In R (C, T, M and U) v Southwark LBC (2016) EWCA Civ 707 the claimants challenged the lawfulness of the accommodation and the level of financial support provided by Southwark Council to a family who have no right of recourse to public funds.  Three issues were considered by the Court of Appeal: (i) Whether the Council had an unlawful policy or practice of setting financial support to those seeking assistance under Section 17 of the Children Act 1989 (“CA 1989”) at the level of child benefit in the circumstance that they otherwise had no right of recourse to public funds; (ii) Whether the Council had an unlawful policy or practice of setting financial support to those seeking assistance under Section 17 CA 1989 at the level of payments which would have been made to asylum seekers or failed asylum seekers by the Secretary of State under Sections 4 and 95 of the Immigration and Asylum Act 1999 (“IAA 1999) in the circumstance that they otherwise had no recourse to public funds; and (iii) Whether the Council breached the appellants’ Article 8 ECHR rights because it provided them with financial support at a level less than that which it knew was necessary to prevent breach and, if so, whether the appellants are entitled to damages in respect of the breach.

The Court of Appeal observed:-

“12.It is settled law that the section 17 scheme does not create a specific or mandatory duty owed to an individual child. It is a target duty which creates a discretion in a local authority to make a decision to meet an individual child’s assessed need. The decision may be influenced by factors other than the individual child’s welfare and may include the resources of the local authority, other provision that has been made for the child and the needs of other children (see, for example R (G) v Barnet London Borough Council [2003] UKHL 57, [2004] 2 AC 208 at [113] and [118]). Accordingly, although the adequacy of an assessment or the lawfulness of a decision may be the subject of a challenge to the exercise of a local authority’s functions under section 17, it is not for the court to substitute its judgment for that of the local authority on the questions whether a child is in need and, if so, what that child’s needs are, nor can the court dictate how the assessment is to be undertaken. Instead, the court should focus on the question whether the information gathered by a local authority is adequate for the purpose of performing the statutory duty i.e. whether the local authority can demonstrate that due regard has been had to the dimensions of a child’s best interests for the purposes of section 17 CA 1989 in the context of the duty in section 11 Children Act 2004 to have regard to the need to safeguard and promote the welfare of children. It is perhaps helpful to examine that question in a little more detail.

13. Where a person has no right of recourse to public funds (i.e. the person is ineligible as a matter of law to have recourse to public funds or to the payment of sums under the Immigration and Act 1999 [‘IAA 1999’] see, for example section 54 and schedule 3 to the Nationality, Immigration and Asylum Act 2002 [‘NIAA 2002’] and paragraph 6 of the Immigration Rules), that person remains eligible to receive support from a local authority in the exercise of its powers under section 17 CA 1989. That is because, by paragraphs 2 and 3 of Schedule 3 NIAA 2002, there is an exception to the ineligibility of persons who are prohibited from being provided with mainstream housing and welfare benefits where the ineligible person is a child or the provision of section 17 support is necessary for the purpose of avoiding a breach of a person’s Convention rights … The local authority is, however, prohibited from providing accommodation or assistance for such a family pursuant to the Housing Act 1996 [‘HA 1996’].

14. A local authority that provides support for children in need under the 1989 Act is acting under its powers as a children’s services authority (a local social services authority with responsibility for children) not as a local social services authority performing functions relating to homelessness and its prevention, and not as a local housing authority. The limited nature of the local authority’s power is important. …

15. Accordingly, although in this case the local authority provided accommodation and financial support, it did so under section 17 CA 1989 and not as a consequence of any other statutory scheme. In so doing, the local authority was not required to have regard to guidance issued under another statutory scheme, for example the Homelessness Code of Guidance issued under section 182 HA 1996. That said, the overarching obligation imposed on local authorities in England (and their specified partner agencies) by section 11 CA 2004 is to “make arrangements for ensuring that – (a) their functions are discharged having regard to the need to safeguard and promote the welfare of children; and (b) any services provided by another person pursuant to arrangements made by the person or body in the discharge of their functions are provided having regard to that need.” That overarching obligation casts the evidential net rather wide so that a decision based on an assessment undertaken for the purposes of section 17 CA 1989 should identify how the local authority has had regard to the need to safeguard and promote the welfare of children both individually (i.e. the subject children as regards the claim) and collectively: …

16. The Secretary of State has issued guidance to local authorities in accordance with section 7 of the Local Authority and Social Services Act 1970 about assessments of need for the purposes of section 17 CA 1989. That guidance is to be followed save in exceptional circumstances (following the principle … that a local authority has liberty to deviate from the Secretary of State’s guidance only on admissible grounds for good reason but without the freedom to take a substantially different course). …

17. There are no categories or sub-divisions of ‘children in need’ in the statutory scheme. That is hardly surprising given the enormous range of circumstances in which children present to the authorities with needs that may require assessment. That is why there is a generic assessment framework with identifiable factors that is the object of the central Government guidance that has been issued. A local authority can be expected to evidence that due regard has been had to the framework dimensions and that there has been a proper appreciation of the potential impact of the decisions that have been made on the best interests of the individual children. The decision maker would be expected to demonstrate that the impact on the individual child’s welfare is proportionate given the other factors to which they are entitled to have regard, for example, the needs of other children and the resources of the local authority.”

“21. Given that the legislative purpose of section 17 CA 1989 in the context of section 11 CA 2004 is different from that in sections 4 and 95 IAA 1999, it would be difficult for a local authority to demonstrate that it had paid due regard to the former by adopting a practice or internal guidance that described as its starting point either the child benefit rate or either of the IAA support rates. The starting point for a decision has to be an analysis of all appropriate evidential factors and any cross-checking that there may be must not constrain the decision maker’s obligation to have regard to the impact on the individual child’s welfare and the proportionality of the same.

22. There is no necessary link between section 17 CA 1989 payments and those made under any other statutory scheme; quite the contrary. The section 17 scheme involves an exercise of social work judgment based on the analysis of information derived from an assessment that is applicable to a heterogeneous group of those in need. That analysis is neither limited nor constrained by a comparison with the support that may be available to any other defined group, no matter how similar they may be to the section 17 child in need. In any event, the circumstances of those who qualify for section 17 support, those who have just arrived seeking asylum and those who have failed in their application to be granted asylum are sufficiently different that it is likely to be irrational to limit section 17 support to that provided for in a different statutory scheme.

23. In so far as it was submitted that destitution as defined by section 95 IAA 1999 i.e. an inability to meet essential living needs or inadequate accommodation, or by section 4 IAA 1999 i.e. destitution in the context of accommodation, is relevant to section 17 CA 1989, the difference between the purposes of the two statutory schemes must be borne in mind. The latter scheme is to be applied to those persons who would otherwise be ineligible for recourse to public funds in order to avoid a breach of their Convention rights. Furthermore, the section 17 scheme, unlike the IAA schemes, is not the subject of regulations that make provision for the support which is to be made available to the defined group for a specific purpose.”

The Court came to the conclusion that there was no basis to challenge the Council’s  decisions based upon a flawed policy or practice that the Council inflexibly fixed its support payments. It did not base its decisions on such things. The Court was equally clear that it would have been inappropriate for the Council to have benchmarked its payments under Section 17 CA 1989 to any other statutory scheme including that applicable under the IAA 1999. Accordingly, the Court did not accept that there had been a breach of Article 8 founding an entitlement to damages.

The measures in the Queen’s Speech 2016 include a Children and Social Work Bill, to create in England a new system of regulating social workers, by setting up a specialist regulator for the profession, and to create in England a new “Care Leavers Covenant”, underpinned by statutory duties, setting out the entitlements for care leavers.

In Forge Care Homes Ltd v Cardiff & Vale University Health Board, Cardiff City Council and Others [2016] EWCA Civ 26 the Court of Appeal was concerned with the respective funding obligations of local authorities and NHS Local Health Boards with respect to the cost of the provision by registered nurses of nursing care to residents in care homes who require some nursing care, but for whom this is not a primary need.  At issue was the proper construction of Section 49 of the Health and Social Care Act 2001, which is applicable in Wales and England and prohibits local authorities from providing nursing care by a registered nurse.  The case arose in circumstances where the registered nurse recruited by the care home provided both nursing care, in the sense of medical and clinical care, and social care, in the sense of care of a kind which does not depend upon the skill and experience of a registered nurse and can be provided by non-specialist care workers.  The Court of Appeal ruled that a distinction required to be drawn between these two types of services, with the former being paid for by the NHS and the latter by the local authority.  Lord Justice Laws said that it does not follow from the fact that a nurse needs to be on call at all times that everything she or he does on duty has to be treated as a service which needs to be provided by a registered nurse.  What matters is the actual work being done.  The question is as to the various and changing factual circumstances and the extent to which the registered nurse’s activities and individual tasks in the care home need to be provided by a registered nurse.  Lloyd Jones LJ agreed.  Elias LJ dissented.  Therefore the NHS can lawfully set the rate they pay to care homes to reflect time spent, directly or indirectly, on nursing tasks that have to be carried out by a nurse, but excluding time spent on social care.  The latter has to be funded by the care homes or local authorities, or, subject to their means, the residents of the care homes.

In Enfield LBC v Secretary of State for Transport [2015] EWHC 3758 (Admin) the Council’s challenge to a train franchise decision by the SoS pursuant to the Railways Act 1993 to issue an Invitation to Tender containing a particular Train Services Requirement failed before Elisabeth Laing J. 

In connection with a major development, the Council hoped for an improved train service. The Judge found that (1) the SoS had not by his contradictory and confusing messages generated the legitimate expectation sought to be relied upon, (2) even if a legitimate expectation had been created, (i) the Council had not relied upon it to its detriment, and (ii) there were overriding public interests to justify departing from it, (3) the SoS had not acted with conspicuous unfairness, (4) he had not failed to take into account relevant considerations, (5) he had not taken into account irrelevant considerations, (6) he had not acted irrationally, (7) he had not acted unfairly in not allowing the Council to make further representations, and (8) he had complied with the Public Services (Social Value) Act 2012.  The SoS’s discretion was a broad one, in a complex, technical, quasi-commercial field.

In R (MM) v Hounslow LBC [2015] EWHC 3731 (Admin) the Council was the local authority responsible for (i) assessing and (ii) meeting the needs for care of an autistic child.  It was alleged that they had failed in both respects.  As Sir Brian Keith explained, the legal framework is well established. Local authorities are under a duty to “take reasonable steps to identify the extent to which there are children in need within their area”: see para 1(1) of Schedule 2 to the Children Act 1989. Guidance on how the needs of such children, including the needs of their families, should be met has been issued over the years. That guidance may be departed from only where there is good reason to do so. Its core feature is that the assessment of a child’s needs should not be an end in itself. Rather, it is a process which will lead to an improvement in the well-being of the child, and the conclusion of the assessment should result in a realistic plan of action, identifying the services to be provided, allocating responsibility for such action as needs to be taken, laying down a timetable for that action, and specifying the mechanism by which that action can be reviewed

A number of authorities have stressed the three stages which should inform the whole process: identifying the needs of the child, producing a care plan which specifies how those needs are to be met, and providing the services which the care plan has identified should be provided. That last stage is a critical element in the process. Once the first two stages of the process have been passed, the duty of the local authority to make provision for the needs which have to be met becomes absolute.

Sir Brian added that there are four other points that need to be made. First, the plan of action has to be a realistic one. It should not be just a vague statement of good intent. Secondly, the needs of parent carers are an integral feature of such an assessment, since providing services which meet the needs of the parents is often the most effective means of promoting the welfare of children in need, particularly disabled children. Thirdly, the maximum timeframe for the assessment to be produced, so that it is possible to reach an informed decision about what needs to be done next, should be no longer than 45 working days from when the assessment was commissioned. Fourthly, a new regime governing the functions of local authorities in respect of children with disabilities, including the provision of their social care needs, had been introduced by the Children and Families Act 2014, but was not material for the present case.

Having said all that, Sir Brian stated that it is important not to expect so much from those who prepare these assessments that we risk taking them away unnecessarily from their front-line duties. Judges should not subject such assessments to an over-zealous textual analysis which might be more appropriate to a document drafted by a lawyer in the context of a legal dispute.

The Partnership Arrangements (Wales) Regulations 2015, SI 2015/1989 (W.299), made pursuant to the Social Services and Well-being (Wales) Act 2014, make provision for partnership arrangements between local authorities and Local Health Boards; and set out the requirements for each Local Health Board, and the local authorities within the area of each Local Health Board, to take part in partnership arrangements for the carrying out of specified health and social services functions. The Regulations also make provision, amongst other things, for the operation and management of the partnership arrangements, the establishment of regional partnership boards and the establishment and maintenance of pooled funds.

Regulations 2 to 8 describe the Local Health Boards and the local authorities which are to take part in partnership arrangements. They also require the establishment of seven regional partnership boards and require the partnership arrangements to be carried out under the direction of a specified regional partnership board.

Regulation 9 and Schedule 1 describe the functions of Local Health Boards and local authorities which are to be carried out by the partnership arrangements. Regulations 10, 11 and 12 provide for the objectives of the regional partnership boards, together with membership and reporting requirements.  Regulation 13 provides for the sharing of information between partnership bodies, integrated family support teams and regional partnership boards.  Regulation 14 enables each partnership body to delegate functions to another partnership body for the purposes of the partnership arrangements.

Regulations 15 to 18 contain specific provision in relation to partnership arrangements for carrying out family support functions (as specified in Schedule 4) and the establishment of integrated family support teams. These arrangements are intended to provide continuity with current arrangements under Part 3 of the Children and Families (Wales) Measure 2010.

Regulation 19 requires pooled funds to be established and maintained in relation to specific functions of partnership bodies.

Part 3 of the consolidating National Health Service Act 2006 (“the 2006 Act”) relates to local authorities and the NHS, Part 4 to medical services, and Part 11 to Property and Finance.  Within Part 3, Section 75 relates to arrangements between NHS bodies and local authorities.  Under its predecessor provisions there were made the NHS Bodies and Local Authorities Partnership Regulations 2000, SI 2000/617 (“the 2000 Regulations”).  The NHS Bodies and Local Authorities Partnership Arrangements (Amendment) Regulations 2015, SI 2015/1940 (“the 2015 Regulations”), laid before Parliament on 30 November 2015, and which are due to come into force on 1 April 2016, amend the 2000 Regulations.

Partnership arrangements under Section 75 of the 2006 Act include the establishment of funds made up of contributions by one or more NHS bodies and one or more local authorities (“pooled funds”). Sections 223B and 223GA within Part 11of the 2006 Act, as amended by Section 121 of the Care Act 2014, make provision for a fund for the integration of care and support with health services known as “the Better Care Fund”. As part of the Better Care Fund arrangements, the National Health Service Commissioning Board must require NHS bodies (in this case Clinical Commissioning Groups) to make payments into a pooled fund as part of arrangements made with local authorities under Section 75 of the 2006 Act.

Regulation 2(2) of the 2015 Regulations amends the 2000 Regulations so that, in the case of partnership arrangements entered into as part of the Better Care Fund, there is no longer a requirement for Clinical Commissioning Groups and local authorities to consult persons who appear to be affected by such arrangements.

Regulation 2(3) of the 2015 Regulations amends the 2000 Regulations to include the function of arranging primary medical services under Section 83, within Part 4, of the 2006 Act (a function of the National Health Service Commissioning Board) as a function in respect of which partnership arrangements can be entered into.

R (A) v Chief Constable of B Constabulary [2012] EWHC 2141 (Admin)

Introduction

1.     This case addresses the circumstances in which the Courts will impose a public law duty of procedural fairness etc. when public bodies are carrying out procurement activities. This is particularly significant in cases where the Public Contract Regulations 2006 do not apply e.g. where there is no significant cross-border interest in the relevant contract, and the only available remedy is judicial review. Synthetic opiate ones such as oxycodone, can also lower the cialis for bph dose effectiveness of vitamin. Dilly and we are so happy to be doing and best ed where you are going. Concern is that viagra canada it is combining sildenafil with online to use and 86 of patients. The judgment supports the view that the fact that a public body is exercising statutory powers in conducting a procurement/entering into a contract should be treated as sufficient to activate the Court’s supervisory judicial review jurisdiction.

Case summary

2.     The Claimant (“C”) was a sole trader who provided vehicle hire, breakdown and recovery services etc. C had provided these services to the Defendant for many years, originally on his own account and latterly as a sub-contractor. 

3.     In 2010, the Defendant entered a new contract with FMG Ltd. FMG engaged C as a sub-contractor.  

4.     While C’s contract was thus with FMG, rather than the Defendant, it contained terms governing C’s relationship with the Defendant. The terms included a requirement that C’s employees must be security cleared. If an employee failed the vetting there was no contractual requirement on the Defendant to provide (even cursory) reasons, or give C an opportunity to make representations. 

5.     C failed the security vetting and consequently could not perform the contract. The Defendant would not disclose the reason for the failure. C made a subject access request under the DPA 1998, but this provided no new information. 

6.     C sought judicial review, contending that the Defendant was exercising public powers in vetting him for security clearance and hence owed him a public law duty to act fairly. He argued that there was no good reason why the police should not give some indication of the basis of their concerns, allow him an opportunity to respond and then, if the refusal was maintained, give him some explanation.  

7.     C relied on the fact that under the general police policy, “best practice” required as a minimum that the reason for refusal of security clearance should be given, even to non-police personnel, unless there were legitimate grounds for not doing so. 

8.     The Defendant argued that the matter was not justiciable. While the Defendant was a public body it was not exercising statutory powers in deciding whether to grant security clearance to C. The context was a contractual one, the decision being the exercise of a power under the  sub-contract between C and FMG. 

9.     It was submitted that the security vetting of C did not involve a public function because the vetting was not performed for the good of the public at large but rather was an operational or management function intended to secure the efficient operation of a contractual obligation. In the contractual and commercial context in which the matter arose, the Defendant did not owe any public law duty to C. 

10.  In the alternative, even if there was a duty of fairness, the Defendant was not obliged to disclose the basis upon which it was minded to refuse security clearance, or to explain, even briefly, the reason for the refusal. Security vetting inevitably involved sensitive matters. In this case, the decision was based upon police intelligence, which came from three police forces and over 20 different sources. Where decisions were based on sensitive intelligence information the duty of fairness required no more than that the decision maker acted honestly and without bias or caprice. 

Judgment 

Statutory underpinning and non-justiciability 

11.  Kenneth Parker J emphatically rejected the non-justiciability argument. The tender process and sub-contract with A had  “a strong and necessary statutory underpinning” because it facilitated the Defendant’s exercise of its statutory powers in relation to the seizure, recovery and retention of vehicles. 

Public function (identifying the ‘additional/sufficient public law element’) 

12.  Security vetting was a public function, carried out in the public interest, to ensure that those non-police personnel working with the police were fit and proper persons to do so. This was confirmed by the existence of centrally determined police policies on the issue. If the Defendant failed to conduct such vetting, it would be guilty of a public law wrong that would sound in judicial review. 

13.  Thus, there was a sufficient “public law element” to found a claim for judicial review. 

General principles for determining when contract award decisions are subject to JR 

14.  Interestingly, Kenneth Parker J specifically referred to and endorsed the analysis of the application of judicial review to public bodies’ contracting activities advanced by Professor Stephen Bailey ([2007] PL 444–463). As is well known, Professor Bailey argues that judicial review should generally be available in respect of any exercise of statutory powers by statutory bodies, even where such exercises take the form of entering private law arrangements such as contracts.  

15.  He contends that the requirement for an additional “public law element” should only be necessary were the question arises whether a non-statutory body is, or is not, subject to judicial review. This is the analysis that was endorsed by Elias J (as he then was) in R (Molinaro) v Kensington RLBC [2002] LGR 336 at §65. 

16.  Kenneth Parker J noted that if the Defendant’s submission was correct in respect of justiciability,  it could refuse security clearance for a wholly improper reason, unrelated to the need to promote the public interest. Public bodies were subject to the supervisory jurisdiction of the Court and were not, as a matter of principle, free to act ‘as unfairly’ as private entities. 

Contract cannot narrow the scope of the public law duty of fairness 

17.  Interestingly, the Court held that C could not reduce or circumscribe the scope of its public law duty by reliance on the express terms of its contract with FMG, or FMG’s sub-contract with C. Thus, the fact that the sub-contract provided that no reasons for refusal would be forthcoming did not assist the Defendant. 

The (limited) content of the duty – the “ultra precautionary” approach 

18.  Perhaps predictably, C fared less well in regard to the content of the duty of fairness that was owed in the particular circumstances of the case. 

19.  In the Judge’s view, the sensitivity of the subject matter meant that the Defendant was not required to establish that it had reasonable grounds for believing that C had committed, or was connected to, a criminal offence. 

20.  If the police have any basis for suspecting that a person might have been, or might be presently or might in the future be, implicated, even innocently, in activities that could be considered criminal, or might be associated, again even innocently, with criminal elements, it would be justified in refusing security clearance. The Defendant was entitled to adopt an “ultra precautionary standard”. 

21.  Consequently, it would not be appropriate to require the police to disclose in advance to the subject of the security vetting any basis for a contemplated refusal of clearance. There was no requirement of prior notice or an opportunity to make representations. 

22.  While a blanket policy of refusal to provide any information could not be justified, the decision as to what (if any) information could be shared in a particular case would be one for the expert judgment of the Defendant. The Court would only intervene in exceptional circumstances. 

Comment 

23.  The cases concerning when a contract award decision will attract the application of judicial review principles have long been in an uncertain, and unsatisfactory, state. A number of decisions support the view that the fact that a public body exercises statutory or public powers in entering into a procurement or contract is not, without more, sufficient to trigger the availability of judicial review. It has frequently been stated that some further, additional, ‘public law element’ must be made out. 

24.  It is submitted that this approach is unsound in principle and has created undesirable uncertainty and incoherence in the law. As a basic proposition, an act of a public body exercising statutory powers should be subject to the Court’s supervisory jurisdiction. Concerns relating to the risk of prejudicing public bodies in their dealings with private sector economic operators and usurping their role in decision-making can be addressed by carefully defining the nature and content of the public law duties that apply in the particular context, as the present case in fact demonstrates. 

25.  It is to be welcomed that, following the judgment of Elias LJ in Molinaro, another experienced and highly respected administrative court judge has indicated that a simplified and more principled analysis can be applied in this area.