CONCESSION CONTRACTS

July 5th, 2023 by James Goudie KC in Decision making and Contracts

What constitutes a concession? When does a contract come within the Concession Contracts Regulations 2016 rather than the Public Contracts Regulations 2015? Why may it matter? These were issues covered in OCEAN OUTDOOR v HAMMERSMITH & FULHAM LONDON BOROUGH COUNCIL (2019) EWCA Civ 1642 and DUKES BAILIFFS v BRECKLAND COUNCIL (2023) EWHC 1569 (TCC). There are different financial thresholds. There are different procurement procedures. There are different permissible selection criteria.

In the context of a services contract, there are 5 main elements of a concession contract within the 2016 Regulations.

FIRST: the contract concluded in writing must be identified; and not excluded by the land exemption.

SECOND: this contract must be one where a contracting authority entrust to an economic operator for “pecuniary interest” the legally enforceable obligation to provide and manage services to or for the public which the authority would otherwise provide itself for its residents (or someone else).

THIRD: the consideration for the contract must consist either solely in the right to exploit the services or in that right together with payment.

FOURTH: a transfer of “operating risk” must be involved.

FIFTHLY: a real risk of potential loss must be involved.

 

PSED

June 29th, 2023 by James Goudie KC in Human Rights and Public Sector Equality Duty

“ The PSED is primarily directed at policy decisions not at the application of policy to individual cases “ : so says the Supreme Court in R ( MAROUF ) v SSHD (2023 ) UKSC 23 at paragraph 62. The Court holds that Section 149 of the Equality Act 2010 does not require public bodies to have due regard to the need to promote the goals there listed when exercising their functions in so far as that exercise affects the lives of people living outside the UK.

 

COMMON LAND REGISTER

June 28th, 2023 by lawrence in Land, Goods and Services

In RUSHMER v CENTRAL BEDFORDSHIRE COUNCIL (2023) EWHC 1341 (Ch) the Council was responsible, under the Commons Registration Act 1965 ( the 1965 Act ), for maintaining a Common Land Register for its area. The High Court made declarations as to the reliability of a photocopy Register entry and which map was the one adopted for the Register. The Court did not have power to correct or clarify the Register, but it did have power, outside administrative law processes, to identify the Register and restore to the public record the true decision that the commons registration authority had made. This was in order to provide certainty and was not prevented by Section 10 of the 1965 Act.

 

DISABILITY-RELATED EXPENDITURE (DRE)

June 19th, 2023 by James Goudie KC in Social Care

Part 1 of the Care Act 2014 relates to Care and Support. Section 1 sets out general responsibilities of local authorities. Sections 14-17 inc are concerned with charging and assessing financial resources. Section 14 gives authorities a power to charge. It provides for Regulations. They are the Care and Support ( Charging and Assessment of Resources ) Regulations 2014, S.I. 2014/2672. The Regulations are supplemented by Statutory Guidance. DRE is excluded from the assessment. In RW v WINDSOR & MAIDENHEAD RBC ( 2023 ) EWHC 1449 ( Admin ) the Court rules that group activities forming part of a vulnerable adult’s care plan, namely attending a local social and life skills support group, were DRE. The costs were (1) disability – related, (2) necessarily and reasonably incurred and proportionate, and (3) for care and support.

 

MANDATORY RELIEF FROM BUSINESS RATES

June 8th, 2023 by James Goudie KC in Council Tax and Rates

MERTON LONDON BOROUGH COUNCIL v NUFFIELD HEALTH (2023) UKSC 18 concerns Sections 43(5) and (6)(a) of the LOCAL GOVERNMENT FINANCE ACT 1988 and the interaction between rating law and charity law. Section 43 provides for a mandatory 80% relief from business rates when the ratepayer is a charity (or trustees for a charity) AND the hereditament is “wholly or mainly” used for “charitable purposes”. Nuffield Health is a registered charity. It has a members-only gym in the Council’s area. The decision was that Section 43(6) does NOT require the question whether the premises were used for charitable purposes to be decided by reference to the activities carried on there alone. Rather, the question was whether Nuffield Health was using the Merton Abbey gym for the pursuit of its charitable purposes, viewed in the context of its charitable activities AS A WHOLE. Applying that test Nuffield Health succeeded, EVEN IF persons of modest means were excluded from using the facilities at the Merton Abbey gym by reason of the fees charged there.

The Supreme Court addressed:-
(1) The History of the Applicable Law: paras 12-12 inc;
(2) The Principles of Charity Law relevant to the construction of Section 43(6): paras 22-32 inc;
(3) The Principles of Rating Law relevant to the construction of Section 43(6): paras 33 and 34;
(4) The Principles of Statutory Construction: paras 35-38 inc;
(5) Authorities on Section 43(6), its Predecessors and Equivalents: paras 39-44 inc;
(6) Construing 43(6): paras 45-62 inc; and
(7) The Application of Section 43(6) to the Facts: paras 63-66 inc.

The Supreme Court said in relation to House of Lords authorities on the effect of the formula now used in Section 43(6), GLASGOW CORPORATION v JOHNSTONE and OXFAM v BIRMINGHAM COUNCIL: –

“43. These authorities indicate that in order to qualify for relief under the statutory formula, the hereditament must be wholly or mainly used directly for activities which constitute the carrying out of the charitable purposes of the charity or, by a modest extension, for activities which directly facilitate or are wholly ancillary to the carrying out of those purposes.

44. …in our judgment the activities carried on by Nuffield Health at Merton Abbey gym were directly for the fulfilment of its charitable purpose of promoting health through exercise, within the core sense of the term, without need to rely on the extended sense laid down in the Glasgow Corpn and Oxfam cases…”

“53. …a charity cannot have non-charitable purposes, but can carry on other intra vires incidental activities, such as fund raising, head office management, investment and the provision of staff accommodation…”

The Supreme Court continued:-

“55. The same interpretation also tends to serve the statutory objective of providing a generally simple, predictable and consistent answer to the question whether a charity ratepayer should have relief from business rates, depending upon its sole or main use (or prospective use) of the hereditament, as recommended in the Pritchard Report. At least it does so better than Merton’s interpretation, when there is no issue as to whether the ratepayer is a charity. All that the rating authority has to do is to ascertain what is or are the (necessarily charitable) purposes of the charity, and then decide whether in fact the sole or main use of the hereditament is in furtherance of those purposes, or sufficiently closely connected with their fulfilment. The purpose or purposes of the charity will usually be apparent from its constitution, or (if registered) by a simple online inspection of the register maintained by the Charity Commission. The question whether that purpose or those purposes are fulfilled by the sole or main use of the hereditament is a factual matter, and will not require the rating authority to don the cloak of the Charity Commission or the robe of the Chancery judge to decide whether those purposes are charitable.

56. The position is not so simple where the ratepayer claims to be a charity but is not registered as such. Non-registration does not necessarily mean that the ratepayer is not a charity and in such a case the rating authority would have to conduct a conventional charity law analysis of that question, having regard to the terms of the ratepayer’s written constitution or, if there is no written constitution or the written constitution is not decisive, to the actual facts about the whole of the ratepayer’s activities. That enquiry would of course reveal the ratepayer’s purposes, and they would all have to be charitable if the ratepayer was to be regarded as a charity…”

“58. In the context of Section 43(6) (and its predecessor, Section 11 of the 1961 Act), it is clear that Parliament did not intend that a counter-factual analysis should be adopted. On the contrary, it intended that the relevant analysis should proceed by reference to the general law of charity. The law assesses whether a body’s purposes are charitable by looking at its purposes and activities overall, not on a site-by-site basis. To try to apply Section 43(6) by employing a site-by-site analysis as Merton contends would involve a departure from, not the application of, the approach applied under the general law of charity.”

The case concerned a health charity, but it is clear that the same principles are to be applied to an education charity.

 

DISCRIMINATION

June 7th, 2023 by James Goudie KC in Human Rights and Public Sector Equality Duty

Section 390(1) of the Education Act 1996 provides that a local authority in England shall constitute a Standing Advisory Council on religious education for the purposes mentioned in Section 391(1). Section 390(2) provides that such a Council shall consist of such groups appointed by the authority as representative members ( representative groups ) as are required by subsection (4). Subsection (4)(a) states that the representative groups so required are, in the case of an area in England, a group of persons to represent such Christian denominations and other religions and denominations of such religions as, in the opinion of the authority, will appropriately reflect the principal religious traditions in the area. In R ( BOWEN ) v KENT COUNTY COUNCIL (2023) EWHC 1261 ( Admin ) Constable J holds that the County Council’s refusal to consider a humanist for membership of its Standing Council was unlawful. It was discriminatory, pursuant to ECHR Article 14, in conjunction with Article 9 and Article 2 of the First Protocol, to exclude someone from membership solely by reference to the fact that their belief, whilst appropriate to be included within the agreed syllabus for religious education, in accordance with Section 80 of the Education Act 2002, was a non-religious, rather than a religious, belief.

 

AGREEMENT FOR HOLIDAY PAY ON TERMINATION OF EMPLOYMENT

June 6th, 2023 by James Goudie KC in Decision making and Contracts

The Working Time Regulations 1998 do not rule out all flexibility and modifications. In some circumstances agreements may be concluded to cover a situation. This may be a collective agreement or a workforce agreement and/or it may be a written “ relevant agreement “ or part of the written terms of a contract of employment. Regulation 13 of the WTR relates to entitlement to annual leave, Regulation 13A to additional annual leave, and Regulation 14 to compensation related to entitlement to leave. In CONNOR v CHIEF CONSTABLE OF SOUTH YORKSHIRE (2023) EAT 42 it is held that a “ relevant agreement “ as to the calculation of final holiday pay cannot be an agreement which would permit the employer to pay less under Regulations 13 & 13A in the case of an incomplete leave year than that which would be required under Regulation 14.

 

ROGUE LANDLORDS

June 1st, 2023 by James Goudie KC in Housing

KNAPP v BRISTOL CITY COUNCIL (2023) UKUT 118 (LC) is concerned with amongst other matters the scope of a banning order under Sections 14-17 inclusive of the Housing and Planning Act 2016. Counsel for the landlord submitted that the FTT had no power to impose a ban from continuing to manage properties which the landlord had previously let and where the tenancies or licences were continuing. This was rejected : see paras 62 & 63 of the UT Judgment. The power is not confined to the granting of a new tenancy. It extends to banning a person from being a landlord under an existing tenancy. “ Letting housing “ is capable of including a prohibition on being a landlord in respect of any tenancy, whether current at the time of the ban or not. It was not only new tenants who should be protected.

 

CONTRACTS AND ESTOPPEL

May 26th, 2023 by James Goudie KC in Decision making and Contracts

Basic contractual and estoppel principles are reaffirmed by Lewison LJ in McCARTHY v JONES (2023) EWCA Civ 589 at paras 17 and 36 : –

  1. Where a contract is contained in a written document the document will be interpreted without regard to the parties’ subjective understanding of what they had agree.
  2. By contrast, where there is an alleged oral contract, that understanding is admissible, at least to the extent of deciding (i) whether or not the parties had reached a concluded agreement, and (ii) if so, what its terms are.
  3. The principles applicable to the assertion of an estoppel by convention arising out of non-contractual dealings include that there must be words or conduct from which the necessary sharing of a common intention may be inferred.

 

Local government elections

May 22nd, 2023 by James Goudie KC in Elections and Bylaws

The majority decision in MAHARAJ v CABINET OF REPUBLIC OF TRINIDAD AND TOBAGO (2023) UKPC 17 concerned substituting four years for three years as the periods of office of Councillors and Aldermen, including apparently in the case of incumbents.  If so, incumbents would serve for an additional year with elections postponed for one year.  A judicial review challenge was brought to such a change to the basis upon which the incumbents had been elected.  The Privy Council observe (para 31) that it is an “essential element” of any democratic form of government that the electorate choose their representatives for a “limited period”: “The right to vote out representatives is as important as the right to vote in representatives”.  At the end of the period for which they were elected, the electorate has the right to decide whether they wish the incumbent representatives to remain in office, assuming they stand for re-election.  The Privy Council add (para 34) that it is inimical to a representative democracy that the representatives are chosen by anyone other than the electorate.

The principle of legality applied (paras 38-43 inc).  That is a principle of statutory interpretation that, in the absence of clear words, legislation will not be construed as being contrary to fundamental common law rights.  Fundamental rights or the rule of law cannot be overridden by general or ambiguous words. The fact that the democratic process, and the voting rights of individuals in that process, are derived solely from statute, and are not a product of the common law, does not diminish their fundamental importance.  Ambiguities in legislation are resolved in favour of democratic rights: “…the central importance of the statutory regime for democratic government … requires the use of clear language.”  The change should be interpreted as not applying to incumbents, rule the 3-2 majority of the Privy Council.

 

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