Individuals claim to be an unaccompanied child asylum seeker. The local authority assesses their ages. It decides that they are not children, they are not under 18. On that basis it has no functions in relation to them under the Children Act 1989 (“CA 1989”). However, pursuant to CA 1989, the authority had been providing services pending its assessment. At the same time that the authority provided reasons for its age assessment decision it stopped providing their services. That was in accordance with its policy or practice. Is that policy or practice of simultaneous over 18 age assessment decision and withdrawal of services under CA 1989 unlawful, as being procedurally unfair and contrary to ECHR Article 8? Read more »
Intentional Homelessness
July 7th, 2017 by James Goudie KC in Housing
The case of Alfonso-da-Trindade v Hackney LBC (2017) EWCA Civ 942 concerns becoming becoming homeless intentionally and Section 191 of the Housing Act 1996, which provides (emphasis added):-
“(1) A person becomes homeless intentionally if he deliberately does or fails to do anything in consequence of which he ceases to occupy accommodation which is available for his occupation and which it would have been reasonable for him to continue to occupy. Read more »
Rejection of Tenderer’s bid
July 5th, 2017 by James Goudie KC in Decision making and ContractsIn Case T-392/15, European Dynamics v European Union Agency for Railways, the applicants alleged that the Agency had failed to fulfil its obligations to state reasons for its decision. The applicants’ case was that the rejection decision, and the Report of the Evaluation Committee leading to that decision, were vitiated by a failure to give reasons why the applicants’ tenders were abnormally low tenders (“ALTs”). The General Court dealt with the linked issues of the scope of the duty of a contracting authority to state reasons and the scope of the rules governing ALTs. Read more »
Unfair Contract Terms
June 29th, 2017 by James Goudie KC in Decision making and ContractsThe Unfair Contract Terms Act 1977 applies not only in favour of consumers but also “between contracting parties when one of them deals … on the other’s written standard terms of business”: Section 3. What is meant by “deals … on the other’s written standard terms of business”? That was the main issue in African Export-Import Bank v Shebah Exploration & Production Company Limited (2017) EWCA Civ 845. Longmore LJ gave guidance as to the correct approach. He observed that before the Act can be held to apply and require an inquiry into the reasonableness of any particular term, the party relying on the Act must establish (the onus of proof being on that party) that:- Read more »
Investigations
June 29th, 2017 by James Goudie KC in StandardsIn Hussain v Sandwell MBC (2017) EWHC 1641 (Admin) the Council had conducted a “pre-formal investigation”, i.e. an investigation not conducted under the “arrangements” put in place under the Localism Act 2011 (“LA 2011”) for the formal investigation of breaches under the Code of Conduct applicable to elected Members. Read more »
Lifting Automatic Suspension
June 28th, 2017 by James Goudie KC in Decision making and ContractsIn yet another Alstom Transport UK Limited v London Underground Ltd (2017) EWHC 1521 (TCC) the Defendants applied to lift an automatic suspension on contract making imposed by the Utilities Contracts Regulations 2006.
The present dispute arose out of a procurement for the provision of AC traction motors for the Defendants’ fleet of Central Line trains. The outcome of the procurement was that the Defendants decided that Bombardier should be the winning bidder, with Alstom coming second. By these proceedings Alstom challenged the validity of the procurement and its outcome. It opposed the lifting of the automatic suspension. Read more »
Restitution
June 27th, 2017 by James Goudie KC in Judicial Control, Liability and LitigationProceedings brought by or against local authorities often contain a claim in restitution, usually on the basis of a mistake. In Astex Therapeutics Ltd v Astrozeneca [2017] EWHC 1442 (Ch) the High Court (Arnold J) has reaffirmed that any mistake either of law or of fact can qualify as a mistake for restitutionary purposes, provided that it is causative, and that in order to establish a prima facie claim to restitution of an enrichment, a party needs to show only that (1) it was mistaken at the time the enrichment was conferred and (2) it was that mistake that had caused that enrichment to be conferred. In that case the payments were milestone payments and the mistake was as to contractual status.
Possession Proceedings
June 22nd, 2017 by James Goudie KC in Judicial Control, Liability and LitigationIn Hertfordshire County Council v Davies [2017] EWHC 1488 (QB) Mrs Justice Elisabeth Laing rejected a variety of defences and held that the Council was entitled to possession of the School Bungalow (“the Bungalow”) in Hoddesdon in its area. The Defendant moved into it with his family when he became the caretaker at Sheredes School (“the School”). Eventually, after a disciplinary hearing, the Council dismissed the Defendant for gross misconduct. He appealed against the decision to dismiss him, unsuccessfully. The Council served a notice to quit requiring the Defendant to give up possession. Thereafter the Council issued proceedings for possession. The claim was in due course transferred to the High Court because one of the remedies sought by the Defendant in his counterclaim was a declaration that paragraph 2 of Schedule 1 to the Housing Act 1985 (“the 1985 Act”) is incompatible with his rights conferred by the European Convention on Human Rights. Read more »
Public Spaces
June 20th, 2017 by James Goudie KC in Environment, Highways and LeisureThe Local Government Association has published Guidance for Councils on Public Spaces Protection Orders under the Anti-social Behaviour, Crime and Policing Act 2014.