Residence Requirement

April 2nd, 2020 by James Goudie QC in Local Authority Powers

A residence requirement with respect to bearing of school transport costs may be unlawfully discriminatory, as in Case C-830/18, Landkreis Sudliche Weinstrasse v PF.



March 27th, 2020 by James Goudie QC in Local Authority Powers

Non-compliance with procurement legislation does not necessarily affect power to enter into contract : Wallis Trading Inc v Air Tanzania (2020) EWHC 339 (Comm) at para 107 per Butcher J.


Arrangements Between Authorities

March 25th, 2020 by James Goudie QC in Local Authority Powers

Centralised arrangements between local authorities ( 4 London Boroughs ) for the provision of secure accommodation for children at risk of being detained in police custody have been held to be lawful in R (AR) b Waltham Forest LBC (2020) EWHC 622 (Admin) (DC). There was no systemic breach of the statutory duty under Section 21(2)(b) of the Children Act 1989. Nor was there any breach of the sufficiency duty under Section 22G. The arrangements were rational and constituted a reasonable system.

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Coronavirus Bill, LAs and the right to emergency volunteering leave

March 21st, 2020 by Peter Oldham QC in General, Local Authority Powers

Cl 7 of the Coronavirus Bill gives effect to Schedule 6 –  provisions about a new right to emergency volunteering leave (“EVL”).

Under Schedule 6, a worker is entitled to be absent from work for the period specified in an emergency volunteering certificate (“EVC”) if, no later than 3 days before the first day of the period specified in the EVC, the worker gives notice to their employer of their intention to be absent for the period stated in the EVC.   The EVC may specify two, three or four consecutive weeks within a single volunteering period.  A volunteering period is the period of 16 weeks after the right under the Bill comes into force and each period of 16 weeks thereafter, unless shortened by the Secretary of State in regulations.  A worker may take EVL only once in the same volunteering period.  If a worker takes EVL, they have the right to return to their job, and not to suffer detriment as a result.  Dismissal by reason of EVL is automatically unfair.  Under cl 8 SoS must establish a scheme to compensate volunteers for lost income and expenses incurred.

LAs are given an important role.  The EVC is a document issued by “an appropriate authority”, a category which includes the Secretary of State, the NHS Commissioning Board, and local authorities – county councils, district councils where there is no county council, London boroughs and the City.

The EVC certifies that the worker has been approved by the appropriate authority as an emergency volunteer in health or social care.

The Government’s document “Coronavirus Bill – Summary of Impacts” tells us what the Government’s expectation of LAs is likely to be. It says:-

“Impact on Local Authorities – the policy requires LAs across the UK to identify volunteer social care opportunities and to match these opportunities to volunteers coming forward. This may add additional burdens to the work that LAs are doing in response to the outbreak. HM Government will provide detailed guidance for LAs to follow and will design a simple system in collaboration with them that is easy to administer. Additional funding may also be required.”

Peter Oldham QC


Coronavirus Bill

March 19th, 2020 by Peter Oldham QC in Local Authority Powers

As most relevant to English local authorities’ powers and duties, the Bill provides for the following, amongst other, measures – with a great deal of further detail:-

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Some thoughts on Local Authorities and Coronavirus

March 18th, 2020 by Peter Oldham QC in Decision making and Contracts, Human Rights and Public Sector Equality Duty, Judicial Control, Liability and Litigation, Local Authority Powers, Social Care

This note sets out some information and personal views about local authority decision making in the light of the current crisis.

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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 »



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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