Public Health

November 11th, 2016 by James Goudie KC in Local Authority Powers

The appeal has been dismissed in National Aids Trust v NHS Commissioning Board and the Local Government Association [2016] EWCA Civ 1100.  NHS England does have the power to commission an anti-retroviral drug for use on a preventative basis for those at high risk of contracting HIV.  The question at the root of the appeal was out of whose budget the cost of medication is to be paid: the budget of NHS England; or that of local authorities.  The answer is NHS England.  This is because it is not a public health function for the purposes of the Health and Social Care Act 2012.  However, it is not possible to draw the dividing line between public health and non-public functions neatly along the lines between the prevention of ill-health and its treatment. There is no simple criterion for defining the boundaries of public health functions in a borderline case.  However, in circumstances where public health functions are not defined and the boundary line between local authority public health functions and NHS non-public-health functions is not clearly drawn in the primary legislation, it is legitimate to refer to where it is drawn in the related secondary legislation.

 

Listed Buildings/ Reasons

November 7th, 2016 by James Goudie KC in Planning and Environmental, Social Care

A LPA has a duty under Section 66(1) of the Planning (Listed Buildings and Conservation Areas) Act 1990 to have “special” regard to the desirability of preserving the listed building and its setting. In Palmer v Hertfordshire Council (2016) EWCA Civ 1061 the Court of Appeal held, consistently with paragraphs 132 and 136 of the NPPF, that (i) the concept of preserving the listed building or its setting means “doing no harm”, (ii) that could include not only encroachment or visual intrusion but also noise and smell, and (iii) if there is harm that must be given considerable importance and weight, but (iv) the weight to be given is not uniform and will depend on, amongst other things, the extent of the assessed harm and the heritage value of the asset in question, (v) the degree of harm and appropriate mitigation measures are a matter for the judgment of the LPA, and (vi) the existence of the statutory duty does not alter the approach that the Court should take to an examination of the reasons for the decision given by the decision maker.  The Court of Appeal upheld a grant of permission for poultry boiler units to be erected close to a disused railway station, that is a Grade II listed building.  The Court at paragraphs 7 and 8 set out the approach to the examination of reasons and to the reading of an officer’s report, as follows:-

“7.      The existence of the statutory duty under section 66(1) does not alter the approach that the court takes to an examination of the reasons for the decision given by the decision maker: Jones v Mordue [2015] EWCA Civ 1243; [2016] 1 WLR 2682. It is not for the decision maker to demonstrate positively that he has complied with that duty: it is for the challenger to demonstrate that at the very least there is substantial doubt whether he has. Where the decision maker refers to the statutory duty, the relevant parts of the NPPF and any relevant policies in the development plan there is an inference that he has complied with it, absent some positive indication to the contrary: Jones v Mordue at [28]. In examining the reasons given by a local planning authority for a decision, it is a reasonable inference that, in the absence of contrary evidence, they accepted the reasoning of an officer’s report, at all events where they follow the officer’s recommendation: R (Fabre) v Mendip DC (2000) 80 P&CR 500, 511; R (Zurich Assurance Ltd) v North Lincolnshire Council [2012] EWHC 3708 at [15].

8.        In reading an officer’s report, the court must not impose too demanding a standard: R (Morge) v Hampshire County Council [2011] UKSC 2, [2011] 1 WLR 268 at [36]. Such reports are addressed to a knowledgeable readership including members of the planning committee who, by virtue of that membership, may be expected to have substantial local and background knowledge. That background knowledge includes a working knowledge of the statutory test for determination of a planning application: R (Zurich Assurance Ltd) v North Lincolnshire Council at [15]. Where a claim for judicial review is based on alleged deficiencies in an officer’s report to the planning committee it normally needs to be shown that the overall effect of the report significantly misleads the committee about material matters which remain uncorrected at the meeting of the planning committee before the relevant decision is taken: Samuel Smiths Old Brewery (Tadcaster) v Selby District Council (18 April 1997). The ultimate test is whether the reasons enable the reader to understand why the matter was decided as it was and what conclusions were reached on the principal important controversial issues. The reasoning must not give rise to a substantial doubt (as opposed to what has been called a “forensic doubt”) as to whether the decision maker erred in law, although such an inference will not be readily drawn: South Bucks DC v Porter (No 2) [2004] UKHL 33, [2004] 1 WLR 1953 at [36].”

 

 

Allotments

November 3rd, 2016 by James Goudie KC in Environment, Highways and Leisure

R (Moore) v SoS for CLG and Watford Borough Council (2016) EWHC 2736 (Admin) is an unsuccessful review challenge to a decision of the SoS to grant consent to the Council under Section 8 of the Allotments Act 1925 for the appropriation under Section 122 of the Local Government Act 1972 of allotment land for use as part of a redevelopment scheme.

The SoS could grant consent only if that was justified by exceptional circumstances. Lang J rejected the Claimant’s submission that the SoS could not rely on the cumulative weight of individual factors in support of a finding of “exceptional circumstance” unless each factor amounted to an exceptional circumstance taken on its own.  She also rejected the Claimant’s submission that the SoS had failed to apply the policy in his Guidance.  On ECHR A1P1 and proportionality, the Judge found that (1) there was a legitimate aim (the benefits of the scheme), (2) the grant of consent was rationally connected to that legitimate aim, (3) that legitimate aim could not have been achieved by a less intrusive measure, and (4) on a fair balance, the benefits of achieving the aim by the measure outweighed the disbenefits resulting from the restriction of the relevant protected right.  Lang J concluded:-

“In my judgment the Secretary of State was correct to hold that the interference with the A1P1 rights of the allotment holders was justified and proportionate because of the wider public benefits to be gained by incorporation of the Allotments into the Scheme.  Given the allocation of new allotments nearby, the assistance to re-locate, and financial compensation to the allotment holders, I consider that a fair balance has been struck.”

 

 

Social Care

November 2nd, 2016 by James Goudie KC in Social Care

In Rotherham MBC v M and others (2016) EWHC 2660 (Fam) Cobb J held that it was appropriate to make a reporting restriction order sought by the Council and the Police preventing the identification not only of a very vulnerable teenage girl who was at risk of sexual exploitation but also of four adult males who had associated with her, but against whom no findings of sexual exploitation had been made. This was because naming these males risked “jigsaw identification” to the vulnerable girl.  Cobb J concluded:-

“45.    As I have indicated earlier in this judgment, there is a significant public interest in the investigation and detection of child sexual exploitation, in the state’s protection of its victims, and in the prosecution of those who perpetrate it. There is national public interest in the incidence (indeed the prevalence) of this crime in the area of Rotherham. For this reason, I decided that it would be right to hold the final hearing of these applications in public, and to name the relevant council. I have no doubt that the media have an important part to play in raising public awareness of this particular type of offence, and in reporting on the court’s approach to it.

46.    It is rightly uncontroversial in this case that Child G’s identity should be protected now and for the future. She is an extremely vulnerable young person; it would be devastating to her to be named publicly in the press as the subject of this application, and a strong deterrent to other young people who may consider coming forward to report offending of this type. Having listened carefully to the evidence of the relevant senior officers, I am satisfied that if I named the associated males, Child G would be quickly identified in the local community in which she lives. That is sufficient on its own to justify the anonymity of the four males. However, quite apart from that factor, I have reached the firm conclusion that there is no true public interest in naming the four associated males, against whom, in the end, no findings have been sought or made. The Article 8 rights of the associated males would be in my judgment significantly violated were they to be publicly exposed in the media as having been implicated to a greater or lesser degree, but not proved to be engaged, in this type of offending. Their rights, on these facts, predominate over the Article 10 rights of the press to report their names while not inhibiting the press from reporting more widely about this case. I have cross-checked these conclusions against the measure of proportionality and have unhesitatingly concluded that no lesser order will suffice; the injunction will therefore extend for their lives until or unless earlier varied or discharged.”

 

 

Secure Tenancy

November 2nd, 2016 by James Goudie KC in Housing

 

The Housing Act 1985 does not permit a second succession to a secure tenancy to members of a deceased secure tenant’s family. In Holley v Hillingdon LBC (2016) EWCA Civ 1052 the Court of Appeal considered when a proportionality defence can be raised to a possession claim.  Length of residence might form part of an overall ECHR Art 8 proportionality assessment.  However, it was unlikely to be a weighty factor.  Briggs LJ (with whom Arden and Underhill LJJ agreed) said:-

9. “… The general principles which govern the application of Article 8 to a claim for possession by a local authority of property forming part of its social housing stock from a person with no other right to be there are well settled, by the twin decisions of the Supreme Court in Manchester City Council v Pinnock [2011] 2AC 104 and Hounslow London Borough Council v Powell [2011] 2AC 186.

10. The application of those principles to a claim for possession against a surviving member of the family of a deceased secure tenant by succession occupying the property (after notice to quit) as a trespasser are fully set out and explained by this court in Thurrock Borough Council v West [2012] EWCA Civ 1435; [2013] HLR 5, in the judgment of Etherton LJ, at paragraphs 22 to 31. The general principles set out at paragraphs 22 to 26 need no repetition. In outline, the local authority will usually be seeking eviction as a proportionate means of achieving a legitimate aim because it will thereby vindicate its own unencumbered property rights, and enable it to comply with its duties in relation to the distribution and management of scarce social housing stock.”

“15. … I consider that the true analysis is as follows. First, a person seeking to rely on Article 8 will need to demonstrate a minimum length of residence in order to show that the property in question is their home, so that Article 8 is engaged. Secondly, the period of residence, however long, will not on its own be sufficient to found an Article 8 proportionality defence in the second succession context because, if it would, then it is hard to see how the English statutory prohibition of second succession could be compatible with the Convention.

16. Thirdly, length of residence may form part of an overall proportionality assessment, in the sense that all the circumstances of the case may need to be reviewed, and their effect considered in the aggregate. But fourthly, and precisely because Parliament has lawfully excluded second succession to members of a deceased secure tenant’s family, length of residence is unlikely to be a weighty factor in striking the necessary proportionality balance. A long period of residence may therefore form part of the circumstances, viewed as a whole, but is, in itself, of little consequence.”

“23. …  the concept of a discretionary succession policy is a misnomer. The provisions in Part IV of the Housing Act 1985 which deal with succession to secure tenancies do not require, or for that matter permit, local authorities to formulate and apply discretionary policies for conferring rights of second succession on persons living in the house of a secure tenant who is already a successor, upon that tenant’s death. There is, quite simply, no such entitlement. By contrast, Part VI of the Housing Act 1996 confers a wide discretion upon local authorities as to the allocation of social housing among persons applying for it, and requires that discretion to be exercised in accordance with an allocation scheme which it is required to formulate and publish.

24. A housing authority allocation scheme may make particular provision in relation to priority for members of the family of deceased secure tenants who do not have succession rights, but they are not required to do so. …”

 

Homelessness

November 2nd, 2016 by James Goudie KC in Housing

A local housing authority may refuse to accept an application for assistance under Section 183 of the Housing Act 1996 only where it is a further application based upon exactly the same facts as a previous application: so held by the House of Lords in R v Harrow LBC, ex p Fahia [1998] 1 WLR 1396.  This test has been considered in R (Abdulrahman) v Hillingdon LBC (2016) EWHC 2647 (Admin), where the Judge said:-

“39.    In my judgment it is not appropriate to subject a local authority’s decision not to accept an application under Part VII of the 1996 Act to the same sort of analysis as may be applied to a contract drafted by solicitors, to an Act of Parliament, or to a court’s judgment. It is also important that the letter or letters by which such decisions are communicated should be considered as a whole.”

Nonetheless, the Judge held that the authority had acted irrationally in deciding that the test was satisfied. There were new facts relevant to an application for assistance. The changes relied upon were not fanciful or trivial. The new application was not based upon “exactly the same facts” as the earlier application. They were indeed clearly different.

 

Legitimate expectation

October 25th, 2016 by admin in Decision making and Contracts

In Infinis Energy Holdings Ltd v HM Treasury (2016) EWCA Civ 1030 the Court of Appeal held that the decision to remove the exemption for renewable source energy from the climate change legacy did not breach the EU principles of legitimate expectation and proportionality. In order to give rise to a legitimate expectation there had to be an undertaking, or an assurance that was precise, unconditional, consistent and lawful, not a vague indication, and the expectation had to be reasonable.

 

AARHUS

October 25th, 2016 by admin in Planning and Environmental

For the purposes of Aarhus Convention protection, “environment” is to be given a “broad meaning” : per Patterson J in R (Dowley) v SoS (2016) EWHC 2618 (Admin).

 

Revocation of bylaws

October 24th, 2016 by James Goudie KC in Elections and Bylaws

DCLG have issued Model Revocation Byelaws and Guidance thereon.

 

 

Public sector equality duty

October 24th, 2016 by James Goudie KC in Human Rights and Public Sector Equality Duty

In R (Ghulam) v SSHD (2016) EWHC 2639 (Admin) Flaux J held at paras 329/330 that (1) what is required is a realistic and proportionate approach to evidence of compliance with the PSED, not micro-management or a detailed forensic analysis by the Court, (2) the PSED, despite its importance, is concerned with process, not outcome, and the Court should interfere only in circumstances where the approach adopted by the relevant public authority is unreasonable or perverse, and (3) it is not for the Court to substitute its decision as to the weight to be given to equality considerations and the statutory criteria if satisfied that the decision maker has complied with its duty.

 

« Older Entries
Newer Entries »