Non-Domestic Rates

January 22nd, 2014 by James Goudie KC in Council Tax and Rates

The Non-Domestic Rating (Small Business Rate Relief) (England) (Amendment) Order 2014, SI 2014/43 (“the 2014 Order”), amends the Non-Domestic Rating (Small Business Rate Relief) (England) Order 2012 (“the 2012 Order”) to provide for a temporary extension to the increase in small business rates relief in England until 31 March 2015 and to extend the scope of the relief where small businesses expand.

The 2012 Order prescribes the conditions for eligibility for small business rate relief and the rates of relief in relation to eligible hereditaments.  A hereditament is only eligible where it is the sole hereditament occupied by the ratepayer, but additional hereditaments are disregarded where their rateable value is not more than £2,599 and the aggregate rateable value of all hereditaments occupied by the ratepayer does not exceed £25,499 if situated in Greater London or £17,999 if situated outside Greater London.  The 2014 Order substitutes new provisions for Articles 3(6) and 4(7) of the 2012 Order so that where a ratepayer starts to occupy an additional hereditament, the ratepayer does not lose the benefit of the relief for the first 12 months of occupation.

Where the eligibility criteria are satisfied a ratepayer’s daily liability for non-domestic rates in respect of that hereditament is determined under Section 43(4A) of the Local Government Finance Act 1988.  Section 43(4A) provides for the calculation in accordance with the formula (A x D) divided by (C x E) where: A is the rateable value of the hereditament; D is the small business non-domestic rating multiplier for the financial year; C is the number of days in the financial year; and E is such amount as is prescribed in relation to the hereditament by the Secretary of State by Order. Article 4 of the 2012 Order prescribes the amount of E for the financial years beginning on 1 April 2012 and 2013 and Article 3 of the 2012 Order prescribes the amount of E for subsequent financial years.

The 2014 Order amends the 2012 Order to apply Article 4 of the 2012 Order to the financial year beginning on 1 April 2014.  The effect of this amendment is to extend the temporary doubling of the level of small business rate relief for a further year.  Article 4 will also continue to apply in respect of days falling within the financial years which started on 1 April 2012 and 1 April 2013.

 

Council Tax

January 22nd, 2014 by James Goudie KC in Council Tax and Rates

The purpose of the Billing Authorities (Anticipation of Precepts) (Amendment) (England) Regulations 2014, SI 2014/35, is to enable billing authorities in England making council tax calculations in accordance with Section 31A of the Local Government Finance Act 1992 (“the 1992 Act”) to anticipate a precept from a local precepting authority.  The legislative context is that Sections 73 to 79 of the Localism Act 2011 (“the 2011 Act”) made amendments to the calculations which billing authorities, major precepting authorities, and local precepting authorities in England must make to determine their basic amounts of council tax for a financial year. The obligation to calculate a budget requirement for a year was replaced with an obligation to calculate a council tax requirement. Under the new provisions an authority’s council tax requirement for a financial year is the amount the authority requires from council tax alone in order to finance its budget for the year and this amount is used to calculate the authority’s basic amount of council tax. Section 74 of the 2011 Act inserted a new Section 31A into the 1992 Act requiring a billing authority to calculate its council tax requirement each financial year, and Section 32 of the 1992 Act was modified to apply to Wales only rather than to England and Wales. The Regulations make a minor amendment consequential on the changes made by the 2011 Act to update the definition of “calculations” in the Billing Authorities (Anticipation of Precepts) Regulations 1992 in relation to England to refer to the new Section 31A inserted by the 2011 Act.. This will enable billing authorities in England making their calculations in accordance with Section 31A of the 1992 Act to anticipate a precept from a local precepting authority under Section 41 of the 1992 Act if that precept has not been issued in time for their calculations.

 

Breach of Code of Conduct

January 8th, 2014 by James Goudie KC in Standards

In R (Dennehy) v Ealing LBC (2013) EWHC 4102 (Admin) a Councillor’s application for permission to apply for Judicial Review of a decision by a Standards Committee that he had breached the Council’s Code of Conduct failed.  The Committee had found that a post on the Councillor’s blog about Southall residents failed to treat others with respect and brought the Council and the office of Councillor into disrepute.  The Judge concluded that the decision and the sanctions imposed were plainly a proportionate interference with the Councillor’s ECHR Article 10 rights in the light of the other interests identified in the ECHR.  The sanctions were to request an apology and the publication of a neutral notice of the decision on the Council’s website and in the local newspaper.  The Judge noted that the comments about Southall residents were contained in a separate section of the blog from those which raised legitimate topics of political debate. “They were not the expression of a political view, but an unjustified personal and generic attack on a section of the public. The subjects of the speech were not politicians but ordinary members of the public and, as such, the comments did not attract the higher level of protection applicable to political expressions and the comments would plainly have undermined confidence in local government, the preservation of which is a recognised aim of the code”.

 

Mayoral Elections

January 8th, 2014 by James Goudie KC in Elections and Bylaws

The draft Local Authorities (Mayoral Elections) (England and Wales) (Amendment) Regulations 2014 (“the 2014 Regulations”) amend the Local Authorities (Mayoral Elections) (England and Wales) Regulations 2007, SI 2007/1024 (“the 2007 Regulations”).  The 2014 Regulations make changes to the rules governing the conduct of local Mayoral Elections in England and Wales.  In doing so they apply or copy electoral conduct provisions in the Electoral Registration and Administration Act 2013 (“the ERA Act”) and associated secondary legislation for the purposes of those elections.  Many of the provisions in the 2014 Regulations replicate, for Mayoral Elections, amendments that have been made to the conduct of UK Parliamentary elections by the ERA Act or that will be made by the draft Representation of the People (England and Wales) (Description of Electoral Registers and Amendment) Regulations 2013 (the “draft 2013 Regulations”).

The 2014 Regulations are part of a wider package of Regulations and Statutory Instruments which make various changes to the rules for conducting elections and referendums and include the draft 2013 Regulations, the European Parliamentary Elections (Amendment) Regulations 2013 (S.I. 2013/2876) and the draft Neighbourhood Planning (Referendums) (Amendment) Regulations 2014.

The 2014 Regulations revoke the Local Authorities (Mayoral Elections) (England and Wales) Regulations 2012 (S.I. 2012/2059) and the amendments made to the 2007 Regulations by those Regulations.

The changes are being made now, in conjunction with changes to other electoral legislation, so they can have effect at polls that take place on 22 May 2014 and thereafter.

 The 2014 Regulations make the following changes to the 2007 Regulations:

  • •  Changing the timetable for proceedings at the Election so that deadlines are consistent with other elections, facilitating the early despatch of postal votes when elections are combined. In particular, the deadlines for candidates’ nominations and withdrawals become 4pm on the nineteenth day before polling day, and the deadline for the publication of the statement of persons nominated becomes 4pm on the eighteenth day before polling day.
  • •  Enabling Police Community Support Officers to enter polling stations and counting venues under the same conditions as police constables in England and Wales.
  • •  Providing that voters waiting in a queue at the close of poll (i.e. at 10pm on polling day) for the purpose of voting may be issued with a ballot paper, and that those in the queue for the purpose of returning a postal ballot paper or voting statement may return it.
  • •  Updating voting forms for accessibility reasons. The 2014 Regulations also make amendments to the provisions on consent to nomination and the interpretation provisions.
  • •  In addition, changes made by the draft 2013 Regulations relating to postal and proxy voting will apply to Mayoral Elections.

 

 

Non-Domestic Rating

January 8th, 2014 by James Goudie KC in Council Tax and Rates

The Local Government Finance Act 1988 (Non-Domestic Rating Multipliers) (England) Order 2014, SI 2014/2, has been made in exercise of the powers conferred by paragraph 5(3) of Schedule 7 to the Local Government Finance Act 1988 (“the 1988 Act”). In relation to England and for the financial year beginning on 1st April 2014 (“2014-15”) the Order specifies an amount which is to be used in the calculation of the non-domestic rating and the small business non-domestic rating multipliers for that year.

Schedule 7 to the 1988 Act establishes a procedure by which the non-domestic rating and the small business non-domestic rating multipliers are calculated for a chargeable financial year. In relation to England and a year at the beginning of which new rating lists are not compiled, the small business non-domestic rating multiplier is calculated in accordance with paragraph 3 of Schedule 7 to the 1988 Act. The non-domestic rating multiplier for the year is then calculated in accordance with paragraph 3A of Schedule 7 to the 1988 Act by reference to that multiplier.

The calculation in paragraph 3 of Schedule 7 to the 1988 Act includes a variable referred to as “B”. Unless an order made by the Treasury provides otherwise, B is the retail prices index for September of the financial year proceeding the year concerned, which in relation to 2014-15 was 251.9.  Paragraph 5(3) of Schedule 7 to the Local Government Finance Act 1988 enables the Treasury by order to specify a different amount for B. Where the Treasury exercises this power the amount specified must be less the retail prices index for September of the financial year proceeding the year concerned.

For 2014-15 the Order specifies B as 249 for the purposes of paragraph 3 of Schedule 7 to the 1988 Act. This represents a 2% cap.  Otherwise the figure would have been 3.2%.

 

Local Authority Powers

November 21st, 2013 by James Goudie KC in Local Authority Powers

The General Power of Competence (GPOC) under Section 1 of the Localism Act 2011 was held inapplicable in R (MK) v Barking & Dagenham LBC [2013] EWHC 3486 (Admin).  The Court held that the local authority did not have power either under Section 17 of the Children Act 1989 or pursuant to GPOC to accommodate and provide basic subsistence to an “overstayer”.  The safety net power to accommodate a person who was temporarily admitted to the UK was for central government, under Section 4 of the Immigration and Asylum Act 1999, rather than for local government.  Neither GPOC nor the Children Act could be used in order to circumvent the prohibitions on other statutory means of relief which might otherwise be available to the claimant were it not for her immigration status.  There was a comprehensive statutory scheme reflecting Parliament’s intention to exclude those unlawfully in the UK from a whole range of benefits, including the ones relevant to this case.  Section 2 Localism Act restrictions applied to the Section 1 power.  The scope of “pre-commencement limitation” in Section 2(1) of the Localism Act was held (para 76) to be the same as under Section 3 of the Local Government Act 2000 as interpreted by the Court of Appeal in R (Khan) v Oxfordshire County Council [2004] EWCA Civ 309 from para 30.  At para 84 the Judge said that Section 1 of the Localism Act “was not intended by Parliament as a means of overriding a clear statutory scheme prohibiting the provision of benefits of all kinds to those unlawfully in the UK”.

 

Liability

November 6th, 2013 by James Goudie KC in Judicial Control, Liability and Litigation

Should an order for specific disclosure be made in a judicial review application even before permission has been granted and where permission has been refused on paper?   That was the issue raised in R (Sky Blue Sorts & Leisure Ltd) v Coventry City Council [2013] EWHC 3366 (Admin), where such disclosure was refused.

Mr Justice Silber observed that the application was “extremely unusual”, having been made after Males J had already determined on the papers that the Claimants’ grounds of review were unarguable.  Silber J noted that neither he nor any of his colleagues knew of any case in which an order for specific disclosure had been made on a judicial review claim before permission had been granted.

The Claimants argued that disclosure of certain documents referred to in the Council’s Summary Grounds of Resistance and supporting materials was “necessary” in order to resolve their application for permission ‘fairly and justly’, as required by the test in Tweed v Parades Commission for Northern Ireland [2007] 1 AC 650.

Silber J rejected these arguments and agreed with the Council that further disclosure was not necessary at this stage. In particular, His Lordship held that:

– “A renewed permission application is a different animal from a substantive hearing”, and permission would be granted where “on a quick perusal of the material then available, the court thinks that it discloses what might on further consideration turn out to be an arguable case” (citing Lord Diplock in R v IRC ex p. Nat-Fed [1982] AC 617). In those circumstances, the Claimants already had “enough material to put forward a respectable case (if not their very best case) on most of the issues to be raised on the renewed permission application”; and

– There was no reason why the Claimants could not point to the Council’s decision not to disclose certain documents at the permission hearing, in order to support their argument that permission should be granted to investigate all of the facts in full.

His Lordship also mentioned that, if he had not dismissed the application for those reasons, then he might have dismissed it in any event, if he had concluded that the documents sought were not “highly relevant” to the issues, or because of the Claimants’ delay in making the application, which would have caused “serious prejudice” to the Council if the oral renewal hearing (listed for late November 2013) had to be postponed.

The owners of Coventry City Football Club had been refused permission to seek judicial review of the Council’s decision to loan £14.4m to the company that manages the Ricoh Arena (“ACL”), where the club used to play its home games. 

The Claimants argue that the loan was an unlawful State Aid, and that the Council had made the loan for the improper purpose of seeking “to compel [the Claimants] to relinquish ownership of the Club”. The Claimants also argue that the loan was irrational and ultra vires, and that the Council was guilty of misfeasance in public office.

After considering the application on the papers, Mr Justice Males on 31 July 2013held that:-

The claim had not been brought promptly, having been filed on the last day of the 3 month time limit or 1 day late, and there was no good reason for the delay;

– It was unarguable that the Council’s loan to ACL was a State Aid. The loan was made on commercial terms, and in order to protect the Council’s investment in ACL, in which it is a 50% shareholder; and

– The Claimants’ other grounds of review were also unarguable. The Council took its decision in order to protect its investment in ACL, and not in order to harm the Claimants’ commercial interests or to force them to relinquish ownership of the Club.

 

Liability

October 23rd, 2013 by James Goudie KC in Judicial Control, Liability and Litigation

The appeal to the Supreme Court in Woodland v Essex County Council [2013] UKSC 66 arose from a tragic incident at a swimming pool in Essex when the appellant suffered a serious hypoxic brain injury during a school swimming lesson.  She was then aged 10.  She was a pupil at a Junior School for which the County Council as local education authority, was responsible. The swimming lesson took place in normal school hours, as required by the National Curriculum.

The appellant was assigned to a group being taught by a swimming teacher.  A lifeguard was also in attendance. It was alleged on the appellant’s behalf that both negligently failed to notice that she had got into difficulties in the water, causing her to suffer the injury. Neither was employed by the Council.  Their services had been provided to the Council pursuant to a contract.

The appellant issued proceedings for negligence against a number of parties, including the Council. Her case against the Council included an allegation that it owed her a “non-delegable duty of care”, with the result that it was liable for any negligence on the part of either the teacher or the lifeguard.  The Council denied that it owed such a duty.  It applied to strike out this allegation against it.

The allegation was struck out in the High Court.  This decision was upheld in the Court of Appeal.

However, the Supreme Court unanimously allowed the appeal against the order striking out the allegation of a non-delegable duty. The case will now return to the High Court to determine whether the appellant was in fact a victim of negligence.

The question before the Court was the scope of the Council’s duty to pupils in its care: was it a duty to take reasonable care in the performance of the functions entrusted to it only if it performed those functions itself, through its own employees; or was it to procure that reasonable care was taken in their performance by whomever it might get to perform them – a non-delegable duty?

The starting point is that non-delegable duties of care are inconsistent with the fault-based principles on which the law of negligence is based.  They are therefore exceptional.   However, English law has recognised that non-delegable duties can arise in cases with the following characteristics:

 (1)              the claimant is a patient or child or for some other reason is especially vulnerable or dependent on the protection of the defendant against the risk of injury;

(2)              there is an antecedent relationship between the claimant and the defendant independent of the negligent act or omission itself (i) which puts the claimant in the actual custody, charge or care of the defendant, and (ii) from which it is possible to impute to the defendant the assumption of a positive duty to protect the claimant from harm in the performance of those obligations and not just a duty to refrain from conduct which will foreseeably damage the claimant;

(3)              the claimant has no control over how the defendant chooses to perform those obligations;

(4)              the defendant has delegated some function which is an integral part of the positive duty which he has assumed towards the claimant and the third party is exercising the defendant’s custody or care of the claimant and the element of the control that goes with it; and

(5)              the third party has been negligent in the performance of the very function assumed by the defendant and delegated by the defendant to him.

The Supreme Court says that it is fair, just and reasonable to impose such duties. It is consistent with the long-standing policy of the law to protect those who are inherently vulnerable and subject to a significant degree of control. It is wholly reasonable that a school should be answerable for the performance of part of its own educational function. Parents are required by law to entrust their child to a school and have no knowledge or influence over the arrangements that the school may make to delegate specialised functions, or the competence of the delegates. It is not an open ended liability and will only cover functions which the school has assumed for itself a duty to perform rather than to arrange for its performance, and only where control over the child has been delegated. The recognition of this duty has become more significant as a result of increased outsourcing of educational and supervisory functions but only replaces duties which the school formerly owed when the functions were performed by its staff.

On the facts of this case, as pleaded by the appellant, the Council had delegated the control of the appellant to third parties to carry out an integral part of its teaching function during school hours, in a place where the school chose to carry out this part of its functions. If it is found that the third parties were negligent, then the Council will be in breach of duty.

 

Decision Making and Contracts

October 9th, 2013 by James Goudie KC in Decision making and Contracts

R (Buck) v Doncaster MBC (2013) EWCA Civ 1190 raises important issues as to the division of powers between a directly elected executive and the full council of a local authority.  At first instance Hickinbottom J made the general observation that, if, by an appropriately worded budget amendment, the full Council could override executive decisions of the Mayor, and replace those decisions with their own, the ultimate executive decision-making power would not lie with the Mayor, but with the full Council, contrary to the intention of the Local Government Act 2000 governance scheme.  The Court of Appeal agreed.  The Master of the Rolls said (at para 17) that, in view of the objective of the relevant provisions of the 2000 Act, it would be extraordinary (and frustrate the evident intention of Parliament) if the full Council could direct the Mayor whether and, if so, how to spend the money which had been authorised by the budget.  It would mean that the full Council could take over responsibility for almost any executive matter, simply by writing some sufficiently specific provision about it in the annual budget.  If the budget-setting powers of the full Council extend to prescribing exactly what expenditure is to be incurred in what specific respects, then it can use those powers to determine exactly what the executive authority will do.  Nor is there any limit to the degree of detail into which such prescription could descend.  This kind of micro-management by the full Council was plainly not intended by the 2000 Act. 

Full Council has no power to interfere with the executive function of the Mayor, except where the Mayor proposes to exercise the function in a way that is (i) contrary to, or not wholly in accordance with, the authority’s budget, or (ii) is contrary to a plan or strategy adopted or approved by the authority.  So what does determining a matter in a manner “contrary to or not wholly in accordance with the authority’s budget” mean?  At para 20, the Master of the Rolls, with whom McCombe LJ and Gloster LJ agreed, said: “In my view, it means determining a matter which will result in incurring expenditure in excess of that for which budget approval has been given by the full council.  That does not only mean that the executive may not incur expenditure in excess of the aggregate of the entire budget, although it certainly includes such a restriction  on the executive’s spending power.  …  it also means that the executive may not incur expenditure in excess of heads of expenditure specified in the budget.” 

To summarise, the full Council may allocate more or less funds than are requested by the Mayor in his proposed budget.  It is the final arbiter of what goes into the budget.  The budgetary process is geared to avoiding any budget deficit by ensuring that the revenue expenditure will not be exceeded.  But it does not allow the full Council to micro-manage the authority’s functions and interfere with the executive functions of the Mayor.  The full Council cannot require the Mayor to expend money in a particular way, or, unless he proposes to act in a way contrary to the plans and strategies reserved to the full Council, to expend money on a particular function. 

As regards “contrary to a plan or strategy”, the Master of the Rolls said:

“24.       … The language of “plan or strategy”,  read in the context of the Functions Regulations, denotes something that operates at a general level.  It cannot embrace any and every decision that may be taken on an individual issue.  If it did, it would undermine the basic distinction between executive and non-executive functions which lies at the heart of the relevant part of the 2000 Act.  The basic idea is that the full council may in certain respects set the policy framework for the authority, but its detailed implementation is a matter for the executive (provided that what it does is not contrary to and is wholly in accordance with the budget).” 

 

Decision Making and Contracts

October 7th, 2013 by James Goudie KC in Decision making and Contracts

In R (T) v Sheffield City Council [2013] EWHC 2953 (QB) 4 mothers challenged by judicial review the decision of the Council to stop paying subsidies to 20 nurseries.  They did so on 5 grounds: (1) failure to consult fairly; (2) breach of the PSED; (3) breach of the best value duty; (4) breach of duties imposed by the Childcare Act 2006 (“CA 2006”); and (5) irrationality.  All the challenges failed.

As regards flawed consultation, Turner J observed (para 30) that whether consultation is undertaken at a formative stage “is bound to be fact sensitive” and that “the important point” is that “when the process starts the ultimate decision should still be fully capable of being moulded and influenced by the response”.  At paras 32 and 35 he stated:-

“32. It is also important to put the issue of consultation into context. There will be many cases in which it will not be possible precisely to time the beginning (or even the end) of the consultation process. For example, it is by no means unusual for particular proposals to have been preceded by earlier different but related proposals upon which there has already been some level of pertinent consultation. The existence of the prior period of consultation does not, of course, obviate the need to consult further but it may have an important influence on the timing, content and duration of the process of consultation which follows.”

“35. The time reasonably to be allowed for a response to a consultation process is, again, a highly fact sensitive issue. Once more, context is important. Where, as here, the issue upon which consultation is to take place is one in which interested parties have already been recently engaged the time reasonably required for any formal consultation period may well be shorter than in circumstances where the proposal is without precursors.

As regards the PSED, under Section 149 of the Equality Act 2010, Turner J said (para 53):-

“Of course, a mere generic, background level of concern is not of itself sufficient to comply with the requirements of the Act but it is not insignificant that those responsible for taking the decision in this case were not approaching their responsibilities from a position of ignorance about the social and demographic context in which they were operating. Further, Cabinet members were engaged in the process of assessing and developing proposals as part of a continuous process and the records of meetings are snapshots only of the route which they are following.

As regards the best value duty under Section 3 of the Local Government Act 1999, and Guidance issued by the Secretary of State, Turner J concluded (para 67):-

“There is no substance in the complaint that the defendant impermissibly distorted the outcome of its decision making process in a way calculated to preserve funding for itself as opposed to the nurseries. In any event the Guidance, thankfully, does not require a formulaic “pound for pound” approach. …”

As regards CA 2006, Turner J said:-

“70. Section 1 of the 2006 Act is described as a “general duty” and cannot be approached in the context of the position of an individual or individuals. It is necessary to look at the population of those affected as a whole. In this case, it was perfectly open to the defendant to conclude that the decision to prioritise intervention over subsidy would have the overall effect of improving the well-being of young children and to reduce inequalities in the well-being of young children in the Sheffield area. It is not for the court to substitute its own views for that of the democratically elected local authority.”

“71. Much the same can be said of section 3(2). I do not see how it can be contended that redistributing resources away from nursery subsidies and towards individual cases of need cannot, at least arguably, result in a better integrated provision of early childhood services and a maximisation of the benefit to be derived by young children and their parents. Whether it actually does or not is a matter upon which the defendant is in a far better position than this court to judge.

72.Within the factual parameters of this case it is difficult to see how section 3(3) could be any more than peripherally relevant if at all. This sub-section too applies to all those children and parents affected by the actions of the decision maker and cannot be applied to a limited class in isolation. The withdrawal of funding from twenty nurseries does not on the face of it constitute a general failure to identify parents or prospective parents who would otherwise be unlikely to take advantage of early childhood services. There is simply no evidence in support of this contention and it is misconceived as a matter of law.

73. The duty under section 6 is more obviously pertinent to the issues arising in this case but it is subject to the constraints of reasonable practicability. This issue was clearly and directly considered by the defendant. The requirements of section 6 are also set out in the overarching EIA. There is simply no legitimate basis in this case upon which this court can substitute its own view as to what is or is not reasonably practicable for that reached by the defendant.”

As regards irrationality, Turner J said:-

“77. I am in no doubt that the claimants genuinely believe that the defendant’s decision was irrational in the sense that they consider that the balance of argument was firmly weighted in favour of the retention of the grants, at least for some further period, and they cannot understand why this did not happen. It is not, however, for this court to attempt to re-balance the arguments and form its own conclusion on their respective merits.”

Turner J’s conclusion was as follows:-

78. The twenty nurseries affected by this decision which provide valuable facilities to the families which they serve are to be commended on the contribution they have made and continue to make to their local communities. I hope that, despite the termination of the subsidies, they are all able to survive and flourish but I must recognise that some may not. In an ideal world, it would not be necessary to make hard choices about the distribution of funds between competing but thoroughly meritorious causes but, particularly in the present economic climate, sacrifices even of highly socially desirable initiatives are sometimes unavoidable. Councils are democratically elected to make decisions and some of these are bound to be contentious and unpopular. Ultimately, however, the decision in this case, controversial as it undoubtedly was, complied with the standards imposed by public law and must remain undisturbed.”

 

« Older Entries
Newer Entries »