In R (AB) v BRISTOL CITY COUNCIL and ES and JX v DEVON COUNTY COUNCIL (2025) EWCC 1 a judicial review challenge failed to the entry by the Councils into “Safety Valve Agreements” with the Department of Education in relation to deficits in the Dedicated Schools Grant pursuant to Section 14 of the Education Act 2002. The allegations included breach of the duty to consult under Section 27(3) of the Children and Families Act 2014 and of the PSED. Linden J accepted (para 18) that there was a “powerful reason” for the Councils to take steps to address their deficits at the times when they decided to participate in the Safety Valve Programme and to enter into their SVA.
PSED
April 10th, 2025 by James Goudie KC in Human Rights and Public Sector Equality DutyThe Appellant in R (YVR) v BIRMINGHAM CITY COUNCIL (2025) EWCA Civ 393 is a severely disabled young man who will never be able to work and who is dependent on state benefits. His eligible social care needs have been assessed and are met by Birmingham City Council, which charges him for the provision of those services, as it is entitled but not obliged to do by the applicable legislation, Section 14 of the Care Act 2014 and Regulations. The issue on the appeal was whether the Council’s charging policy was adopted in breach of the PSED on the ground that the Council failed to have “due regard” to the need to eliminate discrimination and to advance equality of opportunity for severely disabled persons such as the Appellant. The Judge held that there was no breach of the PSED. The Appeal to the Court of Appeal failed.
BOUNDARY AGREEMENT
April 9th, 2025 by James Goudie KC in Land, Goods and ServicesThe Appeal in WHITE v ALDER (2025) EWCA Civ 392 is concerned with whether a boundary agreement binds successors in title and whether, if it is capable of doing so, it binds them only if they have knowledge of the agreement. Asplin LJ considered the relevant authorities at paras 21-53 inc. She concluded:-
ECHR ARTICLE 14
April 7th, 2025 by James Goudie KC in Human Rights and Public Sector Equality DutyIn SULLIVAN v ISLE OF WIGHT COUNCIL (2025) EWCA Civ 379, Underhill LJ observed, at paragraph 115, that it is often the case in claims based on Article 14 of the Convention that issues of analogous position, status and objective justification overlap. Lewis LJ reiterated, from paragraph 26, that:-
- Article 14 can be considered only in conjunction with the enjoyment of one or more of the substantive rights or freedoms set out in the Convention; and
- In general terms, the approach to the question of whether differential treatment is contrary to Article 14 involves consideration of four broad issues:
- does the subject matter of the complaint fall within the ambit of one of the Convention rights?;
- has the person making the claim been treated less favourably than other people who are in an analogous, or relevantly similar, situation?;
- is that difference in treatment based on an identifiable characteristic amount to a status?; and
- is the difference in treatment objectively justifiable? That in turn involves consideration of whether the measure giving rise to the differential treatment pursues a legitimate aim and whether there is a reasonable relationship of proportionality between the means employed and the aim sought to be realised. The burden is on those seeking to contend that measures are objectively justified to demonstrate that this is so.
ARTICLE 8
April 1st, 2025 by James Goudie KC in Human Rights and Public Sector Equality DutyIn N.S, v UK, Judgment 25 March 2025, the European Court of Human Rights is concerned about the making of a final adoption order and compliance with Article 8 of the European Convention of Human Rights. The issue ( paras 159/160 ) was whether the order was necessary in a democratic society. The Court set out (paras 165-171 ) the general principles relevant to child welfare measures. The Court finds no violation of Article 8.
EFFECTIVE CONDUCT OF PUBLIC AFFAIRS
April 1st, 2025 by James Goudie KC in Decision making and ContractsThe purpose of the qualified exemption from disclosure in Section 36 of the Freedom of Information Act 2000, prejudice to effective conduct of public affairs, is to protect, subject to the public interest balancing test, the free and frank provision of advice and the effective conduct of public affairs : GARRARD v ICO ( 2025 ) UK FTT 00343 ( GRC ) at para 128. However, the exemption was held not to apply.
DAMAGES FOR BREACH OF CONTRACT
April 1st, 2025 by James Goudie KC in Decision making and ContractsThe automatic suspension of contracts in procurement proceedings was lifted in MILLBROOK HEALTHCARE LTD v DEVON COUNTY COUNCIL ( 2025 ) EWHC 744 ( TCC ). Damages were an adequate remedy for the Claimant. This was held to be so even if the Council’s alleged breach was not sufficiently serious to result in damages.
MEETINGS AND VOTING
March 31st, 2025 by James Goudie KC in Decision making and ContractsConsideration has been given by the Supreme Court in R (SPITALFIELDS HISTORIC BUILDING TRUST) v TOWER HAMLETS LBC (2025) UKSC 11 to a provision in the Council’s statutory Constitution, in the form of Standing Orders, with Procedure Rules, adopted by it pursuant to Section 106 of and paragraph 42 of Schedule 12 to the Local Government Act 1972, which restricted voting by Committee Members at the final Meeting to decide a planning application to those who had been present at the Meeting or Meetings at which the application had been considered. This was, from para 41, per Lord Sales, held to be lawful. It was not contrary to paragraph 39 of Schedule 12. The statutory provisions should be read according to the natural and ordinary meaning of the language used. The right of a Councillor to vote could not be regarded as absolute or fundamental in the sense proposed by the appellant. A Councillor might be disqualified from voting in a particular case by statute or by common law rules, such as a conflict of interest, or appearance of bias. Read more »
FLEXIBLE USE OF CAPITAL RECEIPTS
March 26th, 2025 by James Goudie KC in Capital Finance and CompaniesThere has been an updated Direction and Statutory Guidance from the Ministry of Housing, Communities and Local Government to extend the freedom for local authorities to use eligible capital receipts to fund the revenue costs of projects that deliver ongoing savings or improved efficiency. The Direction, which revokes and replaces the Direction of the same name issued on 2 August 2022, extends the flexible use of capital receipts to 2030. It also removes the restriction with respect to redundancy costs that limits the use of the flexibility to statutory redundancy costs only. The Direction includes the requirement to submit the planned use of the flexibility in advance of use for each financial year.
COURT OF PROTECTION TRANSPARENCY
March 25th, 2025 by James Goudie KC in Judicial Control, Liability and LitigationUnder the Court of Protection Rules 2017 the general rule is that Court of Protection proceedings are to be heard in private unless the Court made an Order permitting other persons to attend. It is a contempt of court to publish information relating to Court of Protection proceedings where the Court was sitting in private, unless the Court ordered otherwise. The Court can order that a hearing be heard in public where there is good reason for doing so. The reasons for that regime were that those with mental capacity could deal with their private affairs confidentially and in private and those who lacked mental capacity should be entitled to the same privacy. The provision encapsulated the rights, under ECHR art 8, of persons who were vulnerable and whose involvement in Court proceedings arose from their vulnerability, not their choice. However, there will be cases where the public interest in an individual case outweighs the privacy considerations. The normal practice is for the Court to make a transparency order for the hearing to be in public, of its own motion, but with reporting restrictions to prevent the identification of the person lacking capacity, unless it appeared that there was good reason for not doing so. So held in W v P (2025) EWCOP 11 (T3).