HOUSING AND HOMELESSNESS

September 18th, 2014 by Christopher Knight in Housing

Review Process

Where a non-English speaker declines an offer of a flat, causing the local authority to conclude it has discharged its section 193 Housing Act 1996 duty, but seeks a review on the basis that she was confused by the process and had not properly understood, it was for the court to decide whether the assertion of confusion was sufficiently important, objectively speaking, to the fairness of the procedure to justify requiring the safeguard of a ‘minded to’ letter under regulation 8(2) of the Allocation of Housing and Homelessness (Review Procedures) Regulations 1999. That letter offered an opportunity to make representations, and the Regulations must be construed purposively in that light. It was artificial to distinguish between new matters and matters always known to the applicant. So long as the assertion of confusion was at all plausible, a regulation 8(2) letter must be sent (and if it was not, there must be full reasons as to why not): Mohamoud v Birmingham City Council [2014] EWCA Civ 227.

Where a review is carried out under the 1999 Regulations, nothing in the Regulations (which distinguished between the original decision and the review decision) or in sections 202-203 (which were framed in the present tense) of the Housing Act 1996 obliged the reviewing officer to come to more favourable decision. It was perfectly possible that a less favourable decision might be the outcome. As a result, a review of a decision which the applicant to be homeless but not in priority need could lawfully conclude that the applicant was not even homeless: Temur v Hackney London Borough Council [2014] EWCA Civ 877. There was no prohibition on taking into account events subsequent to the review application (Mohammed v Hammersmith & Fulham London Borough Council [2001] UKHL 57; [2002] 1 AC 547), and the fact that the applicant had acquired accommodation in the meantime was an appropriate consideration. The scarcity of social housing meant that as a matter of policy it would be extraordinary if homelessness duties continued to apply to a person who was no longer homeless.

The obligation on a reviewing officer to give full and proper reasons encompasses consideration of the Homelessness Code of Guidance for Local Authorities, the applicant’s explanation for her expenditure (where the decision was one of intentional homelessness because of failure to pay rent), the housing officer’s judgment about non-essential items of expenditure and whether other items of expenditure were excessive. The more detailed the justification produced by the applicant, the more detailed the reasons for rejecting that justification were required: Farah v Hillingdon London Borough Council [2014] EWCA Civ 359.

Priority Need

K was a married man with a 21 year old son, living in private rented accommodation, having been assessed by the local authority as at greater risk because of a medical condition. When given notice to quit his private accommodation, the authority declined to classify him as being in priority need because he could control his condition with medication and had a stable family support network to help him cope. A challenge to the reliance on a stable support network failed. The reviewing officer, who would have considerable practical experience, had not failed to evaluate the risk, and was not obliged to refer the point to the medical assessment service. K had access to treatment though his GP and hospital. Moreover, the public sector equality duty could not extend to requiring a housing authority to secure accommodation for a disabled person where their disability did not render them vulnerable: Kanu v Southwark London Borough Council [2014] EWCA Civ 1085.

Homelessness and Legal Aid

An appeal under section 204 of the Housing Act 1996 had to fall within the public law category of legal aid within the meaning of paragraph 19(1) of Part I of Schedule 1 to the Legal Aid, Sentencing and Punishment of Offenders Act 2012, which applies only to judicial review. A section 204(1) appeal was “an appeal on any point of law”, not a judicial review (in contrast to a matter under section 204A). Although there was substantial overlap between an appeal on a point of law and judicial review a body with jurisdiction over appeals on a point of law was not required to apply judicial review principles in every case. Section 204 appeals fell outside paragraph 19(1) and there was no entitlement to legal aid: Bhatia Best Ltd v Lord Chancellor [2014] EWHC 746 (QB).

 

The NPPF – what does it really mean?

September 12th, 2014 by Heather Emmerson in Planning and Environmental

The consolidation of planning policy into a single national framework has undoubtedly simplified the task of identifying the planning policies of relevance to a particular development proposal. However, the consequence of the Supreme Court’s decision in Tesco Stores v Dundee City Council [2012] UKSC 13 is that the correct interpretation of planning policy is ultimately a matter for the Courts. The case law has made clear that the approach in Tesco Stores applies equally to the NPPF (see R (on the application of Hunston Properties Limited) v Secretary of State for Communities and Local Government [2013] EWCA Civ 1610) and when considering a point of interpretation, the NPPF should be construed as a whole (see Bayliss v Secretary of State for Communities and Local Government [2013] EWHC 1612 at [18].)

In the last six months alone, there have been no less three challenges concerning the proper interpretation of the NPPF.

Paragraph 88 and “any other harm” to the Green Belt

In Redhill Aerodrome Ltd v Secretary of State for CLG and Tandridge DC [2014] EWHC 2476 (Admin) the High Court considered the meaning of “any other harm” in paragraph 88 of the NPPF.  Paragraph 88 provides as follows:

“When considering any planning application, local planning authorities should ensure that substantial weight is given to any harm to the Green Belt. ‘Very special circumstances’ will not exist unless the potential harm to the Green Belt by reason of inappropriateness, and any other harm, is clearly outweighed by other considerations”

The Court held that “any other harm” in paragraph 88 meant only harm to the green belt. Patterson J held (at [56]) that “I have no difficulty in concluding that, in this case, it was not right to take the identified non Green Belt harms into account. The revised policy framework is considerably more directive to decision makers than the previous advice in the PPGs and PPSs. There has, in that regard, been a considerable policy shift. Where an individual material consideration is harmful but the degree of harm has not reached the level prescribed in the NPPF as to warrant refusal, in my judgment, it would be wrong to include that consideration as “any other harm””.

Paragraph 89 and “building”

In Lloyd v Secretary of State for CLG and Dacorum BC [2014] EWCA Civ 839 the Court of Appeal considered paragraph 89 of the NPPF which provides, in so far as material, as follows:

“A local planning authority should regard the construction of new buildings as inappropriate in Green Belt. Exceptions to this are … the replacement of a building, provided the new building is in the same use and not materially larger than the one it replaces”.

The Court of Appeal held that on the proper construction of the NPPF the term “building” did not include a mobile home. The replacement of a mobile home with a building on a green belt site therefore amounted to inappropriate development. In reaching this conclusion the Court had regard both to the ordinary meaning of the word “building” and the context within this word was used in relevant statutory context and the NPPF. 

Paragraph 90 and “mineral extraction”

In Europa Oil & Gas Ltd v Secretary of State for CLG and Surrey CC [2014] EWCA Civ 825, the Court of Appeal considered the meaning of “mineral extraction” within paragraph 90 of the NPPF. The Court held that a proposed development which involved exploratory drilling for hydrocarbons in the green belt was “mineral extraction” for the purposes of the National Planning Policy Framework para.90 and a local development plan policy. The Court made the point (at [15]) that “on the face of it, the NPPF is a stand-alone document which should be interpreted within its own terms and (at [32]) “the interpretation to be given to “mineral extraction” in paragraph 90 has to take account both of the specific context and of other indicators within the NPPF itself”. Having regard to the provisions of the NPPF, the Court of Appeal concluded that explanatory drilling would be included within the definition of mineral extraction.

Validity of Ministerial Statement

The Government has also made efforts to clarify parts of the NPPF. For example, in a ministerial statement dated 1 July 2013, the Government set out that the single issue of unmet demand for housing was unlikely to outweigh harm to the green belt and constitute the very special circumstances justifying inappropriate development in the green belt

Whilst it may be thought that such a statement provides a gloss on the NPPF, in the recent case of Copas v SoS for CLG and Windsor and Maidenhead[2014] EWHC 2634 (Admin), Supperstone J held that the ministerial statement did not amount to a variation or extension of pre-existing planning policy, but rather simply clarified the meaning of the NPPF. Therefore, an inspector had correctly treated the ministerial statement as a material consideration in her decision to refuse planning permission for affordable housing in the green belt.

 

Council Tax Reduction Scheme

August 5th, 2014 by James Goudie KC in Council Tax and Rates

Pursuant to the Local Government Finance Act 2012 Sandwell Council adopted a Council Tax Reduction Scheme.  For working age council taxpayers this was restricted to those who have lived in the Council’s area for over 2 years: the residence requirement.  In R (Winder) v Sandwell MBC (2014) EWHC 2617 (Admin) Hickinbottom J upheld a judicial review challenge to the residence requirement.  The principal ground on which he did so was that it was unlawful as being ultra vires.  The Judge ruled that the residence requirement went beyond the criteria, referenced on financial need, by which, pursuant to the legislation, classes for council tax reduction can be defined. He said, at para 53, that the class must be defined by reference to financial need, albeit by reference to criteria which the authority considers identify those who are, in general, in financial need.  There is considerable discretion in the authority as to the criteria adopted to identify financial need, but, said the Judge, criteria which do not identify those who are at least more likely to be in financial need fall outside the powers granted to an authority by Parliament. 

Alternatively, para 58, the residence requirement was, the Judge held, the use of the statutory power, to relieve those in financial need from the full burden of council tax, for an unauthorized purpose, which the Judge found to be, to discourage people from areas of higher housing cost from moving to Sandwell.

 

 

Appropriation of Land

August 5th, 2014 by James Goudie KC in Land, Goods and Services

R (Maries) v Merton LBC (2014) EWHC 2689 (Admin) concerned the exercise by the Council of its powers of appropriation of land under s122(a) of the Local Government Act 1972 and whether land is no longer held for the purposes for which it is currently held.  The land in question is a recreation ground acquired pursuant to s164 of the Public Health Act 1875 on trust for the enjoyment of the public.  The Council proposed to expand an adjacent primary school onto part of the recreation ground.  The Court, para 59, distilled 3 material principles: (1) whether land is still or is no longer required for a particular purpose, meaning no longer needed in the public interest of the locality for that purpose, is a question for the local authority, subject only to Wednesbury;  (2) the legislative provision is concerned with relative needs or uses for which public land has or may be put, and does not require it to fall into disuse before the authority may appropriate it for some other purpose; and (3) the authority is entitled when exercising its appropriation power to seek to strike a balance between comparative local needs and to take a broad view of local needs.

Applying those principles, the Court rejected the judicial review challenge to the appropriation of part of the recreation ground.  The correct statutory question had been addressed; the approach to considering the competing needs and to the question whether the land was no longer required for the purpose for which it was held had not been flawed; and the decision was not irrational.  In any event, paras 88-91, the Judge would have denied relief.

 

Capital Finance and Companies

July 30th, 2014 by James Goudie KC in Capital Finance and Companies

A challenge by a number of local authorities from the South Yorkshire and Merseyside Regions to the decision of the Secretary of State for Business, Innovation and Skills (“the SoS”) to change the allocation of EU Structural Funds in a manner that was disadvantageous to them, having failed at first instance, R (Rotherham BC) v SoS [2014] EWHC 232 (Admin), (2014) LGR 389, save in relation to the PSED, has now failed in the Court of Appeal, [2014] EWCA Civ 1080.  In particular, the claimant authorities sought to challenge the allocation of EU Structural Funds for the period 2014-2020 as between the four countries of the United Kingdom, and as between the English regions.  Articles 174-178 of the Treaty on the Functioning of the European Union require the EU to promote its overall harmonious development and strengthen its economic, social and territorial cohesion by reducing disparities between the levels of development of the various regions through the Structural Funds.  The allocation of the Structural Funds is determined by EU Council Regulations and the authorities of the Member States.  In March 2013 the SoS took a decision, effectively, to allocate higher funding than previously to Northern Ireland, Scotland and Wales.  In a further decision in June 2013 allocations were reduced for South Yorkshire and Merseyside.  Overall, the claimant authorities suffered a substantial fall in funding.  They alleged that the two decisions by the SoS have produced discriminatory and disproportionate funding cuts for their Regions, and breached the EU law principles of equal treatment and proportionality. 

It was common ground that, in making the first and second decisions, the SoS was acting within the scope of EU law and that accordingly the EU law principles of proportionality and equal treatment apply.  It was also common ground that the “margin of discretion” allowed by EU law may be broad or narrow according to the circumstances of the case, in particular the identity of the decision-maker, the nature of the decision, the reasons for the decision and the effect of the decision. Of these factors, the Court of Appeal said, at para 54, that “the nature of the decision is usually the most important”.  The Court of Appeal considered, at para 56, that the margin of discretion was “a wide one in the circumstances of this case”.  They stated, at para 57:-

“In our view, the first and second decisions were plainly concerned with matters of high level policy and economic, social and political judgment.  They involved the making of choices as to funding allocations between the regions. … Even if the only objective was the reduction of the disparities between levels of economic development of regions, that would involve the making of complex assessments of their respective economic circumstances.  These are not hard-edged decisions which admit of clear and straightforward answers. … In our view, this is classic territory for affording the decision-maker a wide margin of discretion.  … the Court should only interfere if satisfied that the decisions were manifestly inappropriate or manifestly wrong.”

The Court of Appeal then proceeded to consider whether the decisions were disproportionate and/or irrational.  They concluded, at para 64, that they came nowhere near to being that.

Turning to equal treatment, the Court of Appeal observed that the equal treatment principle requires that comparable situations must not be treated differently and different situations must not be treated in the same way, unless such treatment is objectively justified.  The question in the case was whether there was a failure to treat like cases alike and unlike cases differently, or rather what margin of discretion (if any) should be afforded to the SoS in deciding whether different categories are like or unlike each other (“the comparability issue”).  The Court of Appeal said:-

“70.     … We see no reason in principle why the width of the margin of discretion in relation to a decision on comparability should be approached differently from any other decision made within the scope of EU law.  In other words, it may be broad or narrow according to the circumstances of the case and in particular the nature of the decision: … In a simple case of discrimination, there may be no margin of discretion at all in deciding the comparability issue.  … But some comparisons are less straightforward and are not so clear cut.  They may involve making complex evaluative judgments as to which there is real scope for differences of opinion.  In principle, the more complex and the more judgment-based the decision, the greater the margin of discretion should be afforded to the decision-maker.”

“72. … The context in which the first and second decisions were taken is critical to the intensity of the court’s review of them. … The Secretary of State was required to have regard to a number of different overlapping considerations, and the regulation does not prescribe the weight to be given to each of them. … the reduction of regional disparities does not involve a simple comparison of the development level and economic performance of one region with another.  … It is a complex exercise. It includes not only making comparisons of the economic performance of different regions, but also inter alia of their respective employment rates for different age groups, their respective conditions for research and development and their respective  greenhouse gas emissions.  Each of these comparisons might individually involve making judgments.  Overall, the exercise of comparing one region with another is or ought to be multi-factorial.  It involves making a substantial number of value judgments of an economic and social nature.  In our view, the decision-maker is entitled to a wide margin of discretion in making such a decision.”

The Court of Appeal expressed its overall conclusion on the equal treatment issues as follows, at paragraph 86:-

“… For the reasons already given, the Secretary of State was entitled to a wide margin of discretion in deciding questions of comparability.  We agree with the judge that the court should only interfere if a high standard of unreasonableness is met.  The evidence of Dr Baxter shows that the Secretary of State approached the task of allocating the funds in a careful and systematic way and had particular regard to the relative position of the different regions.  He gave particular consideration to the position of Merseyside and South Yorkshire.  We are satisfied that the high threshold for interference by the court has not been crossed in this case.”

 

Consultation and PSED

July 30th, 2014 by James Goudie KC in Decision making and Contracts

In R (Sumpter) v Secretary of State for Work and Pensions [2014] EWHC 2434 (Admin) Hickinbottom J summarised, at para 94, the general law in relation to a consultation process as follows:-

“i) Whether required by statute or (as in this case) voluntary, if performed, consultation must be carried out properly (R v North and East Devon Health Authority ex parte Coughlan [2001] QB 213 at paragraph 108).

ii) Key features of a proper consultation process were set out in R v Brent London Borough Council ex parte Gunning (1985) 84 LGR 168 at page 189 per Hodgson J (as approved by the Court of Appeal in Coughlan at paragraph 108), namely:

(a) consultation is undertaken at a time when the relevant proposal is still at a formative stage;
(b) adequate information is provided to consultees to enable them properly to respond to the consultation exercise;
(c) consultees are afforded adequate time in which to respond; and
(d) the decision-maker gives conscientious consideration to consultees’ responses.

iii) However, fairness is the touchstone: for consultation to be lawful, it must be fair.  That is the test.  Although consideration of the particular facets of fairness identified in Coughlan may assist, whether the consultation process is fair is a fact-sensitive question that depends upon all the circumstances of the particular case looked at as a whole, and without drawing artificial distinctions between particular stages of the whole process  (R (Medway Council) v Secretary of State for Transport [2002] EWHC 2516 (Admin) at [28] per Maurice Kay J (as he then was), R (J L and A T Baird) v Environment Agency [2011] EWHC 939 (Admin) at [52] per Sullivan LJ, and R (Royal Brompton and Harefield Hospital NHS Foundation Trust) v Joint Committee of Primary Care Trusts [2012] EWCA Civ 472 at [9] per Arden LJ; see also R (Osborn) v Parole Board [2013] UKSC 61 at [64]-[71] per Lord Reed JSC).

iv) It is a matter for the court to decide whether a fair procedure was followed: its function is not merely to review the reasonableness of the decision-maker’s judgment of what fairness required (Osborn at [65] per Lord Reed).

v) If it is alleged that a consultation process is unfair, it is for the claimant to show that the unfairness was such as to render the consultation process unlawful.  Especially with the benefit of hindsight, it may well be possible to identify how a consultation process might have been improved; but, even if it was less than ideal, it will become unlawful only if what has occurred makes it unfair as a matter of law.  That is a substantial hurdle: in Baird, Sullivan LJ said that “in reality a conclusion that a consultation process has been so unfair as to be unlawful is likely to be based on a factual finding that something has gone clearly and radically wrong (Baird at [51]; see also Royal Brompton at [13] per Arden LJ).

vi) The consultation documents must be intelligibly clear to the general body of interested persons, and present the issues fairly and in a way that facilitates an intelligent and effective response (R (Breckland District Council) v The Boundary Commission [2009] EWCA Civ 239 at [46] per Sir Anthony May P, and Royal Brompton at [8]-[14] per Arden LJ).

vii) To be fair and proper, consultation must be performed by the decision-maker with an open mind.  However, an open mind is not the same thing as an empty mind (R (Royal Brompton and Harefield NHS Foundation Trust) v Joint Committee of Primary Care Trusts [2011] EWHC 2986 (Admin) at [16] per Owen J, adopting a phrase used in the course of argument by Neil Garnham QC).  Therefore, whilst a decision-maker cannot have a predetermined option, such that consultation is a sham, he may have a preferred option; but he must disclose that to potential consultees “so as to better focus their responses” (R (Sardar) v Watford Borough Council [2006] EWCA 1590 (Admin) at [29] per Wilkie J).  A consultation may properly be focused upon a limited number of options or even a single proposal.

viii) The process must be considered as a whole; and, therefore, where a decision-maker is in fact prepared to accept and consider further representations after the close of the formal consultation, then those subsequent events can be taken into account in assessing whether the process was fair; although it may be appropriate to give those subsequent events less weight, because (eg) the opportunity to make representations was not given such widespread publicity as was given during the formal process (Baird at [52]).

ix) In cases where there has been a consultation exercise, and it is decided to have a further consultation, the fairness of that further exercise must be considered in the context of the earlier and fuller consultation process.  In such cases, it may not be unfair to any interested party for the further consultation exercise to be more limited, whether as to the identity of consultees, or the content and duration of the consultation (R (Milton Keynes Council) v Secretary of State for Communities and Local Government [2011] EWCA Civ 1575, especially at [36]-[38]).

x) Proper consultation is an important part of the decision-making process.  The purposes of requiring fairness in procedural matters such as consultation include to ensure high standards of decision-making by public bodies, to enable parties interested in the subject matter to identify and draw to the attention of the decision-maker relevant factors which he may have overlooked to enable responses that will best facilitate a sound decision, and to avoid the sense of injustice which a person affected by a decision may otherwise feel if not given a proper opportunity to have their views known and taken into account (Osborn at [67]-[70]) per Lord Reed, and Baird at [41] per Sullivan LJ).  However, the obligations imposed upon a decision-maker in the course of consultation must not be unreasonably onerous, otherwise effective decision-making might be impaired and decision-makers might become reluctant to engage in voluntary consultation where (as in this case) there is no statutory duty to consult.”

At paragraph 117 the Judge added:-

“… R (Medway Council) v Secretary of State for Transport [2002] EWHC 2516 (Admin) … R (Montpeliers and Trevors Association) v City of Westminster [2005] EWHC 16 (Admin) … show that, although a decision-maker may formulate options on which to consult and restrict the consultation to that option or those options, in certain circumstances it may be unfair and unlawful to exclude an option from a consultation exercise.  They make clear that a decision-maker, as long as he keeps an open mind, might have a very much preferred option: what he cannot do is, for practical purposes, exclude a legitimate option.”

As regards the PSED, the Judge said, at para 137:-

 “The duty requires a “conscious directing of the mind to the obligations” (R (Meany) v Harlow District Council [2009] EWHC 559 (Admin) per Davis J (as he then was)), “due regard” being the appropriate regard in all the circumstances.  In R (Hurley) v Secretary of State for Business, Innovation and Skills [2012] EWHC 201 (Admin) at [78], Elias LJ illuminatingly explained:

“The concept of ‘due regard’ requires the court to ensure there has been a proper and conscientious focus on the statutory criteria, but if that is done, the court cannot interfere with the decision simply because it would have given greater weight to the equality implications of the decision than did the decision-maker.  In short, the decision-maker must be clear precisely what the equality implications are when he puts them in the balance, and he must recognise the desirability of achieving them, but ultimately it is for him to decide what weight they should be given in the light of all relevant factors.”

In R (Bailey) v London Borough of Brent Council [2011] EWCA Civ 1586 at [102], Davis LJ emphasised the importance of not interpreting the duty in such a way as to make decision-making unduly and unreasonably onerous.”

 

Predetermination

July 28th, 2014 by James Goudie KC in Decision making and Contracts

In IM Properties Development Ltd v Lichfield District Council [2014] EWHC  440 (Admin) Patterson J held that an e-mail sent by a committee chairman to members of the same political party telling them to vote in a particular manner fell within Section 25(2) of the Localism Act 2011 and was not to be taken as a predetermination.  She found, at para 86, that the tenor of the e-mail was not “so strident” as to remove the discretion on the part of the recipient as to how he or she would vote.  Patterson J added: “The debate shows a far reaching discussion between members and displays no evidence of closed minds in relation to the decisions that had to be taken”; and “A fair minded and reasonable observer in possession of all the facts would not be able to conclude on the basis of all the evidence that there was any real possibility of predetermination as a result of the e-mail …”.

 

Libraries

July 25th, 2014 by James Goudie KC in Land, Goods and Services

Many rounds of cuts include library closures.  In Draper v Lincolnshire County Council [2014] EWHC 2388 (Admin) a judicial review challenge to a decision to reduce library provision from 44 to 15 libraries succeeded.  It did so on two grounds.  One ground was that the authority had not properly considered an expression of interest from a charitable organisation to provide the services. The other ground was that consultation had not taken place at a formative stage.

Chapter 2 of Part 5 (Sections 81-85) of the Localism Act 2011 (“LA 2011”) introduced a mechanism by which civil society organisations can require local authorities to consider conducting a procurement exercise in relation to one or more of the services that they provide.  The basic structure is that a local authority is under a duty to consider an “expression of interest” that has been submitted to it by a “relevant body”.  An “expression of interest” is an expression of interest in providing or assisting in providing a service on behalf of the local authority.  A “relevant body” is a voluntary or community body, a charitable body, a parish council or two or more employees of the local authority at issue.  A voluntary body is one whose activities are not carried on for profit.   A community body is a body carrying on activities primarily for the benefit of the community.  There is no requirement that a “relevant body” have local connections.

Upon consideration of an expression of interest, one of three things can happen: it can be accepted, rejected or modified, but an expression of interest can be modified only in circumstances where the authority thinks that the expression of interest would not otherwise be capable of acceptance and the relevant body agrees to the modification.  In deciding whether to accept an expression of interest, the local authority must consider “whether acceptance of the expression of interest would promote or improve the social, economic or environmental well-being of the authority’s area”; and if a local authority accepts an expression of interest it must then carry out a procurement exercise: the exercise “must be such as is appropriate having regard to the value and nature of the contract that may be awarded as a result of the exercise”.

There have been made the Community Right to Challenge (Expressions of Interest and Excluded Services) (England) Regulations 2012, SI 2012/1313, Schedule 1 to which specifies requirements for expressions of interest.  Also, the Secretary of State has issued statutory Guidance.

In the Lincolnshire Libraries case, Greenwich Libraries Ltd (“GLL”), which manages libraries in the London Boroughs of Greenwich and Wandsworth, and which is a “relevant body”, submitted what Collins J found to be an Expression of Interest within Section 81 of LA 2011 made in time.  It proposed taking over the provision of the County’s library services and stated that it could do so retaining what existed and achieve savings.  Collins J found that the Expression of Interest was not “properly considered”: paras 46/47.

Further, consultation must of course be when proposals are at a “formative stage”.  At para 17 Collins J said:

“It is clear that it is proper for an authority to have a preferred option and to consult on the basis that that is what is proposed by the authority.  But for consultation to be meaningful the authority must be prepared to think again if those consulted are unhappy with the proposal and suggest a different solution.”

Collins J found, at para 27, that the consultation exercise was flawed.  This was because a central element in relation to the statutory service, namely to reduce it to 15 libraries with the targeting for those outside the 30 minutes travel area, could not be changed.

However, the inevitable PSED challenge failed, as did an irrationality challenge. The authority had identified the possible areas of discrimination and identified measures which it believed would ensure that there was no unlawful discrimination (para 50).  The “overwhelming objection” to the decision did not in itself mean that it was unlawful (para 53).  The decision to make the cuts was “a political one … which cannot be challenged in the Courts”:  “The need for cuts will inevitably produce hard decisions for many, but that does not make them unlawful”.

 

Rates

July 15th, 2014 by James Goudie KC in Council Tax and Rates

The Liquidator of a tenant company has disclaimed the lease.  The property is unoccupied.  Who then is the “owner” of the property for the purposes of non-domestic rates? Answer: the landlord.  So ruled Hickinbottom J in Schroder v Birmingham City Council [2014] EWHC 2207 (Admin).  The disclaimer determined the lease.  It gave the landlord the right to immediate possession.  It was irrelevant that the Insolvency Act 1986 preserved the contractual liabilities of the guarantor.  Those did not mean that the guarantor had a right to immediate possession.

 

Local Government Ombudsman

July 8th, 2014 by James Goudie KC in Non Judicial Control

Who can complain to the Local Government Ombudsman?  Basically, “a member of the public”: Section 26A of the Local Government Act 1974.  Who for this purpose is “a member of the public”?  An individual or “a body of persons”, whether incorporated or not, that does not come within either of the exclusions in Section 27.  The first exclusion is of a local authority or other authority or body constituted for purposes of the public service or of local government, or for the purposes of carrying on under national ownership any industry or undertaking or part of an industry or undertaking.  The second exclusion is of any other authority or body whose members are appointed by Her Majesty or any Minister of the Crown or government department or by the Welsh Ministers, or “whose revenues consist wholly or mainly of moneys provided by Parliament or the Welsh Ministers”.  The purpose no doubt of both exclusions is to avoid one public body invoking the Ombudsman to pursue a complaint of injustice which it attributes to another public body.

In The Matter of an Application by Armagh City and District Council for Judicial Review, [2014] NICA 44, the Northern Ireland Court of Appeal held that a GP partnership is a “body” for the purpose of similar exclusions in Northern Ireland legislation, but that, although the partnership was mainly publicly funded under the NHS, it did not come within the “… revenues … provided by Parliament …” exclusion of complainants from the Ombudsman’s jurisdiction.

 

« Older Entries
Newer Entries »