) Amendment Order 2011 makes provision for the payment of subsidies to authorities administering housing benefit, reimbursing for both the benefit paid and towards administration costs. New rent limits are also specified, from 1 February 2012.

Gypsies

In Rooney v Secretary of State for Communities and Local Government [2011] EWCA Civ 1556 the Court of Appeal confirmed that an application for planning permission under the Town and Country Planning Act 1990 by gypsies on a caravan site engages a fundamentally different statutory scheme to that of the Housing Act 1996. As a result of the full merits review conducted by the planning inspector, which included proportionality, the court was not also required to investigate proportionality and the judgments of the Supreme Court in Manchester City Council v Pinnock [2010] UKSC 45; [2010] 3 WLR 1441 and Hounslow London Borough Council v Powell [2011] UKSC 8; [2011] 2

WLR 287 did not apply.

Human Rights

The European Court of Human Rights found a breach of the positive obligation on the part of the State to secure respect for the Article 8 rights of an individual where the State had failed to take any enforcement action in respect of a court judgment entitling the individual to recover a flat from which she had been wrongly evicted for non-repayment of a loan: Kontsevych v Ukraine (Application No. 9089/04) (judgment of 16 February 2012). The applicant was awarded damages of €8,000.

The making of a possession order in favour of the Moscow Housing Department over a property which was the applicant’s home, purchased in good faith, without consideration of the proportionality of the order was a breach of Article 8: Gladysheva v Russia (Application No. 7097/10) (judgment of 6 December 2011). The domestic court was ordered to restore the applicant’s title.

In a case evidencing considerable grumpiness, the applicant in Maempel v Malta (Application No. 24202/10) (judgment of 22 November 2011) complained that his Article 8 rights had been infringed by fireworks displays which were carried out by private individuals in fields close to his home for about two weeks per year. The European Court of Human Rights accepted that it was irrelevant that the infringing action was being done by private individuals, and accepted that fireworks displays could be described as noise pollution, but found no breach of Article 8 on the basis that there was no lasting damage (which was minor in any event) and the applicant had bought the house knowing of such activities.

Right to Buy

The DCLG published a consultation document entitled “Reinvigorating the Right to Buy and One for One Replacement” in December 2011 proposing an increase on the right to buy caps. The consultation period ended on 2 February 2012.

In Francis v London Borough of Southwark [2011] EWCA Civ 1418 the Court of Appeal confirmed that an alleged denial of an entitlement to exercise the right to buy could only be challenged by bringing proceedings in the County Court and not by an action for damages for breach of statutory duty.

Housing Revenue Account

The DCLG published, on 1 February 2012, its final determinations on the subsidies that local authorities will receive or pay as they exit the Housing Revenue Account system on 28 March 2012, as well as the new determinations for April 2012 onwards under the Localism Act 2011, and the introduction of a cap on the level of housing debt.

Legislation

Certain provisions of the Localism Act 2011 came into force on 15 January 2012. Local housing authorities are entitled to draft and consult on allocation schemes under sections 145-147, and are obliged to publish a tenancy strategy under sections 150-153. The Secretary of State may make regulations as to the applicable procedures regarding flexible tenancies (section 154) and on allocation schemes (sections 145-147). The Regulation Committee of the Homes and Communities Agency is established in preparation to take over the functions of the Tenant Services Authority (section 178).

Chapter 24: Local Authority Education Law

In R (Roberts) v Welsh Ministers and Cardiff City Council [2011] EWHC 3416 (Admin) it was held that a local authority is not precluded from adopting a policy which seeks to match school places with the likely demand from children within the catchment area of the school. The Judge held that the effect of s9 of EA 1996 and s86(1) of SSFA 1998 was that all local authorities have a duty to comply with parental preference unless compliance with the preference would prejudice the provision of efficient education or efficient use of resources within their administrative area. However, these did not preclude the adoption of a policy which sought to match school places with the likely demand from children within the catchment area of the school. Nor did the provisions make it unlawful for a local authority to have a policy which encourages children to attend the school in whose catchment area they reside. The Judge held that a local authority has an unqualified obligation to secure efficient primary education to meet the needs of the population of its area (under s13 of EA 1996) and it was open to them to conclude that an appropriate means of securing such efficient education for the whole of its area was to seek to achieve a reasonable match between the number of places at a particular school and the demands for such places from the catchment area of the school.

On barring decisions and legitimate expectations, see R (W) v Secretary of State for Education [2011] EWHC 3256, in which a teacher unsuccessfully challenged the SoS’s decision under s142 of EA 2002 to bar him from working with children on grounds including that it was an abuse of power because it was taken in breach of a substantive legitimate expectation. Singh J concluded that the Claimant did have a substantive legitimate expectation, based on a letter, that he would not have further action taken against him unless further misconduct came to the Department’s attention: the letter contained a representation to that effect which was clear, unambiguous and devoid of relevant qualification. However, the SoS had satisfied the burden of proving that there was an overriding reason in the public interest which entitled him to change his mind. The test was whether the SoS had a legitimate aim and had acted proportionately. The legitimate aim was the manifest and pressing public interest in protecting children, in particular from the risk of sexual abuse. As for proportionality, the Judge found that the decision in question was the SoS’s decision to reconsider the Claimant’s case (rather than the SoS’s subsequent decision to bar the Claimant from working with children). He concluded that the decision to reconsider was proportionate, given that the SoS had only reconsidered cases where it was thought that there might be a current risk to children; the SoS had sought to devise fair procedures which would be followed before a barring order was imposed, which included the right to make representations, the involvement of an expert panel chaired by an eminent and respected person from outside the department, the advice of the Lucy Faithfull Foundation which had expertise and experience in the field and the opportunity to have a face to face assessment; and there was a right of appeal to an independent judicial body against any subsequent decision to bar an individual from working with children. Singh J commented that in any event he would have dismissed the claim because the right to appeal to a tribunal against the barring decision was an adequate alternative remedy.

On the right to education conferred by Art 2 of Protocol 1 of the ECHR, and Art 14 read therewith, see R (Hurley) v SoS for BIS [2012] EWHC 201 (Admin).

In Macaulay v Newham LBC, 16 February 2012, the High Court refused the application for an injunction on behalf of teachers suspended from working at one of the Borough’s schools pending an investigation into allegations of falsification of attendance registers. The teachers argued that their suspension was a breach of the implied term of trust and confidence because there was insufficient evidence to support the allegations and no need for them to be suspended pending the investigation, which had already lasted 4 months. They sought interim relief pending trial compelling the authority to end their suspension and make reasonable endeavours to find alternative work for them. Lloyd Jones J refused the applications. In doing so, he recognised that what was sought by way of interim relief would effectively dispose of the proceedings and therefore that it was appropriate to consider the likelihood of the teachers obtaining relief at trial and not simply whether there was a ‘serious issue to be tried’ in accordance with standard American Cyanamid principles. He concluded that the suspensions on full pay were properly in accordance with the school’s disciplinary procedure, which provided for suspensions in cases of alleged gross misconduct. He further considered that the local authority had a sufficient basis for investigating the allegations, and that the authority was acting reasonably in withholding further evidence pending the completion of the investigation as to do otherwise might prejudice the outcome of the investigation. He accepted that the authority had acted reasonably in concluding that having the teachers at school during the investigation might prejudice the outcome of that investigation. He also accepted that although the investigation was taking some time, the period to date had been reasonable having regard to the nature of the investigation and the steps that had been taken. In the circumstances, he considered that there was not a serious issue to be tried, or a good arguable case and accordingly the teachers failed the first American Cyanamid hurdle. However, he observed that even if they did have a good arguable case, an injunction would have been refused because damages would not have been an adequate remedy for either party and, moreover, there had been a breakdown of trust and between the teachers and the school which meant that an injunction was inappropriate. 

Note the School Admissions (Admission Arrangements and Co-ordination of Admission Arrangements) (England) Regulations 2012, SI 2012/8, the School Admissions (Appeal Arrangements) (England) Regulations 2012, SI 2012/9, and the School Admissions (Infant Class Sizes) (England) Regulations 2012, SI2012/10. The first of these covers selection, priority for “looked after” children, consultation on admission arrangements, publication of admission arrangements, variation of determined admission arrangements, reference of objections to the Adjudicator (in the case of both maintained schools and academies), and co-ordination of admission arrangements, and mainly apply in relation to arrangements under which pupils are admitted to schools in England for the academic year 2013-2014 and subsequent years. The second prescribe the manner in which an Appeal Panel is to be constituted and the payment of allowances to Appeal Panel members and travel and subsistence expenses. The third revoke and replace the Education (Infant Class Sizes) (England) Regulations 1998 and the Education (Infant Class Sizes) (England) (Amendment) Regulations 2006, adding new categories of excepted pupils and changing the circumstances in which pupils cease to be excepted. The limit imposed is a maximum of 30 pupils in an infant class at any time while an ordinary teaching session is conducted by a single school teacher (or, where the session is conducted by more than one school teacher, a maximum of 30 pupils for every teacher). This limit applies in relation to the 2013-2014 school year and subsequent years for any maintained school which contains an infant class. Excepted pupils are children for whom suitable education cannot be provided in an infant class at that school without relevant measures (as defined) having to be taken and who are within one of nine specified categories.

Note the Education (School Teachers’ Appraisal) (England) Regulations 2012, SI 2012/115, which apply to any teacher employed for one school term or more, but not to any teacher whilst the teacher is undergoing an induction period, or any teacher whilst that teacher is the subject of capability procedures, and which require governing bodies and local authorities to have and make available a written document setting out the appraisal process; establish the appraisal period; require head teachers, governing bodies and local authorities to set objectives for teachers and inform each teacher of the standards against which that teacher’s performance is to be assessed; require the annual appraisal of the performance of teachers, an assessment of the teacher’s professional development needs and, where relevant, a recommendation on the teacher’s pay; and require the appointment of external advisers in respect of head teachers. The combined effect of the Regulations and the Model Policy, both of which come into force on 1 September 2012, is to make a number of changes to the way in which teachers are appraised and are monitored prior to removal. Most of the prescription in the current regulations will disappear, including the three hour limit on classroom observation. After September 2012, governing bodies and local authorities will be free to make their own decisions about the amount of observation that is appropriate for their teachers. They will also be free to decide many other matters on which they currently have no flexibility. The Model Policy removes an informal capability process and the suggested length of the monitoring and review period following a first warning has been reduced in length from 20 weeks to between 4-10 weeks. The length of the review period must be reasonable in the circumstances of each case, and must provide sufficient time for improvement to take place.

Note the Special Educational Needs (Direct Payment) (Pilot Schemes) Order 2012, SI 2012/206, which came into force on 30 January 2012. S532A of EA 1996 allows local authorities to make a payment to a person with a SEN statement or learning difficulty assessment for the purpose of securing (a) special educational provision specified in a SEN statement, (b) provision identified in a learning difficulty assessment as required to meet education and training needs, and/or (c) transport or anything else that may be subject to arrangements in s508B(1) (school children), s508F(1) (adult learners) or s509AA(7)(b) (sixth formers). Local authorities are only permitted to make such a payment in accordance with a pilot scheme made under s532B. S532B enables the SoS to make pilot schemes by order. Under the above Order the pilot scheme is for a period of two years, and applies to the 36 local authorities listed in Schedule 2. This is a significant change to how SEN provision is provided. The pilot scheme applies to a range of local authorities and those authorities are required to follow the scheme for all people with SEN statements or learning difficulty assessments.

Note the School Admissions Code and School Admission Appeals Code (Appointed Day) Order 2012, SI 2012/216, providing that the School Admissions Code and the School Admissions Appeal Code came into force on 1 February 2012.

Note the School Finance (England) Regulations 2012, SI 2012/335, which define the local authority education budgets (the non-schools education budget, the schools budget, the central expenditure and the individual schools budget) and set out how local authorities are to allocate funding from the individual schools budget to maintained schools and private, voluntary and independent providers of free early years provision (relevant early years providers) through a locally determined formula. These apply for the financial year 2012-2013 and replace previous versions of the regulations. There are three significant changes from the regime applicable under the 2011 Regulations: (1) Where a pupil in respect of whom a pupil premium is payable is permanently excluded from one school and admitted to another school, provision is made for the budget shares of both schools to be adjusted by an amount which equates to the appropriate portion of that premium; (2) Provision is made to allow for the remission of boarding fees for pupils registered at Academies to be charged to the schools budget; and (3) There are changes to the calculation of the minimum funding guarantee and to the circumstances in which the guarantee may be varied or disapplied.

Note the Education (School Day and School Year) (Wales) (Amendment) Regulations 2012, SI 2012/248 (W.41); the Education (Wales) Measure 2009 (Commencement No 3 and Transitional Provisions) Order 2012, SI 2012/320 (W.51); and the Education (Wales) Measure 2009 (Pilot) Regulations 2012, SI 2012/321 (W.52).

Chapter 25: Social Services

R (JG) v Lancashire County Council, on raising a FACS eligibility threshold and revising a social care services charging policy, is reported at [2011] LGR 909. R (O) v Hammersmith & Fulham LBC, on the appropriate placement for a child with autistic spectrum disorder, is reported at [2011] LGR 931, R (Palmer) v HM Coroner for Worcestershire, on the extent of a local authority’s duty to safeguard the right to life of vulnerable individuals who are in receipt of care from them, is reported at [2011] LGR 952.

On the fee to be paid by a local authority for residential care, see R (Mavalon Care Ltd) v Pembrokeshire County Council [2011] EWHC 3371 (Admin).

Note the Carers Strategies (Wales) (Amendment) Regulations 2012, SI 2012/282 (W.46).

Note also that a Welsh Government Consultation seeks views by 30 May 2012 on whether the existing social services complaints processes should be amended to meet the needs of service users

Chapter 26: Environmental Law

Note the Contaminated Land (Wales) (Amendment) Regulations 2012, SI 2012/283 (W.47).

On 23 February 2012 DEFRA and the Welsh Government instituted a Consultation (for response by 12 April 2012) on proposed amendments to the Waste (England and Wales) Regulations 2011. The 2011 Regulations transpose the revised Waste Framework Directive 2008/98/EC. A Judicial Review has challenged the transposition of the requirements of the Directive on the separate collection of recycling. DEFRA and the Welsh Government recognise that as drafted the Regulations do not accurately reflect these requirements and that they should be amended. The Court has granted a six-month stay of the Judicial Review proceedings to do this, until June 2012. The proposed amendment does not represent any change in the existing policy position. Nor has there been any change in EU law. The Consultation is only on whether the drafting changes serve to better transpose the Directive. The subject matter is the separate collection of recycling.

The Judicial Review is challenging the inclusion of co-mingled collection as a form of separate collection as being contrary to the Directive’s aims and obligations to promote high quality recycling, and a failure correctly to transpose the Directive. It is alleged that setting out that co-mingled collection is a form of separate collection is contrary to the Directive’s aims and obligations to achieve separate collection of four waste streams by 2015, and that separate, not co-mingled collection is desirable for reasons including that it achieves a higher standard of recyclate material.

Chapter 27: Highways

In Cusack v Harrow LBC [2011] EWCA Civ 1514 CA held that the Council was entitled under s66 HA 1980 (rather than s80) to erect barriers, in order to protect pedestrians, to prevent a property owner from driving over the footway in order to gain access to his forecourt, subject to paying compensation.