Age assessment and litigation fairness

April 27th, 2016 by Peter Oldham QC in Judicial Control, Liability and Litigation, Social Care

The Court of Appeal handed down an interesting and wide- reaching judgment yesterday (26th April 2016) in LB Croydon v Y [2016] EWCA 398. It directly concerns age assessment cases, but the principles enunciated apply to all litigation, private and public.

Y was an asylum seeker who was assessed by LB Croydon for social services needs.  He was assessed as being over 18.  He brought a judicial review age assessment challenge.  The Upper Tribunal  gave directions listing the case for a 4 day hearing.   Five months later, Croydon applied to the UT for an order that the claim should be struck out or stayed unless Y consented to and co-operated fully with (1) a dental examination (including a dental X-ray), (2) a psychiatric examination and (3) an age assessment by two Croydon social workers.

In making this application, Croydon relied on the Court of Appeal’s decision in Starr v National Coal Board [1977] 1 WLR 63.  Starr was a personal injury claim.  Mr. Starr accepted that in preparing its defence, the NCB needed to be advised by a consultant neurologist who had had the opportunity of examining him. But he objected to examination by the particular doctor chosen by the NCB without explaining why.  He said that he was willing to be examined by any other consultant neurologist of similar qualification and experience.  The NCB applied for a stay of all further proceedings until Mr. Starr submitted to an examination by its chosen doctor.  The Court of Appeal upheld the stay that had been granted by the judge.

The UT judge refused Croydon’s application, saying that it was “most unfortunate” that Y’s representatives would not co-operate, but that it would be “too draconian” to stay or strike out the proceedings.  The judge said that Starr did not apply, first, because (unlike Mr. Starr) Y had not conceded that Croydon’s assessments were necessary; and second, because this was public rather than private law litigation.

Overturning the UT judge’s decision, Lord Dyson MR gave the only reasoned judgment, Macur and Lindblom LLJ agreeing.  On the first point, he said at [16] that it didn’t matter whether there was a concession or not: the question was whether the assessments were in fact “reasonably necessary for the proper conduct of Croydon’s defence”.   The UT judge himself had decided that they were.

On the second point, Lord Dyson said at [17] that “there is no basis in principle for confining the Starr principles to private law litigation… The fundamental common law right of a defendant to defend itself in litigation to which Scarman LJ referred [in Starr] applies in any litigation”.

This is important since it makes it clear that the Starr principle is of general application, whether in courts or tribunals. So – as an example only – the first-tier tribunal should apply similar principles in special educational needs cases where a young person’s needs are in question and the authority or school wants to assess them.

Lord Dyson finished by deciding that, though a UT judge had the normal discretion as to case management issues, there was no reason in the current case for the judge to have decided that the steps which Croydon wanted Y to take could not be properly accommodated in the proceedings. 

So the outcome was that the unless order sought by Croydon was made.

Peter Oldham QC

 

 

 

Brexit: the Information Commissioner speaks

April 26th, 2016 by Peter Oldham QC in Human Rights and Public Sector Equality Duty, Judicial Control, Liability and Litigation

At the beginning of March this year, I wrote a paper on the legal mechanics of Brexit.  (You can find it here if you are interested.) One of the things it discusses is how the UK  – or in some cases England and Wales, and (separately) Scotland – would go about retaining or replacing EU-derived law if the UK left the EU.

On 19th April 2016 the Information Commissioner’s Office put out this statement:-

“The UK will continue to need clear and effective data protection laws, whether or not the country remains part of the EU.

The UK has a history of providing legal protection to consumers around their personal data. Our data protection laws precede EU legislation by more than a decade, and go beyond the current requirements set out by the EU, for instance with the power given to the ICO to issue fines. Having clear laws with safeguards in place is more important than ever given the growing digital economy, and is also central to the sharing of data that international trade relies on.”

Data protection is an interesting example of how Brexit might affect our law, and throws up the sort of questions which would apply across the legal board in the event of a “leave” vote.

Much of our data protection law, though derived from EU instruments, is embodied in primary legislation, the Data Protection Act 1998 – so that the repeal of section 2 of the European Communities Act 1972 (if that happened) would not in itself result in the repeal of our data protection framework.  The same is not true in many other fields, which are governed by statutory instruments made under section 2 of the ECA 1972, rather than primary legislation.

But the DPA is currently to be to understood in the light of EU-derived principles and caselaw.  If we left the EU, and kept the DPA, would those principles and the caselaw have grown domestic roots and continue to shape the interpretation of the DPA?

Another question. To what extent would leaving the EU allow the UK to reconsider what sort of data protection regime it wanted?  Principles of privacy are separately embodied in Article 8 of the ECHR, which will remain enforceable under the Human Rights Act 1998, regardless of the outcome of the  vote on 23rd June.  And if a significant information protection gap were left as a result of the re-shaping of our data protection law post-Brexit, common law or equity might step in.

This leaves out of account questions of what (if any) information protection arrangements the EU might be looking for from the UK in bilateral trade and security arrangements. But that is a political question.

Peter Oldham QC

 

 

Extensions of time

March 4th, 2016 by James Goudie KC in Judicial Control, Liability and Litigation

There is no special rule for public authorities when it comes to applications for an extension of time. The principles applicable derive from the decisions of the Court of Appeal in Mitchell v NGN (2013) EWCA Civ 1537 and Denton v White (2014) EWCA Civ 906.  A Judge must approach an application for relief from sanction in three stages, as follows:-

  1. The first stage is to identify and assess the seriousness or significance of the failure to comply with the rules. The focus should be on whether the breach has been serious or significant. If a Judge concludes that a breach is not serious or significant, then relief will usually be granted and it will usually be unnecessary to spend much time on the second or third stages; but if the Judge decides that the breach is serious or significant, then the second and third stages assume greater importance.
  2. The second stage is to consider why the failure occurred, that is to say whether there is a good reason for it. If there is a good reason for the default, the Court will be likely to decide that relief should be granted. However, even if there is a serious or significant breach and no good reason for the breach, this does not mean that the application for relief will automatically fail. It is necessary in every case to move to the third stage.
  3. The third stage is to evaluate all the circumstances of the case, so as to enable the Court to deal justly with the application. The two factors specifically mentioned in CPR rule 3.9 are of particular importance and should be given particular weight. They are (a) the need for litigation to be conducted efficiently and at proportionate cost, and (b) the need to enforce compliance with Rules, Practice Directions and Court Orders. The Court must, in considering all the circumstances of the case so as to enable it to deal with the application justly, give particular weight to these two important factors. In doing so, it will take account of the seriousness and significance of the breach (which has been assessed at the first stage) and any explanation (which has been considered at the second stage). The more serious or significant the breach the less likely it is that relief will be granted unless there is good reason for it.


In SSHD v Razia Begum (2016) EWCA Civ 122 the Court of Appeal has reaffirmed, at paragraphs 14/15 and 23, that there is no special rule for public law cases.  However, the “importance of the issues to the public at large” can properly be taken into account at the third stage.

 

Unpaid council tax, court costs and lawful expenditure

February 29th, 2016 by Peter Oldham QC in Council Tax and Rates, Judicial Control, Liability and Litigation

On Thursday 25th February, the Divisional Court gave judgment in the case of Rev Paul Nicolson v Grant Thornton.  This was Rev Nicolson’s appeal under the Audit Commission Act 1998 against the refusal of LB Haringey’s auditor to make a declaration of an unlawful item of account or issue a public interest report.

Rev Nicolson is an anti-poverty campaigner. He refused to pay council tax, and when he was taken to the magistrates’ court he lost and was ordered to pay costs of £125. The council’s right to claim costs was given by the Council Tax (Administration and Enforcement) Regulations 1992. Haringey had a standard costs claim of £125 in such cases.  In a prior judicial review claim,  R ota  Nicolson v Tottenham Magistrates [2015] PTSR 1045, it had been held that the magistrates’ order had been unlawful as, at the hearing of the summons, there had been insufficient information for the magistrates to say whether £125 was a reasonable estimation of the costs incurred.

However, when Rev Nicolson also, and separately, objected to the auditors, they decided that the local authority had had sufficient information on which to decide that £125 was a proper charge.  The sum included aggregated costs, both direct and indirect, divided by the number of council tax summonses which Haringey had to deal with per year.   Accordingly the auditors decided that the item of account was lawful.  Rev Nicolson appealed.  The Divisional Court dismissed the appeal.  It declined to say that the auditors’ decision was unlawful, since they had considered the relevant factors,  and had given cogent reasons explaining their view.

Peter Oldham QC

 

 

Legal Aid

January 29th, 2016 by James Goudie KC in Judicial Control, Liability and Litigation

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”.

 

PROPORTIONALITY

January 27th, 2016 by James Goudie KC in Judicial Control, Liability and Litigation

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”.

  1. 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.

  1. 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. …”

 

 

Remedies

December 22nd, 2015 by James Goudie KC in Judicial Control, Liability and Litigation

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.

 

Extensions of Time

December 17th, 2015 by James Goudie KC in Judicial Control, Liability and Litigation

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”.

 

Pension Liability

December 11th, 2015 by James Goudie KC in Judicial Control, Liability and Litigation

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.

 

Judicial Control

November 13th, 2015 by James Goudie KC in Judicial Control, Liability and Litigation

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.

 

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