Automatic Suspension

February 12th, 2018 by James Goudie KC in Decision making and Contracts

Lancashire Care NHS Foundation Trust v Lancashire County Council (2018) EWHC 200 (TCC) concerns yet another application to lift an automatic suspension on the award of a contract imposed by virtue of the claimants issuing a claim form, within the necessary time period, challenging the results of a procurement exercise for that contract in which they were unsuccessful. Fraser J refused to lift the automatic suspension.

The procurement the subject matter of these proceedings concerns Public Health and Nursing Services to be provided to children and young persons from birth up to the age of 19, including services that concern children and adolescent mental health, across the county of Lancashire. It therefore involves a sizeable population and includes some of the most vulnerable members of society. The procurement exercise and the contract are both subject to the Public Contract Regulations 2015 (“the Regulations”). Read more »

 

GPOC

February 8th, 2018 by James Goudie KC in Decision making and Contracts

The General Power of Competence (“GPOC”) in Section 1 of the Localism Act 2011 (“LA 2011”) and its exclusion, by Section 4 of LA 2011, when an authority is acting “for a commercial purpose”, but not through a limited company, has been considered in Peters v Haringey LBC (2018) EWHC 192 (Admin). The case is concerned with the Haringey Development Vehicle (“the HDV”).  The purpose of the HDV is to create a partnership, by way of a limited liability partnership (“LLP”), between the Defendant Council, and a private sector body, Lendlease, and to bring private sector finance, experience and expertise to the task of developing the Council’s land for its better use, and so achieving the Council’s strategic aims in housing, affordable housing and employment. The Claimant challenged by way of judicial review a decision made by the Council through its Cabinet, on 20 July 2017, to confirm Lendlease after a procurement process as the successful bidder to become the Council’s partner in the HDV, and also approved the structure of the HDV. Read more »

 

PRUDENTIAL FRAMEWORK

February 5th, 2018 by James Goudie KC in Capital Finance and Companies

Statutory Guidance (3rd Edition) on Local Government Investments, under Section 15(1)(a) of the Local Government Act 2003, and effective for financial years commencing on or after 1 April 2018, has been published on 2 February 2018.  Also on 2 February 2018, Statutory Guidance (4th Edition) on Minimum Revenue Provision has been issued, under Section 21(1A) of the 2003 Act.  Both were preceded by consultation on proposed changes and are accompanied by a summary of consultation responses and the Government’s responses to those responses.  This document states:-

“Following consideration of the consultation responses the Government, in summary, intends to:

  • make some technical changes to the Investments Guidance and the MRP Guidance reflecting respondents’ feedback;
  • amend proposals related to the Useful Economic Lives of assets;
  • implement the Investments Guidance for 2018-19, but allow flexibility on when the additional disclosure first needs to be presented to full Council or its equivalent; and
  • defer implementation of MRP Guidance to 2019-20. This is in recognition of the fact that it is very late in the 2018-19 budget setting cycle.”

 

ECHR ART 5

February 5th, 2018 by James Goudie KC in Social Care

Re A-F (Children) (2018) EWHC 138 (Family) is a number of test cases listed before the President of the Family Division, Sir James Munby. They raise various substantive and procedural questions in relation to the interface between care proceedings brought in the Family Court pursuant to Part IV of the Children Act 1989 and the requirements of Article 5 of the Convention, specifically, the circumstances in which Article 5 is engaged in relation to a child in the care of the local authority and, where Article 5 is engaged, what procedures are required to ensure that there is no breach of the requirements of Articles 5(2)-(4).

The President dealt with the general principles from paragraphs 8 to 40 inclusive of his Judgment, the question of whether it is possible to identify a “minimum age” at paragraphs 41-44 inclusive, and process and procedure at paragraphs 46-53 inclusive, the interface with care proceedings at paragraph 54, and continuing review at paragraphs 55/56. Read more »

 

Legitimate Aim and Proportionality

February 1st, 2018 by James Goudie KC in Decision making and Contracts

On 29 January 2018 the Employment Appeal Tribunal (Sir Alan Wilkie) handed down Judgment in discrimination cases relating to the transitional provisions put in place by for example the London Fire and Emergency Planning Authority, under the Public Service Pensions Act 2013, as part of major changes to public sector pensions following the Hutton Report.

The EAT ruled that, in favouring those closer to retirement age, a legitimate social policy aim was being pursued that was capable of justifying direct discrimination. The EAT further ruled that an ET must make up its own mind as to whether the transitional provisions in support of that legitimate aim are proportionate having regard to their discretionary effect.  That is not a matter for a “margin of discretion”.

 

Ethics

January 30th, 2018 by James Goudie KC in Standards

The Committee on Standards in Public Life has on 29 January 2018 initiated a review of and consultation upon local government ethical standards, for responses by 18 May 2018. The consultation questions are: Read more »

 

Environmental Information

January 29th, 2018 by James Goudie KC in Planning and Environmental

Regulation 12(5)(a) of the Environmental Information Regulations 2004 is a qualified exception from disclosure requirements on the ground of adverse effect upon public safety. In Natural England v Information Commissioner, EA/2017/0160, with respect to culling of badgers, the FTT, on 24 January 2018, stated:-

“66.    Natural England’s case as to the law was largely accepted by the other parties.  We also accept that: the term “public safety” in the EIRs should be read as importing the concept of “public security” referred to in the Aarhus Convention and the Directive.  We accept that, in principle, harm or an increased risk of harm to one person or their property could engage the exception and that there is no additional requirement for there to be widespread disorder and chaos.  We find, however, that the placement of “public safety” in a composite exception in the EIRs which also includes international relations, defence and national security must also be accorded some significance. Read more »

 

Housing need

January 23rd, 2018 by James Goudie KC in Housing

In Jelson Ltd v SoS for CLG and Hinckley & Bosworth BC (2018) EWCA Civ 24 the Court of Appeal has restated (1) that national policy and guidance does not dictate exactly how a decision-maker is to go about identifying a realistic and reliable figure for housing need, against which to test the relevant supply, (2) that responsibility for the assessment of housing need lies with the decision-maker, and that (3) the scope for a reasonable and lawful planning judgment is broad.

 

Rateable value

January 23rd, 2018 by James Goudie KC in Council Tax and Rates

Ascertainment of the rateable value of a non-domestic hereditament requires that each individual hereditament should be individually assessed and the application of a hypothesis. If the property is in rateable occupation at all, the rateable value is taken to be an amount equal to “the rent at which it is estimated the hereditament might reasonably be let from year to year” on the three assumptions set out in paragraph 2 of Schedule 6 to the Local Government Finance Act 1988.  Read more »

 

BIAS

January 15th, 2018 by James Goudie KC in Decision making and Contracts

R (Legard) v Kensington and Chelsea RLBC (2018) EWHC 32 (Admin) concerns the Council’s decision to permit a Neighbourhood Plan, for the designation of land as a Local Green Space, pursuant to paragraph 77 of the NPPF, to proceed to a Referendum.   The various grounds of complaint included allegations of apparent bias, breaches of the requirements of fairness, and ultra vires. Read more »

 

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