In Smith v Lancashire Teaching Hospitals NHS Foundation Trust [2017] EWCA Civ 1916 an issue arose whether a provision in the Fatal Accidents Act (“the FAA”) was compatible with Article 14 of the ECHR (prohibition of discrimination) read in conjunction with Article 8 (right to respect for private and family life), and therefore whether the bereavement damages regime under the FAA falls within the ambit of Article 8, so as to engage Article 14. In order to bring herself within Article 14, Ms Smith did not have to show that the State had infringed her rights under Article 8. She did need to show that her complaint fell within the “ambit” of Article 8.
ECHR Articles 8 and 14
November 29th, 2017 by James Goudie KC in Human Rights and Public Sector Equality Duty
Working Time
November 29th, 2017 by James Goudie KC in Judicial Control, Liability and LitigationOn 29 November 2017 the European Court of Justice (“the ECJ”) has given Judgment in Case C-214/16, King v The Sash Window Workshop Ltd, in which Mr King sought an allowance in lieu of annual leave not taken, or taken but not paid, for the years 1999 to 2012, the entire period of his engagement by the Defendant. The Defendant rejected the claim on the basis that Mr King was self-employed. By the time the case reached the ECJ it was common ground that Mr King was nonetheless a “worker” for the purposes of the Working Time Directive. Read more »
Shortfall in supply
November 27th, 2017 by James Goudie KC in HousingParagraph 49 of the National Planning Policy Framework states that housing applications should be considered in the context of the (paragraph 14) presumption in favour of sustainable development and that policies for housing supply should not be regarded as up to date if the Local Planning Authority is unable to demonstrate a five-year supply.
In Hallam Land Management Ltd v SoS for CLG and Eastleigh Borough Council (2017) EWHC 2865 (Admin) Supperstone J ruled (paragraphs 22/23) that where there is a shortfall the SoS is not required in every case to determine the precise extent of the shortfall. The key question is whether the housing land supply is above or below five years. Read more »
Infrastructure projects
November 24th, 2017 by James Goudie KC in Capital Finance and CompaniesThe Treasury has on 22 November 2017 confirmed that it will lend local authorities in England up to £1 billion at a new discounted interest rate of gilts + 60 basis points, accessible for three years, with a maximum term of 50 years, to support infrastructure projects that are “high value for money”. Details of the bidding process are to be published in December 2017.
Agency
November 22nd, 2017 by James Goudie KC in HousingIn Haringey LBC v Ahmed (2017) EWCA Civ 1861, where the Council claimed possession of a property, the Court of Appeal held, in allowing the Council’s appeal against the dismissal of its claim, that a Judge had been wrong to find that a husband who had taken sole responsibility for securing accommodation for his family had acted as agent for his wife when entering into a secure tenancy in their joint names. The Judge’s finding that the wife had not been involved in, or informed about, the tenancy meant that the usual characteristics of an agency were absent, in the absence of agency, the husband had been the sole tenant. Therefore, when he left the property, the wife could not defend possession proceedings on the basis that she was a joint tenant. Read more »
Hiring a council park
November 20th, 2017 by James Goudie KC in Environment, Highways and LeisureIn R (Friends of Finsbury Park) v Haringey LBC (2017) EWCA Civ 1831 the Court of Appeal has dismissed an appeal from Supperstone J dismissing a claim for judicial review of a decision by Haringey Council to hire part of Finsbury Park for a licensed music Festival, pursuant to Section 145 of the Local Government Act 1972.
The Council held Finsbury Park under Section 10 of the Open Spaces Act 1906 or a statutory trust for use by the public for recreation. The public were its beneficial owners. They had a statutory right to use it for recreational purposes. The local authority owner must generally allow the public the free and unrestricted use of it. It cannot exclude the general public from it. All that, however, is subject to contrary legislative provisions.
The Court of Appeal, agreeing with Supperstone J’s reasons, held that Section 145 of the 1972 Act provided the Council with power to enclose part of Finsbury Park for the purposes of events such as the Festival. They were not limited to considering the application for hire only under other statutory provisions. They were able to do so notwithstanding the trust under the 1906 Act, provided that they used the 1972 Act power lawfully and not to frustrate the legislative purpose.
Capital finance and companies
November 13th, 2017 by James Goudie KC in Capital Finance and CompaniesCLG is consulting, from 10 November to 22 December 2017, on changes to the prudential framework of capital finance, set out in the Local Government Act 2003, Regulations and CIPFA Codes, and in particular statutory guidance on local authority investments and guidance on minimum revenue provision, applying to local authorities in England.
The Statutory Guidance on Local Authority investments (“Investments Guidance”) covers proper practices that local authorities are required to follow when making investment decisions. It gains its statutory status from Section 15(1)(a) of the Local Government Act 2003, under which local authorities are required to have regard to such guidance as the Secretary of State may issue. The Investments Guidance was last updated in 2010, following Parliamentary inquiries into local authority investments in Icelandic Banks. As a result the Investments Guidance was very focused on investments in financial institutions. Read more »
Minicab licensing
November 13th, 2017 by James Goudie KC in Environment, Highways and LeisureIn R Milton Keynes Council v Skyline Taxis and Private Hire Limited (2017) EWHC 2794 (Admin) considered an appeal with respect to offences under the Local Government (Miscellaneous Provisions) Act 1976 of operating a vehicle as a private hire vehicle for which a licence was not in force and the driver of which was not licensed. The Divisional Court set out the legal background as follows.
There are two types of car available for hire to transport passengers, namely hackney carriages (or “taxis”) and private hire vehicles (or “minicabs”), to which different rules apply. The appeal concerned only the latter. Moreover, it concerned only the provisions which apply to out-of-London private hire vehicle operations. Different provisions apply to minicabs in London. Read more »
Consultation
November 13th, 2017 by James Goudie KC in Decision making and ContractsIn R (Help Refugees Ltd) v SSHD (2017) EWHC 2727 (Admin) a Divisional Court held that there had been no unfairness in the SSHD’s statutory consultation with local authorities on the requirements relating to the relocation of Unaccompanied Asylum Seeking Children. The test was not whether the consultation process was free from all blemish, but whether the consultation was so unfair as to be unlawful, i.e. whether it reached an appropriate level of fairness, judged in the light of the criteria for a fair consultation. The target audience was knowledgeable, sophisticated, and familiar with refugee issues. There was no reasonable expectation that late responses would be considered. Read more »