Indirect discrimination in allocation

January 10th, 2023 by James Goudie KC in Housing

In R(TX) v Adur District Council (2022) EWHC 3340 (Admin) the Court held that the Council’s local connection criterion for priority, albeit expressed neutrally, was  discriminatory, disproportionate, and unlawful. It put women at a disadvantage. Women were significantly more likely to be victims of domestic abuse and as a result have to move to the area of another local housing authority.

 

Disclosure of information

January 10th, 2023 by James Goudie KC in Non Judicial Control

In SPOTLIGHT ON COMPETITION v INFORMATION COMMISSIONER, EA-2022-0014 & EA-2022-0061, the First Tier Tribunal is concerned with loans to support businesses during the Covid pandemic, holds that it is not in the public interest to release information that could expose the recipients to fraudsters by revealing the recipients’ names, and summarises the principles relating to the “commercial interests “ exemption from disclosure under the Freedom of Information Act 2000 as follows : –

  1. “ Commercial interests “ should be interpreted “ broadly “ : paras 188/189;
  2. The exemption is “ prejudice based “ : para 190;
  3. The prejudice must be more probable than not : there must be a real and significant risk of prejudice : ibid;
  4. The public authority must show that (i) there is some causative link between the potential disclosure and the prejudice, and (ii) the prejudice is real, actual or of substance : ibid;
  5. The harm must relate to the interests protected by the exemption : ibid;
  6. It is a qualified exemption : para 191;
  7. In considering the factors that militate against disclosure the primary focus should be on the particular interest which the exemption is designed to protect : para 192;
  8. Where the specified activity or interest which would be likely to be prejudiced is a public interest, there is an overlap between whether or nor not the commercial interest exemption is engaged and any subsequent analysis of the public interest test : para313;

There is a public interest in preventing prejudice to commercial interests : para 314.

 

Substitution mindset

January 5th, 2023 by James Goudie KC in Judicial Control, Liability and Litigation

In considering whether a misconduct dismissal was fair or outside the band of reasonable responses open to the employer and unfair, an Employment Tribunal must guard against a “ substitution mindset “, both in relation to the employer’s investigation and the decision to dismiss, and consider the fairness of the disciplinary process as a whole : Leicester City Council v Chapman (2022) EAT 178 at paras 31-37 inclusive.

 

Exercise of powers in accordance with public law and fiduciary duties

January 5th, 2023 by James Goudie KC in Local Authority Powers

Croydon LBC v Oasis Community Learning (2023) EWHC 2 ( Ch ) is a debt claim by the Council acting as “ administering authority “for the London Borough of Croydon Pension Fund, which is part of the Local Government Pension Scheme ( the LGPS ). The defendant is a “ scheme employer “ for the purposes of the LGPS. The Court observes, at para 27, that the interaction between the public law and fiduciary duties of an administering authority for the purposes of the LGPS is not clearly established by authority, and is a “ a matter of some uncertainty “. It states, at para 33, that the LGPS does not constitute a trust, but that an administering authority does owe fiduciary obligations, as a quasi-trustee, to at least members of the LGPS.

 

ECHR ARTICLE A2P1

January 5th, 2023 by James Goudie KC in Human Rights and Public Sector Equality Duty

In R (Isherwood ) v Welsh Ministers (2022) EWHC 3331 ( Admin ) Steyn J considered the case law on the interpretation of Art A2P1 and summarised the points emerging from them : Paras 169-198 inclusive. She also stated ( at para 129 ) that common law constitutional rights can be abrogated by legislation expressly or by necessary implication, but only if it is crystal clear that the legislature intended to override the fundamental right. A reasonable implication will not suffice. The implication must be one that truly necessarily follows from the express provisions of the legislation, construed in their context.

 

Community infrastructure levy

December 23rd, 2022 by James Goudie KC in Planning and Environmental

Regulation 65(1) of the Community Infrastructure Levy Regulations 2010 sets a time limit within which levy liability notices have to be issued. Revised liability notices then can by Regulation 65(5) be granted at any time. Regulation 65(8) provides that on the issuing of subsequent liability notices any earlier notice “ ceases to have effect “. The Court of Appeal holds in R ( Braithwaite etc Properties ) v East Suffolk Council (2022) EWCA Civ 1716 that the issuing of a revised liability notice does NOT operate retrospectively to nullify the legal effect of an earlier liability notice. It cannot be treated automatically as having been a nullity and of no effect from the outset. Legal consequences follow. The point at which the earlier liability notice ceases to have effect is when the authority issues another liability notice in respect of the same chargeable development.

This is an illustration and application of the principle that a decision issued by a public authority is legally valid unless and until quashed. Those affected by decisions made by statutory authorities exercising their statutory functions are not generally entitled to disregard the legal consequences of such decisions on account of the decision-making procedure having allegedly been unlawful They must challenge them by appropriate means. This includes, where appropriate, by a timely claim for judicial review.

A liability notice is extant unless and until superseded by a revised liability notice or quashed by a Court.

 

Procurement

December 21st, 2022 by James Goudie KC in Decision making and Contracts

The Procurement Bill completed its Lords Stages on 13 December 2022. Its Second Reading in the House of Commons is scheduled for 9 January 2022. The House of Commons Library has on 20 December 2022 issued a Research Briefing on the Bill.

 

Planning Condition

December 15th, 2022 by James Goudie KC in Planning and Environmental

Is it lawful for a planning authority, in granting a planning permission for a development, to impose a planning condition that the developer will dedicate land within the development site to be a public highway? Answer: it would be unlawful. So reaffirmed by the Supreme Court in DB Symmetry Ltd v Swindon Borough Council (2022) UKSC 33.

 

Time Limits

December 12th, 2022 by James Goudie KC in Planning and Environmental

R ( Arthur ) v BARNET LBS ( “)”” ) EWHC 2933 ( Admin ) holds that Section 92 ( 3 ) of TCPA 1990 inserts a time limit condition on commencement of development into a planning permission that lacks any such condition.

It does not enable the remedy of a time limit consultation that is unlawful.

 

Procurement Bill

November 22nd, 2022 by James Goudie KC in Decision making and Contracts

The Procurement Bill has reached its Report Stage in the House of Lords. The Government has tabled further amendments. These include : –

  • A new duty on the face of the Bill to require contracting authorities to have regard to the participation of SMEs.
  • Making it clear that CAs may not generally require audited accounts to test the financial standing of bidders as part of the conditions of participation, or insurance relating to the performance of the contract to be in place before the award of the contract.
  • A new statutory duty on the Government to provide a central digital platform, free of charge.
  • Raising contract thresholds for publication of information.
  • Changing the test for conflicts of interest.
  • Implementing Recommendations of the Delegated Powers and Regulatory Reform Committee Report on 14 June 2022.

 

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