Qualifying Persons For Provision Of Social Housing: Local Connection/Long-Term Residents Priority

July 26th, 2018 by James Goudie QC in Housing

In R (Gullu) v Hillingdon LBC [2018] EWHC 1937 (Admin) Mostyn J said, at paragraph 22:-

“… this case concerns the provision of social housing by a local housing authority. In my opinion there is … in this field a generous margin of appreciation. The court should be very cautious indeed when faced with a claim to strike down a measure which seeks to parcel out fairly a local authority’s housing stock at a time where there is a national housing crisis and where the demand for public housing vastly exceeds the supply. Were the court to afford an advantage to a class of claimants … then it will be at the expense of another group who will find themselves jumped in the queue. When it comes to housing local authorities have to make hard political judgments of a macro-economic nature which the courts are ill-equipped to second-guess. These judgments are the expression of the local democratic process. Hence the need for there to be a strong and obvious case before the court will interfere.”

The Judge found that, if there were any discrimination in the Council’s allocation scheme, it was justified, and there was no failure to comply with the PSED.

 

Authorisation and declaration of election expenses

July 25th, 2018 by James Goudie QC in Elections and Bylaws

R v Mackinlay (2018) UKSC 42 is a pre-trial appeal concerning a point of pure statutory construction. The Respondents face charges of knowingly making false declarations in relation to election expenses, or aiding and abetting or encouraging or assisting such offences. The parties asked the judge to determine the point on a preparatory hearing.

The question of law certified by the Court of Appeal (Criminal Division) as a point of law of general public importance is as follows:

“Do property, goods, services or facilities transferred to or provided for the use or benefit of a candidate free of charge or at a discount (as identified in section 90C(1)(a) of the Representation of the People Act 1983 (as amended)) only fall to be declared as election expenses if they have been authorised by the candidate, his election agent or someone authorised by either or both of them?” Read more »

 

Employment Contracts

July 25th, 2018 by James Goudie QC in Decision making and Contracts

In James-Bowen v Commissioner of Police of the Metropolis (2018) UKSC 40 the Supreme Court addressed the implied duty of trust and confidence in employment contracts.  They said:-

“16.    The mutual obligation of employer and employee not, without reasonable and proper cause, to engage in conduct likely to destroy or seriously damage the relationship of trust and confidence required between employer and employee is a standardised term implied by law into all contracts of employment rather than a term implied from the particular provisions of a particular employment contract (Malik v Bank of Credit and Commerce International SA [1998] AC 20, per Lord Steyn at p 45D). It was described by Lord Nicholls in Malik at p 35A, as a portmanteau concept. In that case the House of Lords considered it the source of a more specific implied obligation on the part of the employer bank not to conduct its business in a dishonest and corrupt manner, the breach of which gave rise to a cause of action for damage to the economic and reputational interests of its employees. Similarly, in Eastwood v Magnox Electric plc [2004] UKHL 35; [2005] 1 AC 503 the House of Lords recognised an obligation on an employer, in the conduct of his business and in the treatment of his employees, to act responsibly and in good faith (per Lord Nicholls at para 11). The implied term has been held to give rise to an obligation on the part of an employer to act fairly when taking positive action directed at the very continuance of the employment relationship (Gogay v Hertfordshire County Council [2000] IRLR 703; McCabe v Cornwall County Council [2004] UKHL 35; [2005] 1 AC 503; Bristol City Council v Deadman [2007] EWCA Civ 822; [2007] IRLR 888; Yapp v Foreign and Commonwealth Office [2014] EWCA Civ 1512; [2015] IRLR 112; Stevens v University of Birmingham [2015] EWHC 2300 (QB); [2016] 4 All ER 258). Furthermore, any decision-making function entrusted to an employer must be exercised in accordance with the implied obligation of trust and confidence (Braganza v BP Shipping Ltd [2015] UKSC 17; [2015] 1 WLR 1661).” Read more »

 

Human Rights

July 25th, 2018 by James Goudie QC in Human Rights and Public Sector Equality Duty

A number of propositions are confirmed by the Court of Appeal in JT v First-Tier Tribunal (2018) EWCA Civ 1735:-

Proprietary Interest
1. Article 1/1 of the ECHR protects an individual’s right to peaceful enjoyment of possessions;
2. These include –

i) Various intangible rights, and
ii) Legitimate expectations to payments or assets of various kinds;

3.Welfare benefits are within its ambit; Read more »

 

NPPF

July 25th, 2018 by James Goudie QC in Planning and Environmental

MHCLG has published the first revision of the NPPF since 2012. Alongside the revised NPPF itself, MHCLG has published its response to the consultation on the draft revised NPPF, an equality impact assessment, updated planning practice guidance, guidance on housing and economic development needs assessments, and a policy paper on measurement of housing delivery.

 

Valued landscape

July 24th, 2018 by James Goudie QC in Planning and Environmental

In determining whether a proposed development site is a “valued landscape” within para 109 of the NPPF it is necessary to consider the site as part of the wider landscape, rather than limit consideration to the site’s particular characteristics. Para 109 “is not confined to landscapes which have a particular designation”. In most cases, a development site is but part of a wider landscape. So held by Ouseley J in CEG Land Promotions Ltd v SoS for CLG and Aylesbury Vale District Council (2018) EWHC 1799 (Admin).

 

Heritage asset

July 24th, 2018 by James Goudie QC in Planning and Environmental

Catesby Estates Ltd v Steer (2018) EWCA Civ 1697 concerned the “setting” of a listed building, a concept recognized by statute, and factors, such as the historic relationship between places, in addition to visual and physical considerations and impact. The Court of Appeal held that in the context of an application for planning permission for a development that would potentially affect a listed building or heritage asset, the duty imposed by the Planning (Listed Buildings and Conservation Areas) Act 1990 s. 66(1) to have special regard to the desirability of preserving the asset or its “setting” required the decision-maker to determine the extent of the asset’s setting and the impact of the development upon it. In doing so, the decision-maker had to take account of social, historical and economic, as well as physical and visual, factors.  The setting of a heritage asset was not statutorily defined and did not lend itself to precise definition.  However, implicit in s. 66(1) was the idea that setting could be affected by development, whether within or outside it. Thus, the decision-maker was required to understand what the asset’s setting was, and whether the development site either lay within it or was in some way related to it. Identifying the extent of an asset’s setting and whether the development would affect it was a matter of applying planning judgment to the circumstances of the case, and unless there was clear error of law in the decision-maker’s approach, the court should not intervene. The decision-maker had to have regard to relevant policy and guidance, and to the principle that considerable importance and weight had to be given to the desirability of preserving that setting.  For a proposed development to affect the setting, there had to be a distinct visual relationship between the two.  That relationship had to be more than remote or ephemeral, and it had to bear on how the asset was experienced in its surrounding landscape. However, that did not mean that other factors were to be ignored.  Economic, social and historical considerations were also relevant.

 

Children In Need

July 19th, 2018 by James Goudie QC in Social Care

The Appeal to the Supreme Court in Williams v Hackney LBC (2018) UKSC 37 concerned the limits of a local authority’s powers and duties to provide accommodation for children in need under s 20 of the Children Act 1989 (“CA”). The Supreme Court holds that there had been a lawful basis for the children’s continued accommodation under s 20. Read more »

 

Employment Contract

July 18th, 2018 by James Goudie QC in Decision making and Contracts

It is clearly implicit in a term in an employment contract conferring a contractual right to appeal against disciplinary action taking the form of dismissal that, if an appeal is lodged, pursued to its conclusion and is successful, the effect is that both employer and employee are bound to treat the employment relationship as having remained in existence throughout. This is not a matter of implying terms, but simply the meaning to be given to the words of the relevant contract, reading them objectively. By including a contractual right of appeal in the employment contract, the employer makes available to the employee a facility to seek to overturn the disciplinary decision made against him and to have the dismissal treated as being of no effect. If the appeal is successful, then subject to any other contractual provisions, the employee is entitled to be treated as having never been dismissed, to be paid all back pay and to have the benefit of all other terms of his contract of employment through the relevant period and into the future. Those terms include the usual implied duty of an employer to maintain trust and confidence. Conversely, if the employee exercises his right of appeal under the contract and does not withdraw the appeal before its conclusion, it is obvious on an objective basis that he is seeking to be restored to his employment and is asking and agreeing (if successful) to be treated as continuing to be employed under his contract of employment for the interim period since his previous dismissal and continuing into the future, so that that dismissal is treated as having no effect. It is not a reasonable or correct interpretation of the term conferring a right of appeal that a successful appeal results in the employee having an option whether to return to work or not. If an appeal is brought pursuant to such a term and is successful, the employer is contractually bound to treat the previous dismissal as having no effect and the employee is bound in the same way. That is inherent in the very concept of an appeal in respect of a disciplinary dismissal. Read more »

 

Allocation Policy

July 16th, 2018 by James Goudie QC in Housing

In R (TW, SW and EM) v Hillingdon LBC [2018] EWHC 1791(Admin) the Claimants challenged the Social Housing Allocation Policy (December 2016) (“the Allocation Scheme”) of the London Borough of Hillingdon (“the Council”) in so far as it provides: (1) a condition that only households with at least 10 years’ continuous residence in-borough qualify to join the three welfare-based bands (A-C) of its housing register (“the residence qualification”); (2) additional preference for such households who are in Bands C and B of the housing register (“the residence uplift”), and (3) additional preference for those in Bands C and B who are working households on low income (“the working household uplift”). Choudhury J granted permission on three grounds. First, that both the residence qualification and the residence uplift discriminate indirectly and unlawfully under Sections 19 and 29 of the Equality Act 2010 (“EA”) against persons with the protected characteristic of “race” and that, as Irish Travellers, the Claimants have such a characteristic (Ground 1). Second, that the working household uplift discriminates indirectly and unlawfully under the same statutory provisions against persons with the protected characteristics of “disability” and “sex” (Ground 2). Third, in formulating the three provisions under challenge the Defendant acted in breach of its obligations under Section 11(2) of the Children Act 2004 (“CA”) (Ground 3).

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