The Local Government Byelaws (Wales) Act 2012 (anaw 2) reforms procedures for making byelaws in Wales, including removing a requirement for confirmation of byelaws by the Welsh Ministers; enables certain byelaws to be enforced by fixed penalty notices; requires authorities that make byelaws to have regard to any guidance given by the Welsh Ministers on procedure; and restates for Wales a general power to make byelaws.
Judicial Review For Judicial Review For Error Of Fact
November 26th, 2012 by James Goudie KC in Judicial Control, Liability and LitigationRichmond-upon-Thames LBC v Kubicek [2012] EWCA 3292 (QB) is not a judicial review case, but it is of significance in relation to a judicial review or similar challenge based on a material error of fact giving rise to unfairness. The Richmond case was itself a statutory appeal. It raised an issue as to when, if ever, it is permissible for a County Court, hearing an appeal under s204 of the Housing Act 1985, on “any point of law” arising from a review decision made by a local housing authority in a homelessness case, to receive evidence on, and decide a question of fact relevant to, the review decision. It is well established that an appeal “on any point of law” is in substance the same as a judicial review. One of the issues on the appeal was whether new evidence which Mrs Kubicek sought to adduce was relevant to any issue on the s204 appeal.
It was common ground that under the statutory scheme of Part VII of the 1985 Act questions of fact are generally for the local housing authority making the review decision to determine. For that reason, the usual process on any appeal pursuant to s204 is for the matter to be determined on the basis of submissions as to the rationality and propriety of the review decision in the light of the material before the reviewing officer at the time of the decision. Evidence which was not before the reviewing officer is not usually relevant. The authorities, however, indicate that there are two purposes for which fresh evidence may be relevant on a s204 appeal. One such purpose is to show how the review decision was reached, including what material was before the reviewing officer and what procedure was followed. These matters may be relevant where, for example, it is alleged that there has been a failure to comply with the requirements of natural justice. An allegation that the decision-making process was tainted by misconduct on the part of someone involved in it would fall into this category. Where such an allegation is made, it is for the court to find the relevant facts, and evidence will be relevant and admissible to prove the misconduct or other alleged procedural impropriety.
A second purpose for which it is now clear that evidence may be relevant is to demonstrate that the decision subject to appeal was based on a material error of fact giving rise to unfairness. In the leading case of E and R v Home Secretary [2004] QB 1044, the Court of Appeal reviewed the authorities bearing on the question of whether, and if so when, a decision reached on an incorrect basis of fact can be challenged on an appeal limited to points of law. Carnwath LJ, as he then was (who gave the judgment of the Court) concluded at [66]:
“In our view, the time has now come to accept that a mistake of fact giving rise to unfairness is a separate head of challenge in an appeal on a point of law, at least in those statutory contexts where the parties share an interest in co-operating to achieve the correct result. Asylum law is undoubtedly such an area. Without seeking to lay down a precise code, the ordinary requirements for a finding of unfairness are … First, there must have been a mistake as to an existing fact, including a mistake as to the availability of evidence on a particular matter. Secondly, the fact or evidence must have been “established”, in the sense that it was uncontentious and objectively verifiable. Thirdly, the appellant (or his advisers) must not been have been responsible for the mistake. Fourthly, the mistake must have played a material (not necessarily decisive) part in the tribunal’s reasoning.”
In the Richmond case Leggatt J made four observations about this important statement of principle. The first is that in the way that this ground of review has been analysed by the Court of Appeal the purpose for which evidence is potentially relevant can be seen as an extension of the first purpose – that is, to show how the review decision was reached. In connection with this ground, evidence may be relevant to show not only what material was before the reviewing officer but also that evidence was available which was not placed before the reviewing officer and how that came about.
Second, although the Court of Appeal explained this ground of review as based on a principle of fairness, it is clear that the question whether there has been unfairness is not to be determined independently of the four requirements identified by the Court of Appeal; rather, the unfairness arises from the combination of factors which exist when those requirements are all met: see the analysis at [63].
Third, although the Court of Appeal suggested that the principle may be limited to “those statutory contexts where the parties share an interest in co-operating to achieve the correct result”, it is difficult to think of any context in which it would not be said that a public authority exercising a statutory function has an interest in ensuring that its decision is made on an accurate factual basis. Certainly decisions about housing assistance must fall within the scope of the principle as much as the decisions about asylum and planning control to which Carnwath LJ referred at [64].
Fourth, the second of the four requirements stated by Carnwath LJ is clearly of critical importance, but may possibly need some fine tuning. If, in order to decide that there has been a material mistake of fact, the court was entitled or required to resolve a factual dispute itself, then the court would be substituting its own finding of fact for that of the public body to which Parliament has given that task. Accordingly, to require that the fact has been “established” in the sense of being not merely objectively verifiable but uncontentious seems to be essential if a workable distinction between errors of law and errors of fact is to be maintained. It is less obviously essential that, where the fact about which a mistake is said to have been made is the availability of evidence on a particular matter, the evidence and not just the fact of its availability must be uncontentious. A court would not necessarily be usurping the function of the fact-finding body if it were to require the body to reconsider a decision made without knowledge of credible, even if not uncontentious, evidence which, if the decision-maker had been aware of it, might have led to a different result. A requirement that the evidence must have been uncontentious might also be thought to defeat the point of the Court of Appeal’s indication that the availability of evidence on a particular matter may itself be a relevant fact; for if evidence of a particular fact is uncontentious then so presumably is the fact itself.
Council Tax
November 23rd, 2012 by James Goudie KC in Council Tax and RatesTwo new Statutory Instruments, the Council Tax Reduction Schemes (Prescribed Requirements) (England) Regulations 2012, SI 2012/2885, and the Council Tax Reduction Schemes (Default Scheme) (England) Regulations 2012, SI 2012/2886, make provision for the new, localised, council tax support schemes in England, which come into effect on 1 April 2013. They replace council tax benefit. All billing authorities in England are required to have their own scheme. The Default Scheme Regulations make provision for a default scheme that will apply to those billing authorities that have not made their own scheme by 31 January 2013. Otherwise all schemes made by authorities, approved by Full Council, must include those matters that are prescribed in the Prescribed Requirements Regulations, as well as those matters which are required to be included in local schemes by paragraph 2 of Schedule 1A to the Local Government Finance Act 1992, as inserted by the Local Government Finance Act 2012, section 10 and Schedule 4.
Housing and Fiduciary Duties
November 15th, 2012 by Christopher Knight in HousingThe Court of Appeal has today handed down an important judgment on the ability of local authorities to avoid bargains by relying on their own unlawful acts. The context of Charles Terence Estates Ltd v Cornwall Council [2012] EWCA Civ 1439 is one of housing; the Council had entered into agreements with CTE whereby CTE purchased properties and leased thm to the Council to provide accomodation for people to whom the Council owed homelessness duties. The Council argued, successfully at first instance in front of Cranston J ([2011] EWHC 2542 (QB) ; [2011] LGR 813), that in entering into the agreements – which calculated rents based upon set rates – the Council had failed to comply with its fiduciary duty to the council tax payer because it had not considered the market rents in the locality, with the result that the leases were ultra vires and void. The Court of Appeal has overturned that conclusion.
There are two points of particular importance in the context of housing law, and a more important point about virus and public authorities generally. As to housing law, the Court of Appeal held first (in arguably the only point which formed the ratio) that the section 17 of the Housing Act 1985 power to acquire land could not be read as restricting the power to acquire land at a reasonable price. Maurice Kay LJ held that to do so would invite judicialisation of the limits of legal capacity so that only upon determination of a reasonable price could capacity be ascertained, which was a surprising outcome for a local authority to argue for: at [21]. In any event, the total abscence of expert evidence before the Court as to what the market or reasonable rent was meant that it was not possible to undertake any sort of meaningful comparison and so the case failed on an evidential basis too: at [19]-[20], [22], [24]-[25] per Maurice Kay LJ and [41] per Etherton LJ.
The second housing law point is a firm rejection by their Lordships of the argument that the leases were void because the Council had been obliged by section 74 of the Local Government and Housing Act 1989 to set up a Housing Revenue Account before it could exercise the section 17 power, and that it had been failed to do so. The Court held that the Account was a matter of book-keeping, and need only be established when money was actually recieved: at [26] per Maurice Kay LJ and [43] per Etherton LJ.
Of wider significance was their Lordships’ discussion of the circumstances in which a public authority can successfull invoke its own public law error as a defence to a private law claim, and in particular, the comments on the well-known decision of Credit Suisse v Allerdale BC [1997] QB 306, CA. There has long been a tension between the approaches of the judgements of Neill LJ and Hobhouse LJ, the former taking a broad interpretation which permitted any public law illegality to be relied upon as a defence, and the latter narrowed the application to cases involving a ‘want of capacity’ (as there was on the facts). The Court of Appeal in CTE unanimously preferred the approach of Hobhouse LJ. Maurice Kay LJ disputed that the Ansminic aggregation of all errors of law had any impact in this area, stressing the undesirablitity of a historic breach of fiduciary duty defeating an otherwise good claim by a party who had acted in good faith: at [37]. Any breaches of the Council had not gone to legal capacity. Etherton LJ drew the same distinction between ‘narrow’ ultra vires acts (in the sense of legal incapacity) and ‘wider’ ultra vires (in the sense of breach of powers or duties), preferring the approach of Hobhouse LJ because he could see no reason why the position should be any different where the transaction whose validity is questioned is that of a public body or that of a commercial party under the lack of capacity jurisprudence most famously set out in Rolled Steel Products (Holdings) Ltd v British Steel Corp [1986] Ch 246: at [48]-[52]. Moore-Bick LJ agreed with both judgments: at [39]. As a result, even if the Council’s decision to enter into the leases was ultra virus for any reason, it was a matter of ultra vires not going to capacity, and as such the leases could not be a nullity.
While the housing law findings of the Court may be some interest in future cases, the very clear alignment of the Court of Appeal with the judgment of Hobhouse LJ is of considerable wider significance for public authorities across all areas of public law.
Town and Village Greens
October 25th, 2012 by James Goudie KC in Land, Goods and ServicesIn Barkas v North Yorkshire County Council [2012] EWCA Civ 1373 CA held that a playing field, which had been acquired by a local authority under s80(1) of the Housing Act 1936 (now s12 of HA 1985), and thereafter maintained as a recreation ground, had been appropriated for the purpose of public recreation, and that, since the authority had an express statutory power to maintain the field for recreation purposes, local inhabitants using the field had been doing so, not “as of right” but rather “by right”. Therefore the field could not be registered as a town or village green. S10 of the Open Spaces Act 1906, considered by HL in R (Beresford) v Sunderland City Council [2004] 1 AC 889, is not the only example of land which is provided by a local authority as open space which the public use for recreational purposes “by right”.
Public Sector Equality Duty (“PSED”)
October 24th, 2012 by James Goudie KC in Human Rights and Public Sector Equality DutyIn R (RB) V Devon County Council, Judgment 19 October 2012, it was held that a change of provider of an Integrated Children’s Service (“ICS”) engaged the PSED at various stages of the procurement process, including the decision to retain the ICS under a single provider and the award of preferred bidder status, but not the possibility of future (post contract) changes in the provision of the ICS, until the detail of such changes was sufficiently well established. However, anything other than declaratory relief was refused, on account of urgency, the fact that the PSED had been addressed at the intention to award contract stage, lack of detriment to the claimant family, and quashing being detrimental to the children of Devon generally.
Performance Indicators (WALES)
October 24th, 2012 by James Goudie KC in Best ValueThe Local Government (Performance Indicators) (Wales) Order 2012, SI 2012/2539 (W.278) specifies performance indicators for the purpose of s8 in Part 1 of the Local Government Wales Measure 2009, by reference to which Welsh county and county boroughs’ performances will fall to be measured from 1 April 2013. Such “improvement authorities” must make arrangements to exercise their functions so that any applicable performance standard is met. The Order identifies by reference to Schedules which indicators will be used to measure the performance of which functions: Social Services, Housing, Education, Waste Management, Transport and Culture and Sport.
Towns and Village Greens
October 22nd, 2012 by James Goudie KC in Land, Goods and ServicesClause 12 of the Growth and Infrastructure Bill amends the Commons Act 2006 (“CA 2006”) so as to allow landowners to deposit a map and statement to protect their land from registration as a town or village green, whilst allowing access to it. ·Clause 13 excludes the right to apply to register land as a town or village green under s15(1) of CA 2006 where any specified event related to the past, present or future development of land occurs. Such events are known as ‘trigger events’ and these are specified in the table set out in Sch 1A to CA 2006, which is inserted by this clause. An example of such an event is the point when an application for planning permission is first published. Sch 1A also specifies terminating events which correspond to each trigger event and cause the exclusion of the right to apply under s15(1) to lift. Clause 14 amends an existing power to allow regulations to prescribe more flexible fees in relation to applications under Part 1 of CA 2006, including applications to register land as a town or village green.
The Explanatory Notes to the Bill state in relation to these Clauses:
“154. The rationale for reform is that currently applications for registering land as a town or village green under section 15(1) of the Commons Act 2006 are considered in isolation from the planning process. This in some cases leads to development which has planning permission being delayed or prevented. One of the recommendations of the Penfold review of non-planning consents was to review the operation of the regime for registering town or village greens in order to reduce the impact of current arrangements on developments which have planning permission. Implementation of this recommendation is achieved through clause 13, which aims to stop the registration system for town or village greens being used to stop or delay planned development. The reforms will protect local communities’ ability to promote development in their areas through local and neighbourhood plan-making. The proposals also aim to reduce the financial burden on authorities in determining applications and the costs to landowners whose land is affected by applications.”
The Explanatory Notes further state (para 156) that “it is highly debatable whether the right to use land registered as a town or village green for lawful sports and pastimes is a civil right since it is a form of local public right rather than a property right”, but in any event that “since the proposed measures do not determine the existence of any recreational rights, it is considered that Article 6 is not engaged; (para 160) that “it is considered that a right to use land registered as a town or village green for lawful sports and pastimes is not a possession for the purposes of Article 1 Protocol 1 (“A1P1”) and therefore this Article is not engaged; and (para 161) that, if the right to use a town or village green for lawful sports and pastimes were a possession, the Government considers that A1P1 would be “unlikely to be engaged”, since the right to apply for land to be registered as a town or village green “is not an existing possession”, but is “merely the right to apply for a future possession”, and that it is also considered that, in removing the right to apply for town or village green registration in certain circumstances, there is no interference with any claim since the legislation will affect future rather than existing applications