Adult Education

February 11th, 2019 by James Goudie QC in Local Authority Powers

From August 2019, some functions which relate to adult education, and the associated adult education budget, will be devolved to 6 Mayoral Combined Authorities (“MCAs”), and delegated to the Mayor of London (“MoL”). The Secretary of State for Education (“the SoS”) has entered into a Memorandum of Understanding (“MoU”) with the MCAs, and a separate MoU with the MoL.  Both MoUs relate to functions set out in the Apprenticeships, Skills, Children and Learning Act 2009 (“ASCAL 2009”), and exercised through the Education and Skills Funding Agency (“the ESFA”). In the case of the MoL the (revocable) delegated functions are exercisable by him only and are not capable of further delegation. The functions are to be carried out in accordance with the Greater London Authority Act 1999.

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Ultra Vires

January 23rd, 2019 by James Goudie QC in Local Authority Powers

Local Authorities in Bermuda, such as the capital, Hamilton, do not have a General Power of Competence.  Nonetheless the decision of the Privy Council on 21 January 2019 in Mexico Infrastructure Finance LLC v The Corporation of Hamilton (2019) UKPC 2 is of general interest.  The Privy Council ruled 3-2 that the Corporation had acted beyond its powers, because “municipal” is a word of limitation and the Corporation was not acting for a “municipal purpose”. Read more »


Public Authorities and Trading

January 17th, 2019 by James Goudie QC in Local Authority Powers

In Apt Training and Consultancy Limited v Birmingham & Solihull Mental Health NHS Trust (2019) EWHC 19 (IPEC) the Judge found that the NHS Trust’s use of the Claimant’s sign in relation to educational and training services and related material was use for the purposes of trade mark infringement, and that such use was use “in the course of trade”.

The NHS Trust denied infringement on the basis that it had not used the sign “in the course of trade”, because it was a non-profit making entity, whose primary function was the provision of services to the NHS, rather than commercial activities with a view to economic advantage. This defence failed. The Judge held that, in assessing whether a sign was used “in the course of trade”, the fact that goods or services were offered on a non-profit making basis was not decisive. A non-profit making body could make external, commercial use of a sign in various ways.


Structural and Boundary Changes

December 7th, 2018 by James Goudie QC in Local Authority Powers

The Local Government (Structural and Boundary Changes) (Amendment) Regulations 2018, S.I. 2018/1296, will come into force on 2 January 2019. The Local Government and Public Involvement in Health Act 2007 Part 1 provides for structural and boundary changes in relation to local government areas in England.  These Regulations, made under Section 14 of the 2007 Act, make incidental, consequential, transitional and supplementary provision of general application in relation to the exercise of certain functions for the purposes of, and in consequence of, Orders made by the Secretary of State under Sections 7 and 10 of the 2007 Act.  Part 1 of these Regulations amends Regulations previously made under Section 14 of the 2007 Act.  Part 2 of the Regulations makes provision to specify the dates on which the collection funds and general funds of councils established under a Section 10 Order must be established in accordance with the provisions of the Local Government Finance Act 1988, and modifies relevant provisions of the Local Government Finance Act 1992 to allow those councils, in setting their council tax, to take account of precepts which may be issued by charter trustees which may be established under a Section 10 Order.


Suspension of Employee

November 30th, 2018 by James Goudie QC in Local Authority Powers

In Ardron v Sussex Partnership NHS Foundation Trust (2018) EWHC 3157 (QB) the NHS Trust was proceeding with a disciplinary hearing, alleging gross misconduct, by way of gross negligence.  The Claimant sought an injunction to prevent the hearing.  Jacobs J dismissed the claim.  His holdings included (paragraphs 116-118) that the Trust had a prima facie case that the Claimant’s conduct amounted to a breach of its relationship of trust and confidence with her.  He held that the absence of a sustainable case on breach of trust and confidence was not demonstrated by the fact that the employee was not suspended and continued to work, when specific monitoring measures had been put in place, the allegations against her had not yet been proved, and the outcome of the disciplinary process was not being prejudged.


Pension Increases

November 30th, 2018 by James Goudie QC in Local Authority Powers

The Superannuation Act 1972 confers a general power to establish public sector pension schemes, and make their rules.  However, indexation increases are governed by the Social Security Pensions Act 1975: so held by a Divisional Court in R (BT) v HMT (2018) EWHC 3251 (Admin) at paragraph 156.



November 12th, 2018 by James Goudie QC in Local Authority Powers

The Local Government (Miscellaneous Amendments) (EU Exit) Regulations 2018 amend four statutory instruments in the field of local government finance legislation in consequence of the UK’s exit from the European Union. They amend the definition of a “prescribed educational establishment” in the Council Tax (Discount Disregards) Order 1992 (S.I. 1992/548) so that those institutions in the UK continue to be included in this definition after the UK leaves the EU; remove the definition of “prescribed investment” from the Local Authorities (Funds) (England) Regulations 1992 (S.I. 1992/2428), amend the Local Authorities (Contracting Out of Investment Functions) Order 1996 (S.I. 1996/1883) to remove references to qualifications from other member states and amend the definition of “money market fund” in the Local Authorities (Capital Finance and Accounting) (England) Regulations 2003 (S.I. 2003/3146).


Local Government Reorganisation

August 14th, 2018 by James Goudie QC in Local Authority Powers

R ( Christchurch BC ) v SOS for HCLG ( 2018 ) EWHC 2126 ( Admin ) concerned a challenge by the Council to the decision of the SOS to use his power in section 15 of the Cities and Local Government Devolution Act 2016 to lay Regulations before Parliament to amend the Local Government and Public Involvement in Health Act 2007 to enable a proposal to reorganise local Government in Dorset which would abolish all the existing Dorset authorities. The challenge failed. The Council argued that the Regulations were ultra vires and unlawful because they were retrospective. The proposal was in existence before the Regulations came into effect. Sir Ross Cranston rejected this argument. He held that there was no vice of retrospectively and no unfairness and that in any event the Regulations are procedural in character and any presumption against retrospectively does not apply. He also found that the claim had not been brought promptly and that there was no justification for an extension of time.



June 7th, 2018 by James Goudie QC in Local Authority Powers

In R (Palestine Solidarity Campaign Ltd) v SoS for CLG (2018) EWCA Civ 1284 the Court of Appeal allowed the SoS’s appeal against a declaration at (2017) EWHC 1502 (Admin) that part of his statutory Guidance relating to the Investment Strategy of local authorities administering local government pension schemes was unlawful.  The Court of Appeal ruled that the SoS was within the broad discretion afforded to him by the Public Service Pensions Act 2013 in issuing Guidance on non-financial considerations, including those of wider public interest, such as foreign and defence policy.  Nor was the relevant passage in the Guidance contrary to Article 18 of Directive 2003/41/EC on the activities and supervision of institutions for occupational retirement provision (“the IORP Directive”), which it was common ground applies in relation to the LGPS.  The Guidance included a summary requirement that administering authorities “should not pursue policies that are contrary to UK foreign policy or UK defence policy”, with a fuller statement in the accompanying text that “using pension policies to pursue boycotts, divestment and sanctions against foreign nations and UK defence industries are [sic] inappropriate, other than where formal legal sanctions, embargoes and restrictions have been put in place by the Government”. Read more »


Public Health

November 11th, 2016 by James Goudie QC in Local Authority Powers

The appeal has been dismissed in National Aids Trust v NHS Commissioning Board and the Local Government Association [2016] EWCA Civ 1100.  NHS England does have the power to commission an anti-retroviral drug for use on a preventative basis for those at high risk of contracting HIV.  The question at the root of the appeal was out of whose budget the cost of medication is to be paid: the budget of NHS England; or that of local authorities.  The answer is NHS England.  This is because it is not a public health function for the purposes of the Health and Social Care Act 2012.  However, it is not possible to draw the dividing line between public health and non-public functions neatly along the lines between the prevention of ill-health and its treatment. There is no simple criterion for defining the boundaries of public health functions in a borderline case.  However, in circumstances where public health functions are not defined and the boundary line between local authority public health functions and NHS non-public-health functions is not clearly drawn in the primary legislation, it is legitimate to refer to where it is drawn in the related secondary legislation.