Parks Constabulary

December 21st, 2015 by James Goudie KC in Environment, Highways and Leisure

A Council’s Parks Constable is in service as a “member of a constabulary maintained by virtue of an enactment” within the meaning of Section 200(2) of the Employment Rights Act 1996. He or she is therefore precluded from bringing a claim for unfair dismissal.  By parity of reasoning, Trade Unions representing Parks Constables are precluded by Section 280 of the Trade Union and Labour Relations (Consolidation) Act 1992 from pursuing claims for a declaration and a protective award.  In Wandsworth LBC v Viking, UKEAT/0234/13/LA, the EAT (Slade J) has held that the above holds good notwithstanding Articles 8, 11 and 14 of the European Convention of Human Rights.

The Claimants were dismissed for redundancy. It was not suggested that their selection for redundancy was for any reason which would affect their reputation, their private or professional relationships.  Redundancy, said Slade J, can be regarded as “perhaps the least blameworthy reason for dismissal”.  None of the authorities supported the proposition that dismissal of itself engages Article 8.  In her judgment the claims did not engage Article 8.  Article 14 was inapplicable because Article 8 was not engaged.  It added nothing in the circumstance where the facts of the case were not within the ambit of Article 8.  There were no Article 8 rights to be safeguarded.

As regards Article 11, the right claimed was a remedy for failing to consult the Trade Union, UNISON, over proposed redundancies. Collective bargaining over employees’ interests falls within Article 11.  Loss of employment through redundancy affects employees’ interests.  Collective bargaining over job losses falls within Article 11. While the means of affording unions their Article 11 rights are left to Member States, Article 11 requires that they be given the means of enforcing those rights.  The UK has chosen consultation as the means of Trade Unions protecting employees’ interests in a redundancy situation.  Unlike representation of other local authority employees, the Claimants had been deprived of that right.  Accordingly, subject to Article 11.2, Article 11, taken together with Article 14, was engaged by the claims for protective awards.

The question therefore was whether the restriction on the exercise of rights by members of the police was lawful. This requires the restriction to be, amongst other things, proportionate.  The EAT was not in a position to rule on proportionality.

 

Social Care

December 21st, 2015 by James Goudie KC in Social Care

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.

 

Byelaws

December 21st, 2015 by James Goudie KC in Elections and Bylaws

R (Barda) v Mayor of London (2015) EWHC 3584 (Admin) concerned Byelaws made by the Greater London Authority with respect to erecting and maintaining fencing around Parliament Square Garden (“PSG”), and their compatibility with Article 10 (freedom of expression) and Article 11 (freedom of association) of the European Convention of Human Rights.

Garnham J said, at paragraphs 90 and 91, that it follows from the authorities that place, manner and form of assembly and expression of views may be important in determining whether there has been an infringement. However, they are not necessarily so. The caselaw is certainly not authority for the proposition that a protester’s choice of place and form must always be respected. The authorities responsible for PSG must not always accommodate a protest in precisely the form the protester prefers.  The Court must take account of the form, place and mode of the protest along with all the surrounding circumstances in deciding whether the actions of the State constitute a real interference with the exercise of the rights.

The Judge found that there was an interference. The question therefore was whether that interference was justified.

The scope of the GLA’s powers to manage and regulate PSG was broad. Those powers were more than sufficient to permit the erection of fences as a means of managing and regulating the use of PSG.  The interference also pursued a legitimate aim. The fact that the aims changed over time and sometimes covered more than one objective was nothing to the point. The care and maintenance of the physical space, the prevention of disorder, the protection of the rights of others (both those who also wanted to protest and those who simply wanted to enjoy the amenity of the gardens) are all legitimate aims. Those were genuine aims of the GLA at various points during the history.  All of that meant that the critical question was whether the interference was proportionate.

The burden of proof of justification was on the Defendant. This was not a Wednesbury challenge where a degree of deference was due to the decision maker. The Court has to put itself in the position of the GLA at each material stage and ask whether the GLA have satisfied the Court that their response was proportionate given what they knew at the time. It would not be correct to take into account what has become known since the decision being considered, but which could not have been known at the time.

The Judge addressed five issues that were relevant to justification: first, the extent of the interference; second, prior restraint; third, prior authorisation; fourth statutory sanctions and controls; and fifth public liability insurance.

As to the first, although there was an interference, it was far from total. There was some interference with rights of expression and assembly, but that interference was limited.

As to the second, the fencing did amount to a form of prior restraint. However, this was partial restraint.

Third, it is not a breach of Articles 10 or 11 to require prior authorisation for demonstrations or protests.

At paragraph 107, Garnham J said:-

“Those organising demonstrations, “as actors in the democratic process”, should respect the rules governing conduct of demonstrations by complying with the regulations in force. A failure to do so demonstrates a disregard of the rights and freedoms of others and of the need to manage those competing rights sensibly if they are to be enjoyed to the greatest extent possible. Of course the Convention imposes obligations on contracting states not individuals, but if the individual does not play his part a greater latitude must be allowed to the state in the way it responds.”

At paragraph 108, Garnham J said:-

“Failure to obtain authorisation will not negate the rights under Articles 10 and 11. However, in my judgment, it will be relevant in judging the proportionality of the State’s response.”

As to the fourth point, statutory sanctions, the Judge said that the corollary of the State’s entitlement to require prior authorisation was the right of the State to impose sanctions if that authorisation is not obtained. Sanctions were not limited to those provided by the Police Reform and Social Responsibility Act 2011.  That Act does not establish an exclusive scheme for responding to demonstrations in PPSG. The power for the GLA to make Byelaws governing the management and regulation of PSG remains. The Judge also made observations in relation to public liability insurance; and concluded that justification was established.  He said:-

“123.     In my judgment, of central significance in this case was the measured and graduated approach adopted by GLA to the threats of periodic occupation of PSG. Alternative responses, including polite requests, then removals, then arrest and prosecution of individual protesters, were tried without success. The Square was roped off, then part of it was fenced off, then most of it was fenced off. When the likelihood of occupation diminished then the fencing came down.

  1. The response waxed as the threat to the Square increased and waned as it subsided. In my judgment, it was the very definition of a proportionate response.”

 

Partnership Arrangements: Wales

December 18th, 2015 by James Goudie KC in Social Care

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.

 

Extensions of Time

December 17th, 2015 by James Goudie KC in Judicial Control, Liability and Litigation

In Bromley LBC v Heckel [2015] EWHC 3606 (TCC) Edwards-Stuart J held that it was not appropriate to extend a claimant local authority’s time for service of Particulars of Claim (pursuant to an application made before the time for service of the Particulars of Claim had expired) where the authority (1) had not issued proceedings until the last minute and (2) could have pleaded an arguable case against the defendant project manager within the time required by the rules (or the Claim Form would have been an abuse of the process of the Court if the claimant was unable to set out the nature of the case that it intended to make).  The Court’s discretion would not be exercised in the claimant’s favour.  Parties who issue late are “obliged to act promptly and effectively”.

 

Ineffective Contract

December 17th, 2015 by James Goudie KC in Decision making and Contracts

 In Lightways (Contractors) Limited v Inverclyde Council [2015] CSOH 169 the Outer House of the Court of Session made a declaration of ineffectiveness in respect of the award of a street lighting call-off contract to an economic operator which was not a party to the relevant framework agreement, albeit it was a company in the same group as a party to that agreement.

 

Deciding What Is Most Appropriate

December 15th, 2015 by James Goudie KC in Decision making and Contracts

Section 22C(5) of the Children Act 1989 requires a local authority to place a child in the placement which, in the authority’s opinion, is “the most appropriate placement available”. Must the authority consider all placements available at the relevant time and search for a placement with every potential provider?  No, ruled William Davis J in R (Nationwide Association of Fostering Providers v Bristol City Council and Others [2015] EWHC 3615 (Admin).  He held (paragraph 44) that: “No duty is imposed to ensure that there are independent providers as well as in-house providers”, and (paragraph 45) that: “No specific requirements are made of a local authority in relation to the “most appropriate placement”.”

The Judge concluded (paragraph 59) that the statutory duty did not require a local authority to contact all providers of potentially appropriate placements at the same time for every “looked after” child, for reasons including that:-

– The duty is not a procedural duty. It is an outcome duty. How a local authority goes about fulfilling that duty is a matter of policy within the discretion of the local authority subject to any express regulatory provisions.

– The word “appropriate” of itself implies an exercise of judgment by a local authority. Moreover, the judgment is one subject to the “opinion” of the local authority.

– The statutory provisions require a local authority to make decisions in relation to “looked after” children in its care in such a way as to safeguard and promote their welfare. They do not set out precisely how a local authority should make such decisions.

 

Highway Authority Duty

December 11th, 2015 by James Goudie KC in Environment, Highways and Leisure

In Rollinson v Dudley MBC [2015] EWHC 3330 (QB) Haddon-Care J held that local highway authorities do not have a duty under Section 41(1) of the Highways Act 1980 to ensure that its roads, pavements and footpaths are clear of moss, algae, lichen or similar vegetation.  The Judge summarised the relevant principles as follows (paragraph 24): (1) the Section 41(1) duty, to maintain the highway, is properly to be understood as being to “repair” and “keep in repair” the highway; (2) the duty does not include a duty to remove surface-lying material, accretions, obstructions or spillages, whether or not dangerous; and (3) the duty does include a duty to keep the drains and substructure of the highway clear and in good repair.  The Judge held (paragraph 27) that none of those applicable principles or criteria applied in the case before him: (1) moss or algae is, by its nature, to be regarded as transient rather than permanent; (2) the presence of moss or algae cannot be said to amount to, or comprise, material “disturbance or damage” to a road, pavement or pathway or the surface thereof; and (3) moss or algae cannot be said to have become part of the “fabric” of the road, pavement or pathway.

 

Disability Discrimination

December 11th, 2015 by James Goudie KC in Human Rights and Public Sector Equality Duty

As is well known, the relevant law on disability discrimination is now found in the Equality Act 2010, which replaced provisions formerly contained in the Disability Discrimination Act 1995. The Equality Act gives effect to the United Kingdom’s EU obligations under Directive 2000/78/EC (“the Equality Directive”). The principle of equal treatment prohibits discrimination on certain prescribed grounds, such as race, sex and sexual orientation, and these include disability. The structure of the Act is that it defines the meaning of discrimination and then identifies the circumstances when it is unlawful. There are four forms of disability discrimination: direct discrimination (Section 13), indirect discrimination (Section 19), discrimination arising from disability (formerly called disability-related discrimination) (Section 15), and a failure to make reasonable adjustments (Section 20). The direct and indirect discrimination principles apply to all the prescribed characteristics, but the reasonable adjustments duty and the duty not to commit discrimination arising out of disability are unique to disability cases. They are a recognition of the fact that the difficulties faced by disabled workers are very different from those experienced by people subjected to other forms of discrimination. These two duties unique to discrimination therefore secure more favourable treatment and are closely interrelated.

Section 20 of the Act, the duty to make reasonable adjustments, which requires affirmative action in certain situations, was relied upon in Griffiths v Secretary of State for Work and Pensions [2015] EWCA Civ 1265.  The effect of Section 21 is that a failure to comply with the Section 20 duty to make reasonable adjustments amounts to an unlawful act of discrimination.

From paragraph 22, Elias LJ addressed the relationship of Section 20 to other forms of disability discrimination. He drew attention to various matters, including that the definition of discrimination arising out of disability does not involve any comparison with a non-disabled person; it refers to unfavourable treatment, not less favourable treatment; and that it is perfectly possible for a single act of the employer, not amounting to direct discrimination, to constitute a breach of each of the other three forms.

Elias LJ, at paragraph 48, ruled that it was an error to assume that the ruling of the House of Lords in Lewisham LBC v Malcolm [2008] UKHL 43, (2008) 1 AC 1399, which was concerned with the nature of the appropriate comparison under the old concept of disability-related discrimination, is applicable to the obligation to make reasonable adjustments. That comparison is inapt in the case of the adjustment duty.

 

Pension Liability

December 11th, 2015 by James Goudie KC in Judicial Control, Liability and Litigation

When is there an entitlement to early payment of an unreduced pension pursuant to Regulation 19 of the Local Government Pension Scheme (Benefits, Membership and Contributions) Regulations 2007, SI 2007/1166, as amended?  Regulation 19(1) provides that where a LGPS member is dismissed, either by reason of redundancy or because his employing authority has decided that, “on the grounds of business efficiency”, it is in their interests that he should leave their employment, and, in either case, the member has attained the age of 55, he is entitled to immediate payment of retirement pension, without reduction.  What is meant by “grounds of business efficiency”?  In Ascham Homes Ltd v Auguste [2015] EWHC 3517 (Ch) Hildyard J held that, in the absence of a settled definition, it fell to the employing authority to decide whether the grounds for the cessation of employment constituted “grounds of business efficiency”.  If the employer did not make any determination, then the true grounds of its decision to terminate the member’s employment had to be investigated.  The test whether the appellant’s decision was on grounds of business efficiency was whether it was made pursuant to some change in the way of conducting the business with a view to ensuring that its resources could be more efficiently deployed, without regard to personal or subjective characteristics or the performance of the post-holder.  Although Regulation 19 did not require the cessation of service to be exclusively on the ground of “business efficiency”, that had to be the preponderant reason.

It is to be noted that a somewhat similar concept, termination of employment “in the interests of the efficient exercise of the employing authority’s functions” appears in Regulation 4 of the Local Government (Early Termination of Employment) (Discretionary Compensation) (England and Wales) Regulations 2006, SI 2006/2914.

 

« Older Entries
Newer Entries »