DISABILITY DISCRIMINATION

January 10th, 2022 by James Goudie KC in Judicial Control, Liability and Litigation

Section 29(6) of the Equality Act 2010 on exercise of a public function does not provide a remedy equivalent to Section 39(2) of that Act on discrimination against employee. So held in Eckland v Chief Constable of Avon & Somerset (2021) EWCA Civ 1961, because the former claim has to be brought in the County Court, whereas the latter can be pursued in an Employment Tribunal. There are a number of material differences between the two jurisdictions, including that it is the ET which has the appropriate expertise for determining discrimination disputes in the employment field, and both the costs regime and the available remedies are different.

 

Extension of Limitation Period

December 23rd, 2021 by James Goudie KC in Judicial Control, Liability and Litigation

The 30 day limitation for procurement claims is a short one, but the Courts have repeatedly emphasised that it should be observed. In Access for Living Limited v Lewisham LBC (2021) EWHC 3498 ( TCC ) Jefford J says : –

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Disabled Adults

December 22nd, 2021 by James Goudie KC in Social Care

Section 1 of the Care Act 2014 (the Act) creates a general duty for local authorities to promote individual well-being (not defined in the Act) when exercising a function under Part 1 of the Act. Section 9 creates a duty to assess an adult’s needs for “care and Support”. . . Section 13 imposes a duty to determine whether any assessed needs meet the relevant eligibility criteria under Regulations. Section 18 imposes a duty to meet the needs of disabled adults for both “care” and “support”. Section 19 confers a power to meet an individual’s needs for “care and support” in circumstances where the Section 18 duty does not arise. By Sections 24 & 25 a Care and Support Plan must be prepared.

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Fundamental Principles

December 16th, 2021 by James Goudie KC in Decision making and Contracts

In R (Police Superintendents Association) v Her Majesty’s Treasury (2021) EWHC 3389 (Admin) the Judge sets out the principles relating to Consultation at paras 122-130, relating to the PSED at paras 131-138, and relating to Substantive Legitimate Expectation at paras 139-144.

 

Houses in Multiple Occupation: December 2021

December 9th, 2021 by James Goudie KC in General, Housing

In Palmview Estates v Thurrock Council (2021) EWCA Civ 1871 the Court of Appeal consider the “reasonable excuse” defence in Section 75 (2) of the Housing Act 2004. There is a defence if, viewed objectively, there is reasonable excuse for having control of or managing a HMO without a licence. The reasonable excuse must relate to the activity of controlling or managing the HMO without a licence.

 

 

Modern Slavery

December 3rd, 2021 by James Goudie KC in Human Rights and Public Sector Equality Duty

Art 4 of the ECHR provides that no one shall be held in slavery or servitude. Positive duties are implicit in Art 4: (1) a systems duty, a general city to implement measures to combat trafficking; (2) an investigation duty, to investigate situations of potential trafficking; and (3) a protection duty, or operational duty, to take steps to protect individual victims of trafficking. The protection duty is engaged when state authorities are aware of circumstances giving rise to a credible suspicion that an identified individual has been, or was at real and immediate risk of being, trafficked or exploited. See R (H) v Swindon BC (EWCA) Civ 1836.

 

Fairness

December 1st, 2021 by James Goudie KC in Decision making and Contracts

There may be a general implied duty upon an employer to act procedurally fairly in the context of disciplinary processes. However, fairness does not impose a general disclosure obligation. See Burn v Alder Hey NHS Trust (2021) EWCA Civ 1791.

 

EXPERIMENTAL TRAFFIC ORDERS

November 26th, 2021 by James Goudie KC in Environment, Highways and Leisure

The statutory objections procedure before the making of a Permanent Order in the same terms as an ETO does not operate as a bat to the local authority revoking the ETO. So held in R ( Keyhole Bridge User Safety Group ) v Bournemouth, Christchurch & Poole Council (2021) EWHC 3082 ( Admin ).

 

HOMELESSNESS AND JOB PROSPECTS

November 26th, 2021 by James Goudie KC in Housing

The evidence relating to intentional homelessness is evidence bearing on the reason why the applicant is homeless. The local authority’s investigation duties relate to homelessness, not unemployment. An appreciation of local job prospects is relevant only insofar as it explains why it is that the applicant is homeless. It is not necessarily relevant to the applicant’s homelessness. There may, or may not, be a sufficient linkage between them. The duty to investigate is to make necessary enquiries. It is not a duty to make all possible enquiries. So held in Ciftci v Haringey LBC (2021) EWCA Civ 1772.

 

INJUNCTIVE RELIEF IN A PUBLIC LAW CONTEXT

November 26th, 2021 by James Goudie KC in Judicial Control, Liability and Litigation

Whether or not to grant an injunction in a public law case involves the exercise of a discretion which takes all relevant matters into account. These include the strength of the case advanced by the party seeking relief. That however, is not the application of a rigid test. Other important factors to be taken into account are (1) the particular decision under challenge, (2) the interests of the public in general that are involved, and (3) the broader legal framework. See para 52 in R ( S & S ) v HMRC (2021) EWHC 3174 ( Admin ).

 

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