To obtain civil legal aid to bring proceedings against a public authority the applicant must show that the proposed action is within the scope of LASPO, the Legal Aid, Sentencing and Punishment of Offenders Act 2012. One provision that may be relied upon is paragraph 1 of Schedule 1. This applies in the case of alleged “abuse by a public authority of its position or powers”.  What this means has been considered by the Court of Appeal in Director of Legal Aid v R (OTA Sunita Sisangia) (2016) EWCA Civ 24.  Sub-paragraph (4) of paragraph 1 was held not to be an exclusive or comprehensive definition.  The fact that the expression cannot be given a hard-edged definition does not mean that the concept itself is meaningless.  Moreover, the ingredients of abuse of power have been expressed in appellate cases, including by the House of Lords in R (Pulhofer) v Hillingdon LBC [1986] AC 484 at 518. “Abuse of position or power” is a recognized judicial concept. Like many other public law concepts, it is “both flexible and context-specific”.

The Supreme Court in Samin v Westminster City Council, Mirga v SSWP [2016] UKSC 1, was concerned with the rights of residence in the UK and benefit rights in the UK of “persons from abroad”, specifically EU nationals (from Austria and Poland), pursuant to the Immigration (European Economic Area) Regulations 2006, SI 2006/1003 (“the EEA Regulations”), made under EU Directive 2004/38/EC.  Mr Samin was born in Iraq in 1960. In 1992 he and his family were granted asylum in Austria.  He was granted Austrian citizenship the following year. He then became estranged from his wife and children and came to the UK in December 2005 Since then he has lived in the UK alone.  He is socially isolated.  He suffers from poor mental and physical health.

Mr Samin occupied private accommodation until 2010. He then applied to Westminster City Council (“the Council”) for housing under the homelessness provisions of the Housing Act 1996 (“the Housing Act”).  The Council decided that he was “a person from abroad who is not eligible for housing assistance” within the meaning of Section 185(1) of the Housing Act, because he did not have the right of residence in the UK under EEA Regulations. That decision was affirmed in the Central London County Court, whose decision was in turn upheld by the Court of Appeal.  The Supreme Court unanimously dismissed his appeals.

The Supreme Court held first that the domestic law did not infringe Mr Samin’s EU Treaty rights. It held second (paragraphs 58-70) that there was no lack of proportionality on account of individual consideration not having been given to the individual case.  The important point of principle is that a proportionality exercise is not required in every case where the right of residence and/or the right against discrimination under the EEA Regulations is invoked.

On the same day, 27 January 2016, the Supreme Court also gave Judgment in Youssef v SSFCO [2016] UKSC 3, in which the issues that arose included the standard of review.  Lord Carnwath, giving the Judgment, said, having referred to Kennedy v Information Commissioner [2015] AC 455 and Pham v SSHD [2015] 1 WLR 1591:

“55.      In Keyu v Secretary of State for Foreign and Commonwealth Affairs [2015] UKSC 69; [2015] 3 WLR 1665 (decided since the hearing in this appeal) this court had occasion to consider arguments, in the light of Kennedy and Pham, that this court should authorise a general move from the traditional judicial review tests to one of proportionality. Lord Neuberger (with the agreement of Lord Hughes) thought that the implications could be wide-ranging and “profound in constitutional terms”, and for that reason would require consideration by an enlarged court. There was no dissent from that view in the other judgments. This is a subject which continues to attract intense academic debate …  It is to be hoped that an opportunity can be found in the near future for an authoritative review in this court of the judicial and academic learning on the issue, including relevant comparative material from other common law jurisdictions. Such a review might aim for rather more structured guidance for the lower courts than such imprecise concepts as “anxious scrutiny” and “sliding scales”.

56. Even in advance of such a comprehensive review of the tests to be applied to administrative decisions generally, there is a measure of support for the use of proportionality as a test in relation to interference with “fundamental” rights (Keyu paras 280-282 per Lord Kerr, para 304 per Lady Hale). Lord Kerr referred to the judgment of Lord Reed in Pham (paras 113, 118-119) where he found support in the authorities for the proposition that:

 “… where Parliament authorises significant interferences with important legal rights, the courts may interpret the legislation as requiring that any such interference should be no greater than is objectively established to be necessary to achieve the legitimate aim of the interference: in substance, a requirement of proportionality.” (para 119)

 See also my own judgment in the same case (para 60), and those Lord Mance (paras 95-98) and Lord Sumption (paras 105-109), discussing the merits of a more flexible approach in judging executive interference with important individual rights, in that case the right to British citizenship.

57. On the other hand, in many cases, perhaps most, application of a proportionality test is unlikely to lead to a different result from traditional grounds of judicial review. …”

Lord Carnwath further observed, in paragraph 61:

“… Judicial review is a discretionary remedy.  The Court is not required to ignore the appellant’s own conduct, or the extent to which he is the author of his own misfortunes. …”

In Leeds City Council v HMRC [2015] EWCA Civ 1293 the Court of Appeal held that the Upper Tribunal had been correct to hold that a local authority was not entitled to repayment of overpayments of VAT that were outside the 3 year domestic time limit.   Application of that time limit did not offend EU principles of effectiveness, equivalence, certainty and legitimate expectation.

In Beckford v Southwark LBC,UKEAT/0210/14/JOJ, Langstaff J held that the Court of Appeal announcement of a 10% increase in general damages in most tort actions applied to compensation in an Employment Tribunal for injury to feelings consequent upon discrimination.

In Bromley LBC v Heckel [2015] EWHC 3606 (TCC) Edwards-Stuart J held that it was not appropriate to extend a claimant local authority’s time for service of Particulars of Claim (pursuant to an application made before the time for service of the Particulars of Claim had expired) where the authority (1) had not issued proceedings until the last minute and (2) could have pleaded an arguable case against the defendant project manager within the time required by the rules (or the Claim Form would have been an abuse of the process of the Court if the claimant was unable to set out the nature of the case that it intended to make).  The Court’s discretion would not be exercised in the claimant’s favour.  Parties who issue late are “obliged to act promptly and effectively”.

When is there an entitlement to early payment of an unreduced pension pursuant to Regulation 19 of the Local Government Pension Scheme (Benefits, Membership and Contributions) Regulations 2007, SI 2007/1166, as amended?  Regulation 19(1) provides that where a LGPS member is dismissed, either by reason of redundancy or because his employing authority has decided that, “on the grounds of business efficiency”, it is in their interests that he should leave their employment, and, in either case, the member has attained the age of 55, he is entitled to immediate payment of retirement pension, without reduction.  What is meant by “grounds of business efficiency”?  In Ascham Homes Ltd v Auguste [2015] EWHC 3517 (Ch) Hildyard J held that, in the absence of a settled definition, it fell to the employing authority to decide whether the grounds for the cessation of employment constituted “grounds of business efficiency”.  If the employer did not make any determination, then the true grounds of its decision to terminate the member’s employment had to be investigated.  The test whether the appellant’s decision was on grounds of business efficiency was whether it was made pursuant to some change in the way of conducting the business with a view to ensuring that its resources could be more efficiently deployed, without regard to personal or subjective characteristics or the performance of the post-holder.  Although Regulation 19 did not require the cessation of service to be exclusively on the ground of “business efficiency”, that had to be the preponderant reason.

It is to be noted that a somewhat similar concept, termination of employment “in the interests of the efficient exercise of the employing authority’s functions” appears in Regulation 4 of the Local Government (Early Termination of Employment) (Discretionary Compensation) (England and Wales) Regulations 2006, SI 2006/2914.

A compensation claim against a local authority for child abuse in foster care in the period 1985-1988 failed in the Court of Appeal in NA v Nottinghamshire County Council [2015] EWCA Civ 1139 in the light of the then legislative framework within which the authority exercised its powers.  The authority had not been negligent in placing the child with foster carers.  Nor had it been negligent in supervising the placement.  It retained its overarching powers.  It was not vicariously liable for the abuse perpetrated by the foster parents.  Nor was it responsible for their actions on the basis of a non-delegable duty of care.  It had taken reasonable steps to protect the child from harm.  Fostering is a function which the authority must, if it thinks it the appropriate choice, entrust to others. By arranging the foster placement the authority discharged rather than delegated its duty to provide accommodation and maintenance for the child.  It was inherent in the permitted choice of foster care that it must be provided by third parties rather than by the authority itself.  Moreover, there is no non-delegable duty not deliberately to assault or inflict harm.

In Hunt v North Somerset Council [2015] UKSC 51 the Supreme Court unanimously allowed an appeal by Mr Hunt in relation to costs from (2013) EWCA Civ 1320. Mr Hunt suffers from ADHD, learning difficulties and behavioural problems. As a result, the Council were statutorily required, so far as reasonably practicable, to secure access for him to sufficient educational and recreational-leisure time activities for the improvement of his well-being. On 21 February 2012, the Council made a decision to approve a reduction of £364,793 from its youth services budget for 2012/2013. Mr Hung brought judicial review proceedings of that decision. He argued that the decision was unlawful on two grounds: (1) the Council had failed its duty under Section 507B of the Education Act 1996 to take properly into account the views of young persons with difficulties such as his; and, (2) it failed to fulfil its public sector equality duty under Section 149 of the Equality Act 2010 to have due regard to the equality needs of disabled individuals.

Wyn Williams J rejected Mr Hunt’s challenges to the legality of the decision. The Court of Appeal allowed Mr Hunt’s appeal. It, nonetheless, refused to make a quashing order, considering that it was too late to unwind the entire revenue budget for the financial year. It also ordered him to pay half of the Council’s costs. Mr Hunt appealed to the Supreme Court on the basis that the Court of Appeal should have made an order for costs in his favour (and a declaration that the Council had failed in its statutory obligation.

In relation to costs, the Supreme Court said (paragraph 15), that although the discretion of a Court in a matter of costs is “wide” and it is “highly unusual” for the Supreme Court to entertain an appeal on the issue of costs, the Court of Appeal said that it reached its decision “as a matter of principle”, treating the Council as the “successful party”. The Supreme Court ruled that in that respect the Court of Appeal fell into error. As the Court of Appeal rejected the Council’s case on the two issues, it was only successful in the limited sense that the findings of failure came too late to do anything about what had happened in the past, although this occurred through no fault on Mr Hunt’s part. It was unsuccessful on the substantive issues regarding its statutory responsibilities

The Supreme Court went on to say (per Lord Toulson):-

“16. There are also wider public factors to consider.  Public law is not about private rights but about public wrongs … A court may refuse permission to bring a judicial review claim if it considers the claimant to be a mere meddler or if it considers that the proceedings are unlikely to be of sufficient significance to merit the time and costs involved.  But in this case the court considered that the issues were of sufficient significance to give permission.  And the ruling of the court, particularly under Section 149, contained a lesson of general application for local authorities regarding the discharge by committee members of the council’s equality duty. If a party who has been given leave to bring a judicial review claim succeeds in establishing after fully contested proceedings that the defendant acted unlawfully, some good reason would have to be shown by he should not recover his reasonable costs.

17. I cannot see that the fact that in this case the determination of illegality came after it was too late to consider reopening the 2012/13 budget provided a principled reason for making the appellant pay any part of the respondent’s costs.  On the contrary, for the reasons stated the appellant was in principle entitled to some form of cost orders in his favour. …”

The Judgment of Green J in R (British Academy of Songwriters, etc) v SoS for BIS [2015] EWHC 1723 (Admin) is very long (106 pages, 318 paragraphs) and its subject matter (creating an exception to copyright based upon personal private use) is far removed from local government.  However, it is important on judicial review generally (and on State Aid).  The Judge addresses (paragraphs 127-148 inclusive) the appropriate standard of review, how intense the review should be, emphasizing that the Court must not, even in a case of intensive review, substitute its own view of the merits for that of the decision maker.  He addresses (paragraphs 149-163 inclusive) the question whether the relevant provision in an EU Directive had “direct effect”.  He addresses (paragraphs 164-168 inclusive) the principles of law governing consultations (and the appraisal of evidence), and in particular the fourth Gunning principle, that the product of consultation must conscientiously be taken into account by the decision maker, observing that this principle reflects two broader principles, first, that a decision must be based upon a reasonable view of the evidence it is said to be based upon, including the product of consultation, and, secondly, that the outcome must not be predetermined, because if it is then the decision-maker will not have acted “fairly”, and fairness is “the leitmotif of the principles governing consultations”.

The Judge observed (paragraph 9) that the Government had a “strong predisposition”, which it set out clearly in the consultation document. Nonetheless he rejected (paragraphs 274-281 inclusive) a challenge based on alleged predetermination.  He stated (paragraph 277):-

“… the Secretary of State was entitled to have a strong predisposition. The distinction between a predisposition and predetermination is well understood in the law. A decision maker may consult upon an issue that he has a firm view about. Indeed, if the decision maker’s cards are laid squarely upon the table consultees are fully informed as to that predisposition and have the clearest possible target at which to aim their submissions. A strong predisposition is not, therefore, inimical to a fair consultation assuming, of course, that the decision maker is prepared to keep an open mind and be willing to change his or her views if the evidence and submissions tendered are properly persuasive.”

Finally, the Judge considers (paragraphs 282-315 inclusive) the issue of whether there was unlawful State Aid and the approach to be adopted.  Green J stated:-

“283.     Article 107(2) and (3) TFEU stipulate that aids of certain types either shall or may be compatible with the internal market and that the determination on whether an aid is so compatible is the exclusive prerogative of the European Commission: see for example Case C-354/90 FNCEPA [1991] ECR I-5505 at paragraph 14. Article 108(3) TFEU imposes upon Member States an obligation to inform the Commission of plans to grant or alter aid and it prohibits the implementation of proposed measures pending such notification. It has been long established that Article 108(3) TFEU is directly effective. As such, it may be relied upon before domestic courts as a ground for impugning the legality of a legislative measure said to constitute unnotified and hence unlawful state aid. In such a challenge the court must form its own view as to whether the impugned measure or act does, or does not, involve the grant of an aid within the meaning of the Treaty: see, for example, R v Customs & Excise Commissioners ex p Lunn Poly Limited [1999] 1 CMLR 1357 at paragraphs 22–24 per Lord Woolfe MR. If the measure does amount to “aid” and it has not been duly notified to the Commission then it is unlawful.

284.      The analysis to be undertaken of “aid” by a Court may involve the consideration of a number of quite different components. In my judgment the question whether there is aid “through State resources” is an objective question for the Court and does not involve the conferral of any margin of appreciation upon the decision maker. The facts which must be considered by the Court do not involve any evaluative judgment on the part of the Defendant; the Court simply has to identify the manner in which the advantage allegedly comes about and then assess the nature of the link between the advantage and the State budget in terms of the closeness and strength of the nexus. The relevant facts are fixed and within a relatively narrow compass. It is possible that the Court, in another case involving other component parts of the definition of “aid”, might need to adopt a more limited review. So, for instance, if the issue was whether the market investor test was satisfied and it could be shown that on one reasonable analysis the test was met a Court might be loathe to substitute its own view for that of the decision maker. I do note in this regard however that the Court of Justice has stated that even where the analysis of whether “aid” exists is “technical or complex” the Court (in casu a judicial review by the General Court of a decision of the Commission) must conduct a “comprehensive review”: see e.g. Case C-487/06P British Aggregates Association v Commission [2008] ECR I-10515 paragraph 114. I emphasise however that no such complex technical or economic issue arises on the facts of the present case and I do not therefore express any view on how a Court would address other more complex components of “aid”.”

Green J then (paragraphs 285-288 inclusive) analysed the four constituent elements of State Aid, and concluded (paragraphs 299-314 inclusive) that there was no aid granted “through” State resources (the second constituent), applying the propositions that he set out at paragraph 306.

In R (London College of Finance & Accounting) v SSHD) (2015) EWHC 1688 (Admin) Cobb J’s observations included the following:-

1. CPR 54.16 could not be clearer. It provides that no written evidence may be relied on unless it has been served in accordance with any rule, or direction of the Court, or the Court gives permission. This rule must be faithfully and strictly observed;

2. Orders, including interlocutory orders, for the filing and service of evidence must be obeyed and complied with to the letter and on time.  Court orders are not preferences, requests or mere indications;  they are orders; there is a public interest in enforcing compliance with Court orders, particularly where the breach is serious and/or significant;

3. Any party in a judicial review claim who seeks to adduce evidence outside the parameters of CPR 54.16 is under an obligation to apply to the Court to adduce that evidence or where relevant for a variation of the order granting permission to file. A person who finds himself unable to comply timeously with his obligations under an order should apply for an extension of time before the time for compliance has expired;

4. If it is possible and practicable, any application for permission to rely on new evidence should be determined before the substantive listed hearing, so that the parties and the Court know where they stand and what they have to read;

5. If it is not possible or practicable to make a decision on the admissibility of the new evidence before the hearing, the Court may have to consider converting the substantive or rolled-up hearing to a case-management hearing; costs orders may follow;

6. In order to promote the efficient and proportionate conduct of litigation, parties are not merely required to comply with the rules and court orders, they are also obliged to co-operate with each other;

7. Within the framework of the Rules, the Administrative Court retains powers to manage its cases flexibly and in accordance with the overriding objective; in this regard it will ensure that no unfairness is caused to the parties.

The Queen’s Speech announces a draft Public Service Ombudsman Bill the main elements of which would include the creation of an overarching Public Service Ombudsman organisation which would include the functions of the Local Government Ombudsman.  A consultation closes on 16 June 2015.