Necessity

March 5th, 2020 by James Goudie QC in Local Authority Powers

The word “necessary” applies in connection with some local authority duties and powers. An example is Section 37(1) of the Children and Families Act 2014. This provides that where, in the light of an Education, Health and Care Plan (“EHC Plan”) assessment, it is “necessary” for special educational provision to be made for a child or young person in accordance with an EHC Plan, the local authority must secure that an EHC Plan is prepared for the child or young person, and, once the Plan has been prepared, it must maintain the Plan.

This provision has been considered in Nottinghamshire County Council v SF and GD (2020) EWCA Civ 226. The Court of Appeal says (paragraph 20) that “necessity” is “not a concept that is to be over-defined”. “Necessary” has a spectrum of meanings, somewhere between indispensable and useful: paragraphs 21 and 27. What is “necessary” may involve a value judgment: paragraphs 22 and 27. What is “necessary” is a matter to be deduced rather than defined: paragraphs 23 and 27. Its determination will vary according to the circumstances of a particular case and may well involve a considerable degree of judgment: ibid. “Necessary” is a word in common usage, entailing the exercise of an evaluative judgment: paragraph 38.

 

LGPS Exit Payments

February 28th, 2020 by James Goudie QC in Local Authority Powers

The Local Government Pension Scheme (Amendment) Regulations 2020, S.I. 2020/179, provide that LGPS “administering authorities” are to have a discretion to determine the amount of “exit credit: which should be paid to a “scheme employer” leaving the LGPS.

 

Investment in commercial property

February 14th, 2020 by James Goudie QC in Local Authority Powers

The National Audit Office has produced an 82 page Report on “Local Authority Investment in Commercial Property”. The Report makes Recommendations for MHCLG, HM Treasury and CIPFA. The Report’s “Key Findings” include with respect to risks and risk management and the Government’s “stewardship role”. The Report’s Conclusion on Value for Money are summarised as follows:-

“26.     The acquisition of commercial property can enable authorities to generate income in the context of financial pressure, while also supporting regeneration. However, the scale of investment of public funds in this activity in the last three years, the concentration of this activity in a relatively small group of authorities, and the use of borrowing to finance such investments is striking. The benefits from this investment therefore must be considered against the potential financial sustainability and value‑for‑money risks that have emerged. Read more »

 

Fees

December 12th, 2019 by James Goudie QC in Local Authority Powers

The fixing by local authorities of fees for taxis and minicabs has been considered by the Court of Appeal in R (Rehman) v Wakefield Council and LGA (2019) EWCA Civ 2166.  The charging power is Section 70 of the Local Government (Miscellaneous Provisions) Act 1976 (“the 1976 Act”). The Council’s case was not accepted that the costs of enforcing drivers’ conduct fell within Section 70 of the Act.  The Court of Appeal said that it was clear from the wording of Section 70 in the context of the Act that the cost of monitoring and enforcing driver conduct could not be taken into account in fixing the vehicle licence fee.  Part II of the Act provided for distinct and detailed regimes for (a) vehicle licences for taxis and private hire vehicles; (b) drivers’ licences; and (c) operators’ licences.  Each type of licence was governed by a comprehensive and self-contained statutory regime which addressed grant, terms, suspension, revocation and fee. There was no cross-referencing in relation to any of those matters. Thus, the notion that the fee for one type of licence could reflect the costs involved in another was entirely contrary to the structure of the Act. The “control and supervision” referred to in Section 70 was control and supervision by the local authority, not the driver.  It would be a strained and artificial interpretation of those words to claim that the local authority controlled the vehicle by monitoring and enforcing the driver’s behaviour. Moreover, the words in Section 70 could not have been intended by Parliament to authorise something entirely alien to the structure of Part II of the Act in view of its comprehensive self-contained regime for each category of licence. Nor could the proper interpretation of the legislation governing a licensing regime be affected by resource considerations.

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Those in the Locality

August 22nd, 2019 by James Goudie QC in Local Authority Powers

DULGHERIU v EALING LBC (2019) EWCA Civ 1490 concerned the validity of a Public Spaces Protection Order ( “ PSPO “ ) made by the Council under Section 59 of the Anti-Social Behaviour Crime and Policing Act 2014 prohibiting anti-abortion protests in the immediate vicinity of a family planning centre. The PSPO was upheld.

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Transfers of Governance

August 1st, 2019 by James Goudie QC in Local Authority Powers

The Home Secretary decided to approve proposals to transfer the governance of Fire and Rescue Services (“FRSs”) to the Police and Crime Commissioner (“PCC”) for the area. A challenge failed before Garnham J in R (Shropshire & Wrekin Fire Authority, Hereford and Worcester Fire Authority, and Cambridgeshire and Peterborough Authority) v SSHD (2019) EWHC 1967 (Admin).  The question of substance was whether the proposals were “in the interests of economy, efficiency and effectiveness” (“the 3Es”) within Section 4A(5) of the Fire and Rescue Services Act 2004 (“the 2004 Act”) as inserted by the Policing and Crime Act 2017.

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Transfers of Governance

August 1st, 2019 by James Goudie QC in Local Authority Powers

The Home Secretary decided to approve proposals to transfer the governance of Fire and Rescue Services (“FRSs”) to the Police and Crime Commissioner (“PCC”) for the area. A challenge failed before Garnham J in R (Shropshire & Wrekin Fire Authority, Hereford and Worcester Fire Authority, and Cambridgeshire and Peterborough Authority) v SSHD (2019) EWHC 1967 (Admin).  The question of substance was whether the proposals were “in the interests of economy, efficiency and effectiveness” (“the 3Es”) within Section 4A(5) of the Fire and Rescue Services Act 2004 (“the 2004 Act”) as inserted by the Policing and Crime Act 2017.

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Obtaining Injunction

June 20th, 2019 by James Goudie QC in Local Authority Powers

Birmingham City Council v Afsar and Others (2019) EWHC 1560 (QB) is a case  about a protest which has been carried on outside a primary school. Warby J granted interim injunctions, on the basis that the Council was likely to succeed at trial in showing that restraint on the way that protests were being conducted was justified.

The protest involved parents of pupils at the school, relatives of theirs, and other individuals opposed to some of the ways the school is teaching its pupils. It had been going on for a number of weeks. The focus of the protest has been the teaching of matters relating to sexual behaviour, sexuality, and gender.

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Community Governance Review

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

R (Britwell Parish Council) v Slough Borough Council (2019) EWHC 998 (Admin) is two claims for judicial review by two parish councils challenging the Slough Borough Council (Reorganisation of Community Governance) Order 2019 (“the Order”). That Order provides for the abolition of the parishes of Britwell, and Wexham Court and the winding up and dissolution of each of the two parish councils for those areas. In essence, the two claimants, Britwell Parish Council and Wexham Court Parish Council, contend that the defendant, Slough Borough Council, which made the Order failed to have regard to relevant guidance. That required that there must, amongst other things, be clear and sustained local support for abolition of a parish council. The claimants contend that all the material before the defendant, including the consultation responses, responses from the parish councils and the results of local polls, showed that the majority of electors in the two parishes wished to retain, not abolish, the parish council. In those circumstances they contend that there was not clear and sustained local support for the abolition of the parish councils as required by the Guidance. They further contend that the defendant failed to have regard to the claimants’ role as representative democratically elected bodies and that the decision was irrational. Read more »

 

Restricting exit payments

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

On 10 April 2019 HM Treasury has issued a Consultation, for response by 3 July 2019, on draft “Restriction of Public Sector Exit Payments Regulations”, pursuant to the Small Business Enterprise and Employment Act 2015, as amended by the Enterprise Act 2016.