Delegation

June 24th, 2014 by James Goudie KC in Decision making and Contracts

In order to comply with the provisions in Section 101 of the Local Government Act 1972 with respect to delegation of functions to officers, it is not essential for the scheme of delegation actually to identify the officers.  Lewis J in R (Pemberton International Ltd) v Lambeth LBC [2014] EWHC 1998 (Admin) holds, at paragraph 53, that it suffices that the scheme “sets out the process by which the officers authorised to exercise certain functions can be identified”.  This may be “a certain group of officers”.

 

Consultation

June 19th, 2014 by James Goudie KC in Judicial Control, Liability and Litigation

R (Stirling) v Haringey LBC [2013] EWCA Civ 116, (2013) LGR 251, is now entitled R (Moseley) v Haringey LBC. The authority consulted upon a Council Tax Reduction Scheme (CTRS). Following the consultation, the Government announced a Transitional Grant Scheme (TGS). The authority adopted a CTRS without re-consultation, claiming that the TGS did not affect the draft scheme. The consultation process was alleged to be unfair and unlawful because (1) consultees had not been provided with sufficient information to understand that there were alternatives to the draft scheme; and (2) the Respondent should have re-consulted when the TGS was announced.

On 19 June 2014 the Supreme Court heard an appeal from the decisions of the High Court and the Court of Appeal rejecting that argument.  The issues before the Supreme Court are:  (i) the extent of the duty to consult set out in paragraph 3(1)(c) of Schedule 1A to the Local Government Finance Act 1992 in respect of Council Tax Reduction Schemes; (ii) whether the authority was required to provide information to consultees on alternative options to its preferred proposal in circumstances where those alternatives were reasonably obvious; and (iii) whether the authority was required to draw consultees’ attention to a new factor which emerged during the course of the consultation process.  This is remarkably the first occasion on which the Supreme Court has considered the public law principles which govern the content of the duty to consult.

 

Bringing Proceedings

June 19th, 2014 by James Goudie KC in Local Authority Powers

As is well known, Section 222(1) of the Local Government Act 1972 authorises a local authority to prosecute (or defend or appear in) “any” legal proceedings, where they consider it “expedient for the promotion or protection of the inhabitants of their area”.  In Oldham MBC v Worldwide Marketing Solutions Ltd [2014] EWHC 1910 (QB) the High Court held that the authority had been fully entitled to conclude that proceedings, against a trader who had given but then breached an undertaking not to use misleading advertising in selling to other traders, was expedient in the interests of the inhabitants of their area, notwithstanding that the trader had subsequently left that area.  Phillips J said:-

“24.       … There were both broad policy reasons and specific aspects of this case which, individually, and certainly if considered cumulatively, justified such a conclusion.

25.        First, the inhabitants of an area have a clear and obvious interest in the local authority taking reasonable steps to procure that undertakings it has extracted from traders (such as that given by the defendants in this case) are enforced through proceedings where breached. If such steps are not taken, and undertakings are seen to be breached with impunity, the force and utility of such undertakings will be undermined, lessening their effect and usefulness and consequently leading to greater expense in taking proceedings instead of or in addition to accepting undertakings. It follows that a local authority can properly take the view that it is in the interests of the inhabitants of its area to bring (and to be seen to be bringing) proceedings against a trader who has given but then breached an undertaking, even if the trader has subsequently left the authority’s area.

26.        Second, given the timing of WMSL’s re-location (shortly after the search warrant was executed at its Oldham premises), the short distance the business moved and Mr Kay’s continued connections with the Oldham area, the Council was entitled to perceive a real risk that WMSL would return to its Oldham area in the foreseeable future.

27.        Third, the Council was entitled to take into account the likelihood (if not inevitability) that WMSL’s future sale business, whilst conducted nationally, would include sales calls to businesses based in Oldham. Whatever the content and merits of the four complaints which had been received from Oldham based businesses, their existence demonstrate that businesses in Oldham are by no means excluded from the scope of WMSL’s sales calls. If the Council were considering the matter afresh and in isolation, there might be a question as to whether the risk to local businesses justified taking proceedings. But where the Council had already investigated sales practices in question, obtained undertakings and executed a search warrant to establish ongoing breaches, it could readily conclude that the final step of obtaining an injunction was justified to protect the interests of its inhabitants.

28.        As has been emphasised in the authorities referred to above, s.222(1) is widely worded, imposing no express restriction on what a local authority may properly consider to be expedient to promote or protect the interests of its inhabitants. … there is no basis for limiting the matters the local authority may consider to activities taking place within the relevant area or directly affecting its inhabitants. … The fact that future legislation may permit a local authority to act outside its area without express restriction does not mean that such an authority cannot currently do so where it considers it expedient to do so in the interests of its inhabitants, as permitted by s.222(1).”

 

Council Tax

June 9th, 2014 by James Goudie KC in Council Tax and Rates

SC v East Riding of Yorkshire Council and CW v East Riding of Yorkshire Council, Valuation Tribunal, 27 May 2014, were the first relating to council tax discretionary relief under the Local Government Finance Act 1992 heard since the Local Government Finance Act 1992 had replaced council tax benefit with the requirement for each local billing authority to have a council tax reduction scheme.  They provided the opportunity to consider and define the nature and scope of such appeals.  At paragraph 5 of the decision the President of the Tribunal, Professor Graham Zellick QC, noted that (i) discretionary relief is applicable both to those who have been awarded a reduction under a council tax reduction scheme and those who have not, (ii) as schemes must stipulate a procedure for applying for a reduction, authorities must consider every such application on its merits, and (iii) whereas there must be a formal published scheme for council tax reduction, there is no requirement for a scheme governing discretionary relief, unless there has been a determination that a class of case is to be reduced in accordance with that determination.

At paragraph 16 the President stated that his own Practice Statement, Council Tax Reduction Appeals, was incorrect.  It is to be amended and reissued.

At paragraph 23, the President stated that the Tribunal’s approach is the same as in every other appeal.  He stated as follows (emphasis added):-

“24.    Thus, it is for the appellant to raise doubt as to the correctness of the authority’s decision and to argue what the correct decision should have been. The authority may then defend its decision and the panel will decide the appeal on the balance of probabilities. There is no inhibition on the Tribunal’s substituting its view for that of the authority, but any such substitution must be soundly and solidly based.

25.     The following points … are designed to assist billing authorities, council tax payers and Tribunal members and clerks in dealing with these appeals:

(1)        The focus of an appeal as opposed to a review is fundamentally different: full appeal reaches further and assesses the actual merits of the decision reached.

(2)        Some deference should, however, be paid to the view of the original decision-maker and an effort made to understand how that decision was arrived at, but that cannot prevent the Tribunal from substituting its view for that of the authority provided that the Tribunal can articulate cogently why it is doing so and how it has arrived at its conclusion.

(3)        The authority’s decision does not have to be unreasonable in the Wednesburysense before it can be set aside, but the Tribunal should intervene only where there are strong grounds for doing so.

(4)        It may not be an exact parallel, but the Court of Appeal will allow an appeal against sentence only where the sentence is wrong in principle. This suggests that some restraint should be exhibited by the Tribunal before disturbing a billing authority’s decision.

(5)        Procedural defects may recede in importance, or be completely effaced, since the Tribunal will be chiefly concerned with the actual merits of the decision. Earlier defects in process may therefore be cured or superseded by the appeal, and a decision may be adjudged correct despite defects in process.

(6)        Although a scheme or policy is not required by statute, it is difficult to see how such an open-ended discretion can be satisfactorily exercised in the absence of one.

(7)        Any such policy should be scrutinised by the authority’s lawyers before promulgation.

(8)        Compliance with a formal published policy or scheme, if there is one, cannot preclude the Tribunal from allowing an appeal.

(9)        Any such scheme is not immune from challenge in the Tribunal as, for example, is a council tax reduction scheme… . It is not the Tribunal’s business to impugn any scheme as such but rather that its own powers cannot be inhibited or circumscribed by a scheme.

(10)      Failure to comply with a substantive element of a scheme to the detriment of the applicant is likely to lead to the overturning of the decision unless there are good reasons for having departed from it.

(11)      However, compliance with a scheme or policy may help in persuading the Tribunal that the original decision was correct.

(12)      The Tribunal should be slow to interfere with a decision that properly flows from a determination made under section 13A(7).

(13)      An authority cannot as a matter of law fetter its discretion and must therefore consider every application on its merits whatever the policy or scheme says.

(14)      Suppose, for example, there is a provision that non-essential expenditure should be disregarded when calculating legitimate outgoings and determining disposable income. The Tribunal could conclude that the item was wrongly so characterised and should be included. Or that on its specific facts it should be included. Thus, mobile phones might normally be treated as a luxury but might become a necessity if the appellant is a carer who might need to be contacted urgently when not at home. Or a subscription to a satellite television service might have to be accepted if the appellant is locked into a contract that pre-dates his financial difficulties.

(15)      A factor which cannot have any relevance for the Tribunal is an overall budget created by the authority for the totality of discretionary applications in a given year so that any application will be considered in relation to the available budget and once that sum is exhausted no further applications can be granted. I do not see how in law this can be a cash-limited exercise. The merits of an appeal cannot be affected by the existence of any such budget. A “budget” is in any event a somewhat artificial concept in view of the fact that the authority is forgoing income and not spending existing funds.

(16)      Where the Tribunal is minded to allow the appeal and order a recalculation but is unsure of the actual amount to substitute, the appeal may either be adjourned for the parties to supply whatever further information is needed to reach a decision or it may conclude the appeal by quashing the calculation and ordering the authority to recalculate properly. The former is likely to be the better course in most cases.”

 

Restrictions on Freedom of Expression

May 21st, 2014 by James Goudie KC in Standards

Heesom v Public Service Ombudsman for Wales [2014] EWHC 1504 (Admin) is a statutory appeal to the Administrative Court in Wales from the Adjudication Panel for Wales.  It concerns a long standing Councillor about whose conduct a complaint was submitted to the Ombudsman by all Flintshire County Council’s Senior Officers.  The Ombudsman referred to the Panel alleged breaches of the Council’s Codes of Conduct.  A Case Tribunal found 14 breaches established and imposed a sanction of disqualification.

Mr Heesom challenged the Tribunal’s decision on three grounds, namely:-

  1. The Tribunal erred in adopting the wrong standard of proof, i.e. the civil as opposed to the criminal standard;
  2. The Tribunal erred in its findings as to breaches of the Codes of Conduct; and
  3.  Insofar as its findings of breach were properly made, the Tribunal erred in finding that they were such as to justify the sanction imposed.

    The appeal thus gives rise to the following important issues:-

  1. The appropriate standard of proof in an adjudication by a Case Tribunal of the Adjudication Panel for Wales; and
  2. The scope of and legitimate restrictions to a politician’s right of freedom of expression under Article 10 of the European Convention for Human Rights (“the ECHR”) and at common law, particularly in relation to officers’ rights and interests which might be adversely affected by the purported exercise of those rights.

    As to (1), Hickinbottom J held that the appropriate standard of proof was the civil standard.

    As to (2), Hickinbottom J formulated the following propositions:-

  1. The enhanced protection accorded to freedom of expression in the political sphere applies to all levels of politics, including local.
  2. Article 10 protects not only the substance of what is said, but also the form in which it is conveyed. Therefore, in the political context, a degree of the immoderate, offensive, shocking, disturbing, exaggerated, provocative, polemical, colourful, emotive, non-rational and aggressive, that would not be acceptable outside that context, is tolerated.  Whilst, in a political context, Article 10 protects the right to make incorrect but honestly made statements, it does not protect statements which the publisher knows to be false.
  3. Politicians have enhanced protection as to what they say in the political arena; but Strasbourg also recognises that, because they are public servants engaged in politics, who voluntarily enter that arena and have the right and ability to respond to commentators (any response, too, having the advantage of enhanced protection), politicians are subject to “wider limits of acceptable criticism”. They are expected and required to have thicker skins and have more tolerance to comment than ordinary citizens.
  4. Enhanced protection therefore applies, not only to politicians, but also to those who comment upon politics and politicians, notably the press; because the right protects, more broadly, the public interest in a democracy of open discussion of matters of public concern. Thus, so far as freedom of speech is concerned, many of the cases concern the protection of, not a politician’s right, but the right of those who criticise politicians.
  5. The protection goes to “political expression”; but that is a broad concept in this context. It is not limited to expressions of or critiques of political views, but rather extends to all matters of public administration and public concern including comments about the adequacy or inadequacy of performance of public duties by others. The cases are careful not unduly to restrict the concept; although gratuitous personal comments do not fall within it.
  6. The cases draw a distinction between fact on the one hand, and comment on matters of public interest involving value judgment on the other. As the latter is unsusceptible of proof, comments in the political context amounting to value judgments are tolerated even if untrue, so long as they have some – any – factual basis. What amounts to a value judgment as opposed to fact will be generously construed in favour of the former; and, even where something expressed is not a value judgment but a statement of fact (e.g. that a council has not consulted on a project), that will be tolerated if what is expressed is said in good faith and there is some reasonable (even if incorrect) factual basis for saying it, “reasonableness” here taking account of the political context in which the thing was said.
  7.  As Article 10(2) expressly recognises, the right to freedom of speech brings with it duties and responsibilities. In most instances, where the State seeks to impose a restriction on the right under Article 10(2), the determinative question is whether the restriction is “necessary in a democratic society”. This requires the restriction to respond to a “pressing social need”, for relevant and sufficient reasons; and to be proportionate to the legitimate aim pursued by the State.
  8. As with all Convention rights that are not absolute, the State has a margin of appreciation in how it protects the right of freedom of expression and how it restricts that right.  However, that margin must be construed narrowly in this context. There is little scope under Article 10(2) for restrictions on political speech or on debate on questions of public interest.
  9. Similarly, because of the importance of freedom of expression in the political arena, any interference with that right (either of politicians or in criticism of them) calls for the closest scrutiny by the Court.

As regards the position of non-elected public servants, Hickinbottom J observed as follows:-

  1. They are, of course, open to criticism, including public criticism; but they are involved in assisting with and implementing policies, not (like politicians) making them. As well as in their own private interests in terms of honour, dignity and reputation, it is in the public interest that they are not subject to unwarranted comments that disenable them from performing their public duties and undermine public confidence in the administration. Therefore, in the public interest, it is a legitimate aim of the State to protect public servants from unwarranted comments that have, or may have, that adverse effect on good administration.
  2. Nevertheless, the acceptable limits of criticism are wider for non-elected public servants acting in an official capacity than for private individuals, because, as a result of their being in public service, it is appropriate that their actions and behaviour are subject to more thorough scrutiny. However, the limits are not as wide as for elected politicians, who come to the arena voluntarily and have the ability to respond in kind which non-elected public servants do not.
  3. Where critical comment is made of a non-elected public servant, such that the public interest in protecting him as well as his private interests are in play, the requirement to protect that public servant must be weighed against the interest of open discussion of matters of public concern and, if the relevant comment was made by a politician in political expression, the enhanced protection given to his right of freedom of expression.

 

Environment, Highways and Leisure

May 21st, 2014 by James Goudie KC in Environment, Highways and Leisure

The Supreme Court has given Judgment in Barkas v North Yorkshire County Council [2014] UKSC 31, dismissing Ms Barkas’ appeal from [2012] EWCA Civ 1373 and against the rejection of her application to register land as a town or village green under Section 15 of the Commons Act 2006.  The land was provided and maintained by a local authority as “recreation grounds” under what is now Section 12(1) of the Housing Act 1985.  The Supreme Court ruled that, so long as land is held under such a provision, members of the public have a statutory right to use the land for recreational purposes, and therefore use the land “by right” rather than “as of right”, within the meaning of Section 15(2)(a) of the 2006 Act.  The Supreme Court observed that where the owner of the land is a local, or other public, authority which has lawfully allocated the land for public use, it is impossible to see how, at least in the absence of unusual additional facts, it could be appropriate to infer that members of the public have been using the land “as of right” simply because the authority has not objected to their using the land. It seems very unlikely that, in such a case, the legislature could have intended that such land would become a village green after the public had used it for twenty years. It would not merely be understandable why the local authority had not objected to the public use: it would be positively inconsistent with their decision to allocate the land for public use if they had done so. The position is very different from that of a private owner, with no legal duty and no statutory power to allocate land for public use, with no ability to allocate land as a village green, and who would be expected to protect his or her legal rights.  This means that the decision in Beresford v Sunderland City Council [2004] 1 AC 889, in which the House of Lords held that the public’s use for more than 20 years of land maintained by the local authority with that authority’s knowledge was “as of right”, should no longer be relied on. It is clear on the facts in that case that the city council and its predecessors had lawfully allocated the land for the purpose of public recreation for an indefinite period, and that, in those circumstances, there was no basis upon which it could be said that the public use of the land was “as of right” rather than by right.

 

Village Greens

May 15th, 2014 by James Goudie KC in Environment, Highways and Leisure

In Church Commissioners v Hampshire County Council [2014] EWCA Civ 634 an application to register a village green just within the 5 year limit failed to comply with the Registration Regulations.  By the time the application was corrected the limit had expired.  The Court of Appeal held that once the application had been corrected it had retrospective effect and was to be treated as having been made on the date on which the (defective) application had been lodged.  The Court further held (by a majority) that what amounts to a “reasonable opportunity” for correction to be made is a question of law for the Court rather than the registration authority.

 

Decision Making

May 1st, 2014 by James Goudie KC in Decision making and Contracts

In R (Bridgerow Ltd) v Cheshire West and Chester Borough Council [2014] EWHC 1187 (Admin) a local authority’s decision refusing to renew a sexual entertainment venue licence under the Local Government (Miscellaneous Provisions) Act 1982, as amended, was set aside where, in breach of the authority’s Constitution, the decision was taken by the full panel of twelve councillors instead of the three to whom it was delegated under the Constitution.  Stuart-Smith J emphasized that it is important that the manner in which executive functions are carried out is transparent and reliable.  A decision being taken by the wrong persons is a serious procedural irregularity, especially when political proportionality is involved.

 

Local Government Ombudsman

March 27th, 2014 by James Goudie KC in Non Judicial Control

In R (Nestwood Homes Developments Limited v South Holland District Council [2014] EWHC 863 (Admin) the Council successfully defended a judicial review claim by a developer against the Council’s decision to comply only partly with the Local Government Ombudsman’s (“LGO”) recommendations that it pay compensation for maladministration of over £250,000.  The authority paid £50,000 plus interest.  Applying R (Gallagher) v Basildon DC [2011] PTSR 731, Sales J rejected claims of irrationality, pre-determination and procedural unfairness.  He said that the authority was entitled to take into account the financially straitened circumstances in which it operated in deciding how to respond to the LGO’s recommendations, and had reached a rational conclusion.

Sales J observed as follows, from paragraph 54.  The LGO has power to investigate a complaint of alleged maladministration in connection with a local authority’s administration functions, under sections 24A and 26 of the Local Government Act 1974. A report by the LGO is sent to each person concerned: section 30(1). It can include recommendations to remedy injustice suffered as a result of maladministration: section 30(1A). Where the LGO reports that there has been maladministration, the local authority should inform the LGO of the action it has taken or intends to take: section 31(2). If the LGO is not satisfied with the action proposed by the local authority, then he shall issue a further report and make recommendations: section 31(2A). Where the authority still fails to comply with the recommendations made by the LGO, he can require the authority to publish a statement in two local publications, setting out his recommendations and any other material he requires: section 31(2D), (2E) and (2F). However, the notice need only contain the authority’s reasons for not complying if the authority so decides: section 31(2E)(c). Where the LGO issues a report which makes findings of maladministration, injustice and loss suffered as a result, those findings are binding on the authority unless successfully challenged by way of a judicial review claim.The authority is not obliged to accept and act on the recommendations as to remedy made by the LGO. The authority’s decision how to respond is governed by usual, general public law requirements of good faith, rationality, fairness and so on. The rationality of a proposed response has to be assessed taking account of the binding findings of maladministration, injustice and loss which have been made. The statutory scheme providing for public notice to be given if the LGO is not satisfied with remedial steps taken by an authority indicates that emphasis is placed upon political sanctions and pressure, as opposed to imposition of a simple legal obligation to act upon the LGO’s recommendations. A finding of maladministration does not have the same effect as a finding of breach of some public or private law duty, in relation to which binding legal remedial consequences may be imposed by order of a court. By contrast, “even though a recommendation as to remedy made by the LGO requires to be taken very seriously by an authority to which it is directed, it leaves scope for that authority to have regard to other pressing aspects of the public interest in deciding whether to accept and act upon the recommendation”. There is no statutory duty to give reasons for rejecting a LGO’s recommendation. However, where the authority does provide reasons for rejecting a recommendation, the Court is entitled to examine carefully whether the authority has, first, taken into account relevant considerations and, secondly, has weighed those relevant considerations in a way that a reasonable council should have done. Local authorities decline to accept and act on recommendations regarding remedy made by the LGO in only a tiny proportion of cases. Whilst this serves to emphasise the seriousness with which a local authority should approach a LGO recommendation as to remedy for maladministration, it does not in itself indicate that an authority is required to treat itself as bound to accept and act upon such a recommendation.

Sales J held (paragraphs 61-66) that adequate reasons had been given; (paragraphs 67-72) that excessive weight had not been given to affordability and there had been no failure to consider relevant considerations; (paragraphs 73-80) that there had been no unfairness; (paragraphs 81-86) that there had been no predetermination; and (paragraph 87) that there had been no perversity.

At paragraph 70 he observed: “The financial constraints on the Council … were severe, and the Council was entitled to give them significant weight”; and at paragraph 84: “… some predisposition to wish to conserve the resources of the Council in order to provide services in its area was to be expected …”.

 

Street Entertainment

March 12th, 2014 by James Goudie KC in Environment, Highways and Leisure

R (Keep Streets Live Campaign Limited) v Camden LBC [2014] EWHC 607 (Admin) is a claim for judicial review of Camden’s decision to adopt Part V of the London Local Authorities Act 2000 and to approve a Policy the effect of which is to license busking in Camden’s area.  Patterson J dismissed the claim.

The first ground of challenge was that the Policy was insufficiently certain.  However, as Patterson J observed (para 39): “The requirement of certainty is not one of absolute certainty”; and (para 43): “Given the nature of street entertainment it would be impossible to come up with an absolute definition”.  She concluded (para 48): “There is … sufficient clarity in the drafting of the Policy for a concerned person, with advice if necessary, to know whether there was likely to be a breach of licence conditions or a requirement to obtain a licence”; and (para 49): “… the Policy is sufficiently comprehensible”.

The second ground of challenge was that the Policy was adopted on an unlawful basis.  Patterson J rejected this challenge.  The statutory preconditions for making a scheme had been satisfied.

The third ground of challenge was that the Policy infringed ECHR Art 10.  Patterson J, however, held that the Policy was necessary and proportionate.  She held (para 101) that busking “is not the most important right of free expression in a democratic society.  It is not akin to political speech”.  Although Art 10 was engaged, “it operates at a low level”.  The scheme did not stop people busking in Camden, and (para 102) limiting busking to prevent obstructions of the highway or the creation of nuisance was “an acceptable interference with Article 10 rights”.  In applying the proportionality analysis, the Court held that there was a “pressing social need” to regulate busking (nuisance/obstruction), and existing powers available to the Council (e.g. enforcement under the Environmental Protection Act 1990) were not equivalent to the powers under the 2000 Act for dealing with buskers in a comprehensive way.

Patterson J concluded (para 122) that Camden “has adopted a policy which, in my judgement, is both necessary and a proportionate response to the issue of busking.  It has striven to introduce a policy which holds the ring between promoting economic growth through fostering dynamic busking activity across the Borough but balancing that with the requirements of its residents and other economic activity which contributes to the well being of Camden”. 

 

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