Should Birmingham City Council have been granted an Injunction, with a power of arrest attached, restraining an individual from entering a prescribed area of the City, save for certain limited purposes, and from associating with 19 named persons or gathering with them in any public place within the City, and ordering him to undertake prescribed activities?  That was the issue that went from the Birmingham County Court to the Court of Appeal in Birmingham City Council v James [2013] EWCA Civ 552, in which Judgment was given on 17 May 2013.

The factual background was as follows.  For some time Birmingham and some other major cities have suffered from the activities of urban street gangs composed of large numbers of young men. In most cases the gangs are identified by the particular neighbourhoods in which they are based and which they regard as their own territory. Street gangs are responsible for a large amount of crime, particularly violent crime and crime involving drugs and the use of firearms. Violence of a very serious kind, including the use of automatic weapons, is liable to break out when one gang invades the territory of another or when one gang takes reprisals for actual or perceived slights by another.

The legal background is as follows. In the past the Council has attempted to make use of its powers under Section 222 of the Local Government Act 1972 in order to disrupt the activities of gangs by obtaining Injunctions restraining individual gang members from entering parts of the city and associating with other gang members. However, in Birmingham City Council v Shafi [2008] EWCA Civ 1186, [2009] 1 WLR 1961 the Court of Appeal held that Section 222 did not give local authorities substantive powers but was merely procedural in nature, allowing them to exercise powers formerly vested only in the Attorney General. The Court held that although it is possible in some circumstances to obtain an Injunction to prevent a breach of the criminal law, the appropriate way to obtain relief of the kind sought in that case was for the local authority to apply for an ASBO.  The provisions in Part 4 of the Policing and Crime Act 2009 were enacted in response to the Court’s decision in Birmingham City Council v Shafi. Section 34 gives the Court power, on the application of chief constables or local authorities, to grant Injunctions prohibiting the persons to whom they are addressed from acting in ways that would promote gang-related violence or requiring them to act in certain ways, including undertaking prescribed activities.

The Court of Appeal upheld the Injunction.

Moore-Bick LJ said:-

“11.       I do not think it helpful to introduce the concept of mens rea into section 34(2). Although the section is clearly directed primarily to deliberate conduct amounting to participation in, or encouragement of, gang-related violence, it is possible that in some, no doubt unusual, cases it could be held to apply to certain kinds of conduct which could be said to amount to inadvertent encouragement. However, the question does not arise in this case and it is neither necessary nor desirable to explore precisely where the boundary lies.  …”

“13.       … Following the decision of this court in Birmingham City Council v Shafi, in which the view was expressed that an ASBO, rather than an injunction in support of the criminal law, was the appropriate means by which to restrain the defendant from taking part in gang-related violence, Parliament enacted Part 4 of the Policing and Crime Act 2009, which makes specific provision for the granting of injunctions for that purpose. There can be no doubt, therefore, that Part 4 represents Parliament’s considered response to the particular problem of gang-related violence. Although some kinds of gang activity may be classified under the generic description of anti-social behaviour, section 1(1) of the Crime and Disorder Act 1998 was not enacted with a view to dealing specifically with the consequences of gang culture. It is much broader in nature and is apt to apply to anti-social behaviour of all kinds. Section 34, as its terms indicate, is aimed at a particular kind of mischief and the choice of the civil standard of proof appears to have been a deliberate response to the view expressed by the majority in Birmingham City Council v Shafi about the appropriate standard of proof in proceedings for an injunction of the kind that the Council was seeking. In those circumstances I do not think it can possibly have been the intention of Parliament that when considering whether it is necessary to grant a gang injunction the court should ask itself whether an ASBO would provide an adequate remedy. If the condition in subsection (2) is satisfied, it is sufficient that the court consider whether it is necessary to impose a restriction on the respondent’s activities to achieve one or other of the purposes set out in subsection (3). The judge held that if the defendant’s conduct fell within both pieces of legislation the Council could make an application under whichever it considered the more convenient or appropriate. In principle I think that is right, but in any event I am unable to accept that an application under section 34 was inappropriate. …”

The Local Authority (Public Health, Health and Wellbeing Boards and Health Scrutiny) Regulations 2013, Statutory Instrument 2013 No. 218 (“the Regulations”) make provision in relation to Health and Wellbeing Boards established under Section 194 of the Health and Social Care Act 2012 (“the 2012 Act”) (Part 2), local authority public health functions (Part 3) and review and scrutiny of the local health service by local authorities (Part 4).

Part 2 modifies provisions in primary legislation relating to a Committee appointed under Section 102 of the Local Government Act 1972 (“the 1972 Act”) in so far as those provisions relate to Health and Wellbeing Boards and provides that certain  provisions do not apply to Health and Wellbeing Boards. The modification and disapplication provisions also apply to Sub-Committees of Health and Wellbeing Boards and Joint Sub-Committees of such Boards.

Part 3 makes provision for the weighing and measuring of children in attendance at schools under arrangements provided for by local authorities.

Part 4 makes provision in relation to the health scrutiny functions of local authorities. Section 244 of the National Health Service Act 2006 confers a power to make regulations on review and scrutiny of matters relating to the Health Service (“health scrutiny”) by local authorities. The 2012 Act made various changes to the system of health scrutiny. This included provision for health scrutiny functions to be conferred on local authorities directly with powers to enable those authorities to make various arrangements for the discharge of those functions, including discharge by Overview and Scrutiny Committees. Part 4 makes provision accordingly.

The Regulations also provide for exemptions from the Community Right to Challenge under the Localism Act 2011 for certain public health services to be provided by local authorities, two of which are time-limited exemptions.

This Bill, introduced by the Welsh Government in the Welsh Assembly on 26 November 2012, is intended to reform the organisation and functions of the Local Government Boundary Commission for Wales.  The Bill also contains provisions which would amend the Local Government (Wales) Measure 2011 in relation to the responsibilities of the Independent Remuneration Panel for Wales and the structure of local authority audit committees.  The Bill includes provisions concerning the public’s access to information concerning town and community councils.  The Bill amends Part III of the Local Government Act 2000 to facilitate the creation by local authorities of joint standards committees.  The Bill contains a provision concerning the role of the Chairman or Mayor of principal councils.

Part 2 of the Bill relates to the Local Democracy and Boundary Commission for Wales, as it will be called, implementing proposals in the Mathias Report.  Part 3 describes the types of review of local government areas and arrangements that may be conducted and details the procedure which is to be followed in conducting a review. It also deals with the manner in which any recommendations made as a result of the review are to be implemented. Part 4 relates to reviews by the Commission of qualifying public bodies.

Part 5 of the Bill makes other changes to local government.  Section 51 amends the Local Government Act 1972 so as to allow principal councils to appoint a “presiding member”. A “presiding member” would be able to carry out any of the functions of a council chairman so decided by the council. In particular this provision will enable councils who wish to separate the ceremonial and civic functions associated with the council chairman or mayor from those of presiding over meetings of the council.  No member of the council’s executive may be the presiding member. The term of appointment is a matter for the principal council subject to the limitation that it cannot extend past the next council election.  A council may also appoint a deputy presiding member who, again, must not be a member of the executive.

Section 52 prevents a local authority from promoting a local Bill which concerns a local government area or the political structure of a local authority.

Section 53 requires a community council to publish certain information electronically including details of the council’s membership and business and make provision for members of the public to contact the council or its clerk electronically. The requirement to make information available is subject to normal rules on confidentiality.  A community council must have regard to any guidance issued by the Welsh Ministers in relation to this matter.

Section 54 requires community councils to publish public notices electronically also. Section 55 requires a community council to publish agendas and public reports for forthcoming meetings electronically.

Section 56 amends the Local Government (Wales) Measure 2011 so as to broaden the scope of a democratic services committee so that, if requested by the authority, they can review anything connected with the support and advice made available to elected members and their terms and conditions.

Section 57 amends the Local Government (Wales) Measure 2011 so as to provide that an audit committee of a local authority is one to which the rules of political balance (which are set out in section 15 of the Local Government and Housing Act 1989) apply.

Section 58 enables the Independent Remuneration Panel for Wales, when considering entitlement to a particular payment, to set a limit on the number of councillors who may receive it. This enhances the Panel’s existing power to set a limit on the proportion of councillors who may receive a particular payment.

Section 59 provides that the Welsh Ministers may add to the public bodies whose remuneration should be considered by the Panel. Any such additional body must be one which Welsh Ministers have responsibility for and which includes members of local authorities in its membership. This power is to be carried out by order of Welsh Ministers.

Section 60 changes the date by which the Panel must produce their annual report from 31st December to the 28th February. This has the effect of reducing the time between publication of a report and its implementation the following April. The provisions will also enable the Panel to decide when its reports shall come into force and to backdate its decisions for up to three months.  Section 61 provides that consultation times on draft supplementary reports, currently set at 8 weeks, would be varied to between four and eight weeks.

Section 62 provides that the Panel may require local authorities to publish details of any income received by their members from specified public bodies.

Section 63 amends section 53 of the Local Government Act 2000 so that one or more relevant authorities (ie a county or county borough council, national park authority or a fire and rescue authority in Wales) may establish a joint standards committee. An authority considering establishing a joint committee must have regard to any guidance issued by the Welsh Ministers.  Section 63 also amends section 54 of the 2000 Act to provide that a standards committee must, in exercising any of its functions, have regard to any relevant guidance issued by the Welsh Ministers.

Clause 6 of the Growth and Infrastructure Bill removes an anomaly whereby currently general consents for the disposal of land by local authorities can be given under LGA 1972 for less than best consideration but cannot be given under TCPA 1990 where land is held for planning. Clause 6 amends s233 of TCPA 1990 (disposal by local authorities of land held for planning purposes) by providing for the SoS to grant general consent for disposals as well as specific consent upon receipt of an application from a local authority. Subsection (2) enables the SoS to give consent generally for the disposal of land at less than the best consideration reasonably obtainable. Such consent may be granted by reference to any particular disposal or disposals, or in relation to a particular class of disposals; local authorities generally, or local authorities of a particular class, or to any particular local authority or authorities, and either unconditionally or subject to conditions (either generally or in relation to any particular disposal or disposals or class of disposals). Subsection (3) applies the protection for purchasers in respect of certain land transactions contained in s128(2) of LGA 1972 to all purchasers of land disposed of by local authorities under s233 of TCPA 1990. At present, s128(2) applies to some purchases under s233 but not to all purchases under s233. Such transactions will not be void where a local authority has failed to obtain the relevant consent and a prospective purchaser will not have to enquire whether the disposing local authority has obtained the necessary consent.

The Sustainable Communities Regulations 2012, SI 2012/1523, come into force on 26 July 2012, in England only.  They are the first Regulations to be made under the Sustainable Communities Act 2007, as amended in 2010.  The 2007 Act provides a channel whereby local people can ask Central Government, via their local authority, to take action which they consider will help improve the economic, social or environmental well-being of their area.  The Act provides for the SoS to invite local authorities to consult locally and to make proposals for enhancing local sustainability and well-being.  The main elements of the Regulations are that: (1) local authorities must, before making a proposal, to consult and try to reach agreement about the proposal with representatives of interested local persons, and have regard to guidance issued by the SoS; (2) the SoS must consider each proposal, and publish the decision, giving reasons, and the action to be taken if the proposal is to be implemented; (3) a “Selector” will be appointed who will consider the resubmission of proposals from local authorities whose proposals have been rejected by the SoS: the Selector must decide whether to submit them to the SoS for reconsideration, giving reasons, and must appoint an Advisory Panel to assist it in deciding whether these proposals should be submitted for reconsideration; and (4) the SoS must publish proposals submitted by the Selector with its reasons, and and must then consult and try to reach agreement with the Selector, before publishing the subsequent decision and giving reasons, and specifying the action to be taken if the proposal is to be implemented.

In R (Siwak) v Newham LBC (2012) EWHC 1520 (Admin) Cranston J held that the local authority had not failed to comply with the PSED under s149 of Equality Act 2010.  Policies under formulation were the subject of equality analysis.  It was not for the Court to micro-manage the process.  Consultation before proposals were formulated would have been premature.

Barry survives

In KM, the Supreme Court was expected to reconsider the House of Lords’ decision in R v Gloucestershire CC, ex p Barry [1997] AC 584.  In Barry, the House of Lords found by a bare majority, bowing perhaps to pragmatism rather than a strict interpretation of the statutory language, that local authorities may have regard to their own resources when assessing the level of services which are to be provided to individuals under section 2(1) of the Chronically Sick and Disabled Persons Act 1970.

Last year, in R (McDonald) v Royal Borough of Kensington and Chelsea [2011] UKSC 33, [2011] PTSR 1266, Lady Hale cast doubt on Barry and encouraged litigants to argue that it should be overruled.  The Supreme Court in KM subsequently gave permission for a ground of appeal that Barry had been wrongly decided.  However, when the KM hearing commenced it became apparent that the Barry issue was irrelevant (Lord Wilson at [7], Lady Hale at [41]).  The Court was therefore careful to say nothing about whether Barry was right or wrong.

KM:  direct payment amount was rational

The challenge was to the local authority’s decision to make direct payments of £85,000 per annum to KM, who is profoundly disabled.  The local authority had calculated that sum by applying its “Resource Allocation System” (“RAS”), along with its “Upper Banding Calculator”, which it used to calculate additional amounts in severe cases.  Two grounds were raised, namely, irrationality and a failure to give reasons.

Lord Wilson, with whom all six of the other Justices agreed, gave the leading speech.  At [15], he broke down the analysis required of a local authority by section 2 of the 1970 Act into the following three questions:

(1)     what are the needs of the disabled person;

(2)     in order to meet these needs is it necessary for the authority to make arrangements for the provision of any of the listed services;

(3)     if so, what are the nature and extent of the services for which it is necessary for the local authority to make arrangements?

These stages reflect the Secretary of State’s guidance (“Prioritising need in the context of Putting People First”, February 2010), which splits needs into “presenting needs” (identified by question (1) above) and “eligible needs” (identified by question (2) above) [16-18].  Once a person’s needs are deemed eligible, the local authority is under an absolute duty to meet them, and cannot refuse to do so on account of limited resources [19].

Direct payments under the Community Care, Services for Carers and Children’s Services (Direct Payments) (England) Regulations 2009 (SI 2009/1887) give rise to a fourth question, namely [23]:

(4)     what is the reasonable cost of securing provision of the services for which it is necessary for the authority to make arrangements?

Lord Wilson accepted that, in answering that question, it would be unduly laborious for a local authority to start by costing each service for every disabled person [24].  He therefore approved the general use of RASs as a lawful tool to provide a “ball-park” figure, subject to adjustment [26].  He commented that, since RASs generally work by allocating points to eligible needs and then ascribing a cost to each point, there must be a “realistic nexus both between needs and points and between points and costs” [25].  He then said that, once the indicative sum has been identified, it “is crucial [that] the requisite services in the particular case should be costed in a reasonable degree of detail so that a judgement can be made whether the indicative sum is too high, too low or about right”, this exercise usually being labelled the “support plan” [28].  In this respect, Lord Wilson at [37] approved guidance from R (Savva) v Royal Borough of Kensington [2010] EWCA Civ 1209 that adequate reasons can be achieved with “reasonable brevity”, often by listing the required services, and the suggested timings and hourly costs.

On the particular facts of KM’s case, in which the local authority had found that all of his “presenting needs” were “eligible needs” which it was under a duty to meet (hence the irrelevance of the Barry issue), Lord Wilson found that the local authority’s use of its RAS was rational, and that any flaw in computation was likely to have been in KM’s favour [38].  He criticised the authority for failing to make a more detailed presentation of its assessment of the costs of KM’s necessary services.  However, in the light of the authority’s amplification of its reasoning during the subsequent litigation, he said that it would be a pointless exercise of discretion to quash the decision so that his entitlement might be considered again, perhaps even to his disadvantage [38].

Comment

Because Barry was not reconsidered, the impact of KM on the law is rather limited.  Nonetheless, it contains useful confirmation, following Savva, that RAS-calculated payments must be accompanied by some explanation of the services which the authority considers to be covered by the payments.

RASs are often criticised for being opaque:  they rely on algorithms which are not revealed to service users; and they translate an individual’s needs into a budget, without identifying the costs of the particular services required to meet those needs.  This shortcoming is compounded by the fact that, where an authority provides or commissions services, it is relatively clear whether or not it is meeting eligible needs; but where it is providing money to purchase services, it is much less clear whether eligible needs are being met.  Service-users sometimes complain that they are offered explanations for personal budgets which are no less illuminating than being told, “Computer says no”.  Indeed, Lord Wilson agreed that “a local authority’s failure to meet eligible needs may prove to be far less visible in circumstances in which it has provided the service-user with a global sum of money than in those in which it has provided him with services in kind” [36].  This is why it is important that RAS-calculated budgets are accompanied by an explanation of the services which should be covered by the budget.

The High Court has decided that a local authority applied too high a threshold when deciding that an applicant for accommodation under section 21 of the National Assistance Act 1948 was not “in need of care and attention”.  Moreover, it held that the authority’s refusal to provide section 21 accommodation breached  the applicant’s rights under Article 3 of the ECHR, and was a disproportionate interference with his rights under Article 8 of the ECHR.

The Claimant was a Portugese national who was terminally ill with severe AIDS.  He also suffered from depression and skin cancer.  His life expectancy was less than a year.  Upon carrying out a needs assessment, the authority nonetheless concluded that he was independent in all aspects of daily living and in areas where he experienced some difficulty, he could identify solutions.  It therefore determined that he did not qualify for support under section 21.  It also considered that non-provision of support would not breach his human rights, since he could return to Portugal and receive care services there.

Section 21

Lang J found that the authority’s conclusion that he was not “in need of care and attention”, and therefore did not fulfill the criteria in s.21(1)(a), was irrational (paragraphs 62, 67).  She referred to the decision of the House of Lords in R (M) v Slough BC [2008] UKHL 52, [2008] 1 WLR 1808 that the threshold for fulfillment of the criteria in s.21(1)(a) is “relatively low”; “’in need of’ means more than merely ‘want’ but it falls far short of ‘cannot survive without’” (at paragraph 55 of M per Lord Neuberger).

·         She found that the authority had erred by finding it a pre-requisite of eligibility under s.21(1)(a) that the person was “incapable” of performing a domestic task himself.  Someone might be eligible under s.21(1)(a) even if he simply has “greatdifficulty” performing domestic tasks himself (paragraph 65).

·         She rejected the authority’s argument based on fluctuation of the Claimant’s needs and the assertion that, when his needs were assessed, he was not in need of care and attention.  She stated:  “A fluctuating need does not necessarily take a person outside the scope of s.21(1)(a)…  [I]t will be a question of fact in each case whether a person’s condition is such that he should be treated as ‘in need of care and attention’ even though the extent of his need for care and assistance fluctuates from time to time.”  In the Claimant’s case, his ongoing and serious symptoms meant that the authority’s conclusion was irrational, albeit his needs did fluctuate (paragraphs 66 to 67).

·         The authority’s use of Fair Access to Care Services criteria (criteria used for deciding on the provision of discretionary community care services) was inappropriate for assessing whether the Claimant was eligible under section 21(1)(a) (paragraph 68).

Human rights:  standard of review

Pursuant to Schedule 3 of the National Asylum and Immigration Act 2002, the Claimant’s immigration status rendered him ineligible for support or assistance under section 21 save insofar as such support or assistance was necessary to avoid a breach of his Convention rights.  Lang J rejected a submission by the authority that, in assessing whether there had been a breach of the Claimant’s human rights, the “traditional judicial review” standard of review applied; rather, it was for the Court to reach its own conclusion as to whether there had been a breach of the Claimant’s human rights, and for this purpose the Court was entitled to take into account evidence relating to the Claimant’s current medical condition, post-dating the authority’s decision (paragraphs 74 to 85).

Article 3

Lang J concluded that sending the Claimant to an undignified and distressing end in Portugal — the likely practical result of refusing him care services — would amount to “inhuman treatment”, so breach his Article 3 rights.  A decision to remove an ill person to another country where he will receive inferior medical treatment may breach Article 3 only in “very exceptional cases” (N v UK App. No. 26565/05, ECtHR).  Following D v UK (1997) 24 EHRR, Lang J held that this was a very exceptional case, because the Claimant was at the end of his life (paragraph 116); and, even though Portugal has a health and welfare system, the practical reality was that returning him to Portugal would have led to an undignified and distressing death, facing delay and difficulty in obtaining accommodation and benefits, and parted from his existing support network of friends and healthcare professionals (paragraphs 117, 122).

Article 8

It was common ground that refusal of assistance, which in practice meant that the Claimant would have to return to Portugal, would interfere with the Claimant’s Article 8 private life in the UK.  Bearing in mind the relatively small cost saving to be gained from returning the Claimant to Portugal (the cost of caring for him in the UK was limited by his short life expectancy, and returning him to Portugal would itself involve various costs to the authority), Lang J found that the interference was not justified (paragraphs 136 to 141).

In R (Greenwich Community Law Centre) v Greenwich LBC [2012] EWCA Civ 496 the Court of Appeal held that the Council had had “due regard to the PSED when making changes to its funding of community legal advice services”.  At para 30 Elias LJ said:

“I would emphasise the need for the court to ask whether as a matter of substance there has been compliance; it is not a tick box exercise.  At the same time the courts must ensure that they do not micro-manage the exercise. Furthermore,, … it is only if a characteristic or combination of characteristics is likely to arise in the exercise of the public function that they need be taken into consideration. I would only add the qualification that there may be cases where that possibility exists in which case there may be a need for further investigation before that characteristic can be ignored. …”

At para 35 Elias LJ said:

“The purpose of the duty is to require consideration of equality implications at the time policy is drafted. The fact that it is a continuing duty does not mean that there has to be further detailed consideration when the general framework is made concrete, or whenever there are minor changes of detail. It would make administration intolerable and grossly inefficient if every aspect of policy left to officers’ discretion had automatically to be returned for further consideration of the equality implications.”

Legitimate Expectation

On whether there is a substantive legitimate expectation on the basis of a representation made by a public authority, see R (Godfrey) v Southwark LBC [2012] EWCA Civ 500.  Pill LJ said:

“51.      A rigorous standard is to be applied when a substantive legitimate expectation is claimed on the basis of a representation or promise by a public authority. The duty of public authorities to exercise powers in the public interest must be kept in mind. Only when, in the court’s view, to fail to give effect to the promise would be so unfair as to amount to an abuse of power, should it override other considerations …

52.       While the approach to legitimate expectation must be fact sensitive, … an earlier approach of the local planning authority to an issue, even if amounting to a planning policy, cannot have primacy over the statutory duty of the council to assess the current situation.”