The key questions raised by Joined Cases C-496/18 and C-497/18, HUNGOED, are (1) whether EU law permits reviews of modifications of public contracts to be initiated ex officio by public authorities, and (2) if so, whether such reviews can be initiated after the expiry of time limits in force at the time of the modifications. Advocate-General Bobek answers the 1st question : “ Yes “. EU law neither requires nor prevents ex officio reviews of (a) public contracts or (b) modifications of such contracts: paras 2, 68, 75 and 127. The Advocate-General answers the 2nd question : “ No “. The EU Principle of Legal Certainty bars national public authorities from initiating such reviews once the applicable time limit has already expired : paras 2, 77, 83-87, 94 and 127.
Modification of Public Contracts
March 30th, 2020 by James Goudie KC in Decision making and Contracts
Freedom of Speech
March 27th, 2020 by James Goudie KC in Human Rights and Public Sector Equality DutyOn ECHR Art 10, freedom of speech and expression, and the approach to limitations thereupon, see Divisional Court in R ( ANPO TVN ) v OFCOM (2020) EWHC 689 (Admin), at paras 41-63.
Balancing Rights
March 27th, 2020 by James Goudie KC in Human Rights and Public Sector Equality DutyIn Re Al M (Reporting Restrictions) (2020) EWHC 702 (Fam), concerned with an application for anonymity made by a witness who gave evidence during the fact finding stage of proceedings concerning the welfare of two children, the President declined to resolve what he described as an apparent conflict of first instance authorities on the question whether it is appropriate to strike any balance with ECHR Art 10 rights when absolute Art 2 or Art 3 rights are engaged.
COVID-19 – list of Govt publications by date order and useful websites
March 26th, 2020 by Peter Oldham QC in GeneralThe virus has led to the Government producing a great deal of information and guidance, of varying degrees of formality. It is not easy to keep track of it all.
The following is a list of some useful websites covering this (and related) material, and then a list of material by publication date, followed by a weblink. Please note that the list by date order will not be complete. I will try to update it regularly. Other documents of particular relevance may be included in the list (e.g. the European Commission’s Temporary State Aid Framework of 19th March). Proposals for inclusion are very welcome – please contact peter.oldham@11kbw.com. The earlier versions of documents amended after 25th March are not shown.
USEFUL WEBSITES
For guidance aimed at local government
https://www.gov.uk/guidance/coronavirus-covid-19-guidance-for-local-government
For guidance for schools and educational settings
For procurement
https://www.gov.uk/government/collections/procurement-policy-notes#2020
For Department of Health and Social Care
https://www.gov.uk/government/organisations/department-of-health-and-social-care
For Public Health England
https://www.gov.uk/government/publications/covid-19-stay-at-home-guidance and
https://www.gov.uk/government/organisations/public-health-england
For information about Universal Credit
https://www.understandinguniversalcredit.gov.uk/coronavirus/
For more general documentation from the Government about the crisis
For Parliamentary material on the Coronavirus Act 2020
https://services.parliament.uk/Bills/2019-21/coronavirus/documents.html
The Local Government Association has an extremely informative, broad and helpful collection of material at https://www.local.gov.uk/our-support/coronavirus-information-councils. This includes a section at https://www.local.gov.uk/our-support/coronavirus-information-councils/covid-19-statutory-council-duties dealing with particular functions by alphabetical order.
PUBLICATION OF MATERIAL BY DATE ORDER
9th March
News story – Taskforce to bolster local response to coronavirus
https://www.gov.uk/government/news/taskforce-to-bolster-local-response-to-coronavirus
16th March
Press release – Robert Jenrick reaffirms support for councils in their coronavirus response
17th March
Press release – £3.2 million emergency support for rough sleepers during coronavirus outbreak
Press release – Government to grant permission for pubs and restaurants to operate as takeaways as part of coronavirus response
18th March
Press release – Complete ban on evictions and additional protection for renters
https://www.gov.uk/government/news/complete-ban-on-evictions-and-additional-protection-for-renters
Procurement Policy Note 01/20: Responding to COVID-19
https://www.gov.uk/government/publications/procurement-policy-note-0120-responding-to-covid-19
19th March
EU Commission Temporary State Aid Framework
https://ec.europa.eu/commission/presscorner/detail/en/IP_20_496
Guidance – Responding to COVID-19: the ethical framework for adult social care
News story – £2.9 billion funding to strengthen care for the vulnerable
https://www.gov.uk/government/news/2-9-billion-funding-to-strengthen-care-for-the-vulnerable
Guidance – COVID-19: guidance on residential care provision
Guidance – COVID-19: guidance for supported living provision
Guidance – COVID-19: guidance on home care provision
Guidance – Coronavirus (COVID-19): maintaining educational provision
https://www.gov.uk/government/publications/coronavirus-covid-19-maintaining-educational-provision
Guidance – COVID-19: free school meals guidance
https://www.gov.uk/government/publications/covid-19-free-school-meals-guidance
20th March
Business Rates Nursery Discount 2020/21: Coronavirus Response – Local Authority Guidance
Guidance – Closure of educational settings: information for parents and carers
Guidance – Coronavirus (COVID-19): cancellation of GCSEs, AS and A levels in 2020
https://www.gov.uk/government/publications/coronavirus-covid-19-cancellation-of-gcses-as-and-a-levels-in-2020
Guidance – Procurement Policy Note 02/20: Supplier relief due to COVID-19
21st March
Press release – Major new measures to protect people at highest risk from coronavirus
Guidance – Coronavirus (COVID-19): guidance on isolation for residential educational settings
22nd March
Guidance – COVID-19: school closures
23rd March
COVID-19: guidance on isolation for domestic abuse safe-accommodation settings
Press release – Extra protection for businesses with ban on evictions for commercial tenants who miss rent payments
Guidance – Coronavirus (COVID-19): maintaining further education provision
Guidance – Coronavirus (COVID-19): apprenticeship programme response
https://www.gov.uk/government/publications/coronavirus-covid-19-apprenticeship-programme-response
Correspondence – Coronavirus (COVID-19): letter from the Minister of State for Care to recruitment agencies
https://www.gov.uk/government/publications/coronavirus-covid-19-letter-from-the-minister-of-state-for-care-to-recruitment-agencies
24th March
COVID-19 outbreak – councillor guidance
https://www.local.gov.uk/covid-19-outbreak-councillor-guidance
Council Tax COVID-19 hardship fund 2020-21 – Local Authority Guidance
COVID-19 advice for accommodation providers
https://www.gov.uk/guidance/covid-19-advice-for-accommodation-providers
Guidance – Coronavirus (COVID-19): implementing social distancing in education and childcare settings
Guidance
Guidance on shielding and protecting people defined on medical grounds as extremely vulnerable from COVID-19
Guidance – COVID-19: support for businesses
https://www.gov.uk/government/publications/guidance-to-employers-and-businesses-about-covid-19/covid-19-support-for-businesses
25th March
Grant Funding Schemes Small Business Grant Fund and Retail, Hospitality and Leisure Grant Fund Guidance Version 2 (new para 17)
Business Rates Expanded Retail Discount 2020/21: Coronavirus Response – Local Authority Guidance (updated to include formerly excluded, but forced to close)
COVID-19: guidance for hostel or day centre providers of services for people experiencing rough sleeping
Coronavirus (COVID-19) – Planning Inspectorate guidance – updated 25th March 2020 (cancellation of Planning Inspectorate’s site visits)
https://www.gov.uk/guidance/coronavirus-covid-19-planning-inspectorate-guidance
Note the helpful collection of planning material on the same page
Guidance – Further businesses and premises to close: guidance and designation letter under the Health Protection etc Regs 2020
Guidance – Coronavirus (COVID-19): early years and childcare closures
Guidance – COVID-19: guidance for educational settings
https://www.gov.uk/government/publications/guidance-to-educational-settings-about-covid-19
Guidance – Coronavirus (COVID-19): guidance on vulnerable children and young people
Guidance – Coronavirus (COVID-19): travel advice for educational settings
Peter Oldham QC
Council Tax Relief
March 26th, 2020 by James Goudie KC in Council Tax and RatesMHCLG has issued Guidance on relief to council tax payers in response to COVID-19 pursuant to Section 13A (1) (c) of LGFA 1992, funded by Government under Section 31 of LGA 2003.
Intentional Homelessness
March 26th, 2020 by James Goudie KC in HousingLB v TOWER HAMLETS LBC (2020) EWCA Civ 439 is concerned with the lawfulness of the local authority’s decision on a review under Section 202 of the Housing Act 1996. McCombe LJ, with whom Floyd and Coulson LJ agreed, said, at para 24, that Section 191 of the Act, on intentional homelessness, is directed to the time when the applicant did or failed to do something which resulted in them ceasing to occupy accommodation and then to whether it would have been reasonable to continue to occupy. He added, at para 27, that the reviewing officer should not limit the review by reference to circumstances acting at the date of the deliberate action or inaction alone. All the circumstances, both before that date, and matters thereafter, up to the date of the review, should be considered. He concluded, at para 31, that while the question of whether it is reasonable for a person to continue to occupy premises which they deliberately ceased to occupy is to be assessed at or about the time of the act in question, the assessment needs to be informed by all relevant matters, including events that may occur up to the date of the authority’s review decision. The Court also considered Section 177 of the 1996 Act, on domestic abuse.
LAs as liquidity source for private enterprise – thoughts on PPN2, New Burdens &c
March 25th, 2020 by Peter Oldham QC in GeneralThe Cabinet Office today published Procurement Policy Note 2, “Supplier relief due to COVID-19 Action Note”.
It says:-
All contracting authorities should: ● Urgently review their contract portfolio and inform suppliers who they believe are at risk that they will continue to be paid as normal (even if service delivery is disrupted or temporarily suspended) until at least the end of June. ● Put in place the most appropriate payment measures to support supplier cash flow; this might include a range of approaches such as forward ordering, payment in advance/prepayment, interim payments and payment on order (not receipt). ● If the contract involves payment by results then payment should be on the basis of previous invoices, for example the average monthly payment over the previous three months. ● To qualify, suppliers should agree to act on an open book basis and make cost data available to the contracting authority during this period. They should continue to pay employees and flow down funding to their subcontractors. ● Ensure invoices submitted by suppliers are paid immediately on receipt (reconciliation can take place in slower time) in order to maintain cash flow in the supply chain and protect jobs.
The policy is that LAs should provide liquidity to private enterprise, including payments in advance of contractual obligation. This is made clearer still as the Note continues:-
“6. The current outbreak of COVID-19 is unprecedented and will have a significant impact on businesses of all sizes. Many suppliers to public bodies will struggle to meet their contractual obligations and this will put their financial viability, ability to retain staff and their supply chains at risk. Contracting authorities should act now to support suppliers at risk so they are better able to cope with the current crises and to resume normal service delivery and fulfil their contractual obligations when the outbreak is over.
7. It is vital that contracting authorities pay all suppliers as quickly as possible to maintain cash flow and protect jobs. Contracting authorities should also take action to continue to pay suppliers at risk due to COVID-19 on a continuity and retention basis. Contracting authorities can consider making advance payments to suppliers if necessary.”
Would such payments, in ordinary circumstances, be compliant with the quasi fiduciary obligation in Roberts v Hopwood? The Government is saying this is not the time to be contractually squeamish: needs must.
A similar line of thinking about LAs as providers of liquidity to business is visible in two other initiatives of the Government, the Small Business Grant Fund and the Retail, Hospitality and Leisure Grant Fund, both to be channelled through LAs. The Government has said that it will reimburse LAs for these grants, and will also reimburse LAs’ grant administration costs pursuant to the New Burdens doctrine. Meanwhile LAs will be out of pocket, as I understand it.
It will be interesting to see if further Government policies in this crisis treat LAs as a means of effecting economic stabilisation – and longer term, whether this will kick-start LAs’ role as key players in the local economy.
Peter Oldham QC
Herding cats
March 25th, 2020 by Peter Oldham QC in GeneralOne of the difficulties faced by LAs in dealing with Government Covid guidance is keeping track of it as it continues (unsurprisingly) to pour forth. The following is a good starting point: https://www.gov.uk/guidance/coronavirus-covid-19-guidance-for-local-government.
However, it’s not intended to be a comprehensive set of guidance: for instance it does not deal with education. There is a collection of education guidance here:- https://www.gov.uk/government/collections/coronavirus-covid-19-guidance-for-schools-and-other-educational-settings.
A more general Covid collection of Government guidance is at https://www.gov.uk/government/latest?topical_events%5B%5D=coronavirus-covid-19-uk-government-response.
And of course sometimes Government guidance does not capture relevant material from other sources, for instance the European Commission’s Temporary Framework on State Aid, which you can find at https://eur-lex.europa.eu/legal-content/EN/TXT/uri=OJ%3AJOC_2020_091_I_0001.
The LGA has an extremely helpful collection of material at https://www.local.gov.uk/our-support/coronavirus-information-councils.
Parliamentary material on the Bill – and there is a great deal of it – is at https://services.parliament.uk/Bills/2019-21/coronavirus/documents.html.
While that includes some impact material, the Government’s overall Summary of Impacts document on the Bill is not on there, and that can be found at https://www.gov.uk/government/publications/coronavirus-bill-summary-of-impacts/coronavirus-bill-summary-of-impacts. It is on a page headed Department of Health and Social Care, though it deals with provisions of the Bill generally and not just in relation to health and social care. It includes some important material.
Peter Oldham QC