PSED

July 25th, 2016 by James Goudie KC in Human Rights and Public Sector Equality Duty

R (DAT) v West Berkshire Council [2016] EWHC 1876 (Admin) is a PSED challenge which succeeded. It arose out of a budget decision to cut funding to voluntary sector organisations who provide short breaks for disabled children.  The officer report to members stated that the PSED requires decision makers “to keep the welfare of service users and their families at the forefront of their mind, particularly the most disadvantaged” (“the formula”).  Elisabeth Laing J found that, despite the provision by officers to members of the necessary factual information, the Council failed to have “due regard” to the needs listed in Section 149 of the Equality Act 2010.  The problem was that, while members were given the text of Section 149, they were directed to the formula.  She said:

“45.    … That would have been fine if the formula accurately encapsulated, for the purposes of the decision about short breaks, the effect of section 149. However, first, the formula is not tailored to that decision, … Second, it does not accurately capture the effect of section 149 in the context of that decision.

  1. As I have found, members had the factual material which would have enabled them to have due regard to the statutory needs. However, they were directed to look at that material in a way that did not help them to focus on the right question, but, instead, told them to focus on an irrelevant, or at best, only partly relevant, question. Had the report only included the text of section 149(1), it might not have made councillors’ lives easy, but I could have been satisfied that they had considered the right question. The flaw in the presentation of the material is that the repeated use of the formula to which I have referred, twice with the text of section 149(1), and twice on its own. That way of presenting the equality issues unavoidably suggests that the formula is equivalent to, or a substitute for, the statutory considerations, and it is not. It does not satisfy me that members asked themselves the right question when they looked at the material officers had so diligently assembled. …
  2. … A paraphrase of the statutory test which includes some, but not all, relevant matters is not enough. Express reference to the statutory test (or an accurate paraphrase or summary, as the case may be) ensures a focus on all the factors which Parliament … has prescribed.

The Judge was critical of paragraph 60 of the judgement of McCombe LJ in R (Bracking) v SoS for Work and Pensions (2013) EWCA Civ 1345 insofar as it may have suggested that public authorities must give equal weight to equality considerations and to other “pressing circumstances”.  She said, at paragraph 41:

“41.    The practical question, or questions, posed by section 149 in relation to a particular decision will depend on the nature of the decision and on the circumstances in which it is made. It is clear from the authorities that the fundamental requirement imposed by section 149 is that a decision maker, having taking reasonable steps to inquire into the issues, must understand the impact, or likely impact, of the decision on those of the listed equality needs which are potentially affected by the decision. On appropriate facts, this may require no more than an understanding of the practical impact on the people with protected characteristics who are affected by the decision … Further, where an impact is obvious, as a matter of common sense, but its extent is inherently difficult to predict, there may be nothing wrong in making a reasonable judgment and then monitoring the outcome with a view to making any adjustments that may seem necessary: the section 149 duty is ongoing.”

 

Inspection of Documents

July 20th, 2016 by James Goudie KC in Judicial Control, Liability and Litigation

 The CPR provide that a party may inspect a document mentioned in a witness statement. This provision has been considered by the Court of Appeal in Abacha v National Crime Agency (2016) EWCA Civ 760.  Gross LJ, with whom Hamblen LJ and Sir Colin Rimer agreed, adopted the following analysis from paragraph 28:-

  1. The mere fact that a document is “mentioned” in one of the documents specified in CPR r. 31.14(1) does not automatically and without more entitle the other party to inspect it. The Court retains a discretionary jurisdiction to refuse inspection.
  2. The general rule is clear. Ordinarily, if under CPR r. 31.14(1) a document is “mentioned”, inter alia, in a witness statement, the other party has a right to inspect it. In CPR terminology, CPR r. 31.14 reflects basic fairness and principle in an adversarial system; in accordance with the overriding objective, the parties are to be on an equal footing.
  3. Thirdly, the right to inspect under CPR r. 31.14 is not, however, unqualified; it is instead subject to CPR rules based limits, which may be invoked by the party resisting inspection – the burden resting on that party to justify displacing the general rule. Thus, “proportionality” is part of the overriding objective CPR r.1.1(2)(c) and, in an appropriate case, it would be open to a party to oppose inspection on the ground that it would be “disproportionate to the issues in the case”: CPR r.31(3)(2). In determining any such issue of proportionality, a Court would very likely have regard to whether inspection of the documents was necessary for the fair disposal of the application or action. So too, the mere mention of a privileged document in (for example) a statement of case may not of itself lead to a loss of the privilege; CPR r.31.14 is to be read with and subject to CPR r.31.19(3) and (5).
  4. There is nothing to suggest that the RSC approach to confidentiality has changed under the CPR. Accordingly, while disclosure and inspection cannot be refused by reason of the confidentiality of the documents in question alone, confidentiality (where it is asserted) is a relevant factor to be taken into account by the Court in determining whether or not to order inspection. The Court’s task is to strike a just balance between the competing interests involved – those of the party asserting an entitlement to inspect the documents and those of the party claiming confidentiality in the documents. In striking that balance in the exercise of its discretion, the Court may properly have regard to the question of whether inspection of the documents is necessary for disposing fairly of the proceedings in question.
  5. There is some free-standing “necessity” test which needs to be satisfied before permitting inspection where CPR r.31.14 is otherwise satisfied. In this regard, the CPR differ from the previous regime contained in RSC O.24, though, as already demonstrated, the question of whether inspection is “necessary to dispose fairly” of the application or case is not rendered irrelevant – and may well arise in the context of proportionality or that of confidentiality. On this analysis “necessity” is or may be (depending on the facts) a relevant factor in striking the just balance; it is not a free-standing hurdle to be considered and surmounted in isolation before inspection may be permitted.

 

Town and Village Greens

July 20th, 2016 by James Goudie KC in Environment, Highways and Leisure

The importance of giving reasons for a decision to register land as a village or town green under Section 15 of the Commons Act 2006 has been emphasized by Gilbart J in R (NHS Property Services Ltd) v Surrey County Council (2016) EWHC 1715 (Admin), in which NHS Property Services Ltd (“NHS”) sought judicial review of a decision by the County Council to register a parcel of woodland (“the land”) as a village green.  The case is also of importance in relation to the question whether there is a statutory incompatibility with registration.

At all relevant times, the land had formed part of the land held by one of the various NHS bodies. The land was held for defined statutory health-related purposes. However, it had not to date been used for such purposes.  The local authority granted an application to register the land as a town or village green, having concluded that the criteria in the Act were met.  Those criteria were that “a significant number of the inhabitants of any locality, or neighbourhood within a locality, indulged as of right in lawful sports and pastimes on the land for a period of at least 20 years”.  The claimant had objected to the application, arguing, among other things, that there was an incompatibility between the statutory purposes for which the land was held and registration as a green.

Gilbart J held that:

  1. The giving of reasons was required to achieve compliance with ECHR Art 6, which was engaged as registration involved a determination of civil rights and obligations. Common law also required the giving of reasons. A landowner was at risk of losing his freedom to do as he wished with his land and needed to know whether the decision to register was made on lawful grounds and whether there were grounds for challenging it.
  2. The starting point was that the reasons given had to be intelligible and deal adequately with the substance of the arguments advanced. The local authority would need to set out whether the applicant for registration had shown that the criteria had been met and why the criteria had been met or not. In a case where an objection had been made on a ground known to law, the local authority should state whether that objection was well founded and why it was or was not well founded. The losing party should be left knowing why he had lost and the legal justification for rejecting his submissions.
  3. The claimant’s objection to registration on the basis of statutory incompatibility was well founded. It was not necessary that the land in question was incompatible with registration. Here it was. The erection of buildings or facilities to provide treatment, or the erection of buildings for the administration of those facilities, or the creation of car parking, would plainly conflict with recreational use.

 

Judicial Control, Liability and Litigation

July 20th, 2016 by James Goudie KC in Judicial Control, Liability and Litigation

The Supreme Court has held by a 5-4 majority in Willers v Joyce (Neil) [1016] UKSC 43 that the tort exists of malicious prosecution not only in relation to criminal proceedings but also in relation to civil proceedings.  The Supreme Court considered and departed from the House of Lords decision in Gregory v Portsmouth City Council [2000] 1 AC 1412, preferring the decision of the Privy Council in Crawford v Sagicon [2014] AC 366.

 

Abandoning Statutory Rights

July 20th, 2016 by James Goudie KC in Decision making and Contracts

With respect to contracting out of or waiving statutory rights, the Privy Council per Lord Clarke, enunciated the following principles in Bahamas Oil Refining Co v The Owners of the Cape Bari [2016] UKPC 20:-

  1. Someone may by their conduct contract out of or waive a provision of an Act of Parliament intended for their benefit and exclude a legal right: paragraph 23;
  2. For a party to be held to have abandoned or contracted out of valuable rights arising by operation of law the contractual provision relied upon must make it clear that this is what was intended: paragraph 31;
  3. This principle applies in very many contexts: paragraph 32;
  4. A Court is unlikely to be satisfied that valuable rights arising by operation of law have been abandoned unless the terms of the contract make it sufficiently clear that that was intended: paragraph 33;
  5. The more valuable the right, the clearer the language will need to be: ibid.

 

Target of Judicial Review

July 18th, 2016 by James Goudie KC in Judicial Control, Liability and Litigation

In the Judicial Review claim R (Southwark LBC) v LFEPA [2016] EWHC 1701 (Admin) it was contended that there were two decisions, each of which had to be addressed.  The first was a decision to retain responsibility for a decision whether or not to prosecute.  The second was said to be the decision not to change the first decision.  This contention was rejected by a Divisional Court.  Sir Brian Leveson, delivering the Judgment of the Court said, at paragraph 56:

“In our judgment, the argument is entirely misconceived: there is but one decision that requires to be assessed. Thus, the original decision continues to operate until it is brought into effect or reversed. In the absence of new facts which might justify a change of approach, a second decision is not made simply as a consequence of a refusal to change the first one. Were it otherwise, the time limit for judicial review of any decision could be re-started following a refused request to change it.”

 

Equal treatment

July 18th, 2016 by James Goudie KC in Decision making and Contracts

In Gallaher Group Limited v Competition and Markets Authority (2016) EWCA Civ 719 the Court of Appeal considered the application of the EU and common law principle of equal treatment.  Lord Dyson MR said, at paragraph 39: “In my view, the fact that one party (A) has made a request for more favourable treatment and another party (B) has not done so will rarely amount to a good reason for not treating them as being in a relevantly comparable position for the purposes of equal treatment if they are in fact otherwise in relevantly comparable positions”.

On the matter of objective justification for not replicating in favour of the appellants the approach adopted in relation to another because that approach had been mistaken, the question (paragraph 53) is whether the difference in treatment is “fair in all the circumstances”. “The fact that a decision by a public authority is mistaken is not a “trump card” which will always carry the day so as to permit the authority not to replicate the mistake regardless of the circumstances. …  the question is whether there has been unfairness on the part of the authority having regard to all the circumstances. The fact that there has been a mistake may be an important circumstance. It may be decisive. It all depends.”

Lord Dyson continued, at paragraph 54: “The law relating to legitimate expectation is of some assistance here. It is well established that a legitimate expectation cannot be relied on to require a public authority to act in breach of its statutory duty or to do something ultra vires. … But the courts have considered whether a public authority may defeat a legitimate expectation where the expectation has been created by mistake. In R v Department for Education and Employment, ex p Begbie [2000] 1 WLR 1115, 1127B-D, Peter Gibson LJ said that, where the court is satisfied that a mistake has been made, the court should be slow to fix the public authority permanently with the consequences of a mistake. But importantly, he went on to say that the question of whether the authority should be permitted to resile from a mistaken statement depends on whether that would give rise to unfairness amounting to an abuse of power. The law relating to legitimate expectation is grounded in fairness.” Longmore and Lloyd Jones LJJ agreed.

 

Repeat homelessness applications

July 18th, 2016 by James Goudie KC in Housing

The Housing Act 1996 places no limit on the number of times an applicant may make a Part VII homelessness application. In R (Hoyte) v Southwark LBC [2016] EWHC 1665 (Admin) the Court applied the House of Lords decision in R v Harrow LBC, ex p Fahia: an applicant cannot make a further application based on “exactly the same facts” as an earlier application.  If an application is “not identical” to an earlier one, there is no short cut of “non-statutory” inquiries. The statutory process must be followed.

However, the decision as to whether there are any new facts is one for the local housing authority. It is challengeable only on judicial review grounds.

 

Structural funds

July 15th, 2016 by James Goudie KC in Capital Finance and Companies

Case C-460/14, brought by the City of Wroclaw in Poland, concerns the award of a public contract for the construction of a ring road in Wroclaw. The project benefited from EU financial assistance. The City stipulated in the tender specifications that the successful tenderer was to perform at least 25% of the works covered by the contract using its own resources. The public authority in Poland competent to verify proper use of the EU funding took the view that that stipulation infringed the principle of fair competition and therefore was inconsistent with Directive 2004/18/EC.  As a consequence, that authority imposed on the City a flat rate correction of 5% of the amount of eligible costs borne by public funds. The City challenged the financial correction before a Polish Administrative Court, which made a reference to the ECJ.

Directive 2004/18 coordinated at EU level national procedures for the award of public contracts above a certain value.  It aimed to ensure the effects of the principles of freedom of movement of goods, freedom of establishment, and freedom to provide services and the principles deriving therefrom, including the principles of equal treatment, non-discrimination and transparency. It also aimed to guarantee the opening-up of public procurement to competition. The Directive contained provisions on subcontracting, in order to encourage the involvement of small and medium-sized undertakings in the public contracts procurement market.  Pursuant to the first paragraph of Article 25 (“Subcontracting”), in the contract documents, the contracting authority might ask or may be required by a Member State to ask the tenderer to indicate in his tender any share of the contract he may intend to subcontract to third parties and any proposed subcontractors. Under Article 26 (“Conditions for performance of contracts”), contracting authorities might lay down special conditions relating to the performance of a contract, provided that these are compatible with EU law and are indicated in the contract notice or in the specifications.

Article 1(1) of Council Regulation No. 2988/95 provides: “For the purposes of protecting the European Union’s financial interests, general rules are hereby adopted relating to homogenous checks and to administrative measures and penalties concerning irregularities with regard to EU law”. Article 1(2) defines “irregularity” as “any infringement of a provision of EU law resulting from an act or omission by an economic operator, which has, or would have, the effect of prejudicing the general budget of the European Union or budgets managed by it, either by reducing or losing revenue accruing from own resources collected directly on behalf of the European Union, or by an unjustified item of expenditure”.  Article 2 provides in particular that administrative checks, measures and penalties shall be introduced in so far as they are necessary to ensure the proper application of EU law. They shall be effective, proportionate and dissuasive so that they provide adequate protection for the European Union’s financial interests.

Regulation No. 1083/2006 lays down general rules governing the Funds, i.e. the European Regional Development Fund, the European Social Fund and the Cohesion Fund, including principles and rules on financial management, monitoring and control on the basis of responsibilities shared between the Member States and the European Commission.

In its Judgment on 14 July 2016 the ECJ held that Directive 2004/18 prohibited a contracting authority such as the City of Wroclaw from stipulating that the successful tenderer for a public works contract was required to perform part of those works, specified in abstract terms as a percentage, using its own resources; and that Article 98 of Regulation 1083/2006, read in conjunction with Article 2(7) of that Regulation, must be interpreted as meaning that the fact that a contracting authority imposed a requirement, in the context of a public works contract relating to a project receiving EU financial aid, that the future contractor perform by means of its own resources at least 25% of those works, in infringement of Directive 2004/18, constitutes an “irregularity” within the meaning of Article 2(7) of that regulation, justifying the need to apply a financial correction under Article 98 thereof, in so far as it cannot be excluded that that infringement had an impact on the budget of the Fund at issue. The amount of that correction must be calculated by taking into account all of the specific circumstances which are relevant in the light of the criteria referred to in the first paragraph of Article 98(2) of that Regulation, namely the nature and gravity of the irregularity and the resulting financial loss to the Fund concerned.

 

Public contract award procedures

July 15th, 2016 by James Goudie KC in Decision making and Contracts

In Case C-6/15, TNS Dimarso NV v Vlaams Gewest, Judgment on Bastille Day 2016, the ECJ has held that Article 53(2) of Directive 2004/18/EC on the coordination of procedures for the award of public works contracts, public supply contracts and public service contracts, read in the light of the principle of equal treatment and of the consequent obligation of transparency, must be interpreted as meaning that, in the case of a public service contract to be awarded pursuant to the criterion of the most economically advantageous tender in the opinion of the contracting authority, that authority is not required to bring to the attention of potential tenderers, in the contract notice or the tender specifications relating to the contract at issue, the method of evaluation used by the contracting authority in order to specifically evaluate and rank the tenders. However, that method may not have the effect of altering the award criteria and their relative weighting.

The ECJ stated the principles as follows:-

“… it should be noted that where the contracting authority decides to award a contract to the most economically advantageous tender, under Article 53(2) of Directive 2004/18, it must specify in the contract notice or the tender specification the relative weighting it gives to each of the award criteria chosen in order to determine the most economically advantageous tender. That weighting may be expressed by providing for a range with an appropriate maximum spread. Where, in the opinion of the contracting authority, weighting is not possible for demonstrable reasons, the contracting authority shall indicate in the contract notice or tender specifications or, in the case of a competitive dialogue, in the descriptive document, the criteria in descending order of importance.

As stated in recital 46 of Directive 2004/18, the purpose of those requirements is to enable all tenderers to be reasonably informed of the criteria and arrangements which will be applied to identify the most economically advantageous tender. In addition, they reflect the duty of the contracting authorities under Article 2 of the directive to treat economic operators equally and non-discriminatorily and to act in a transparent way.

According to settled case-law, the principle of equal treatment and the obligation of transparency entail, in particular, that tenderers must be in a position of equality both when they formulate their tenders and when those tenders are being assessed by the contracting authority …

Thus, the Court has held that the subject matter of each contract and the criteria governing its award must be clearly defined from the beginning of the award procedure … and that a contracting authority cannot apply, by way of award criteria, sub-criteria which it has not previously brought to the tenderers’ attention … Similarly, the contracting authority must interpret the award criteria in the same way throughout the procedure …

Those requirements apply, in principle, mutatis mutandis to contracting authorities’ obligation to indicate, in the contract notice or the tender specifications, the ‘relative weighting’ of each of the award criteria. Thus, the Court has held that a contracting authority may not, in principle, apply weighting rules which it has not previously brought to the tenderers’ attention …

In particular, the relative weighting of each of the award criteria must, subject to the third subparagraph of Article 53(2) of Directive 2004/18, be clearly defined from the beginning of the award procedure, thus enabling tenderers to establish objectively the actual importance given to an award criterion relative to another during their subsequent evaluation by the contracting authority. Similarly, the relative weighting of each of the award criteria cannot be changed throughout the procedure.

Nonetheless, the Court has accepted that it is possible for a contracting authority to determine, after expiry of the time limit for submitting tenders, weighting factors for the sub-criteria which correspond in essence to the criteria previously brought to the tenderers’ attention, provided that three conditions are met, namely that that subsequent determination, first, does not alter the criteria for the award of the contract set out in the tender specifications or contract notice; secondly, does not contain elements which, if they had been known at the time the tenders were prepared, could have affected their preparation; and, thirdly, was not adopted on the basis of matters likely to give rise to discrimination against one of the tenderers …

However, neither Article 53(2) of Directive 2004/18 nor any other provision thereof lays down an obligation on the contracting authority to bring to the attention of potential tenderers, by publication in the contract notice or in the tender specifications, the method of evaluation applied by the contracting authority in order to effectively evaluate and assess the tenders in the light of the award criteria of the contract and of their relative weighting established in advance in the documentation relating to the contract in question.

Nor is such a general obligation apparent from the case-law of the Court.

The Court has held that an evaluation committee must be able to have some leeway in carrying out its task and, thus, it may, without amending the contract award criteria set out in the tender specifications or the contract notice, structure its own work of examining and analysing the submitted tenders …

That leeway is also justified by practical considerations. The contracting authority must be able to adapt the method of evaluation that it will apply in order to assess and rank the tenders in accordance with the circumstances of the case.

In accordance with the principles governing the award of contracts provided for in Article 2 of Directive 2004/18 and in order to avoid any risk of favouritism, the method of evaluation applied by the contracting authority in order to specifically evaluate and rank the tenders cannot, in principle, be determined after the opening of the tenders by the contracting authority. However, in the event that the determination of that method is not possible for demonstrable reasons before the opening of the tenders … the contracting authority cannot be criticised for having established it only after that authority, or its evaluation committee, reviewed the content of the tenders.

In any event, pursuant to the principles governing the award of contracts … the determination by the contracting authority of the method of evaluation after the publication of the contract notice or the tender specifications cannot have the effect of altering the award criteria or their relative weighting.”

 

« Older Entries
Newer Entries »