In R ( KE ) v Bristol City Council ( 2018 ) EWHC 2103 ( Admin ) the Court quashed the Council’s High Needs Block budget allocation, which reduced expenditure on Special Educational Needs. The Judge found that there had been a duty to consult by reason of the duty of inquiry under the PSED, Section 27 of the Children and Families Act 2014, and common law. He also found that there was a breach of Section 11 of the Children Act 2004.
House In Multiple Occupation (“HMO”)
August 13th, 2018 by James Goudie KC in HousingR ( Gaskin ) v Richmond upon Thames LBC ( 2018 ) EWHC 1996 ( Admin ) concerned a narrow, but important, issue, namely whether the owner of a HMO provides a “ service “ for the purposes of the EU Services Directive and the lawfulness under EU law of the fee demanded by the Council for a renewed licence. The Divisional Court held that in letting and managing private residential accommodation for profit Mr Gaskin did provide a “service” within the scope of the Directive, where the term is used in a very broad sense; and that the licensing provisions of Part 2 of the Housing Act 2004 are an authorisation scheme for the purposes of the Directive and Regulations. Therefore the Council was not entitled to demand payment of a licence renewal fee which infringed the Directive because it was not limited to the costs of the procedures and formalities of the authorisation scheme.
Homelessness
August 8th, 2018 by James Goudie KC in HousingThe issue on the appeal in Lomax v Gosport Borough Council (2018) EWCA Civ 1846 was whether the Council correctly applied Sections 175 and 177 of the Housing Act 1996 in concluding that it was reasonable for a severely disabled applicant for housing to continue to occupy her accommodation. In concluding that the Council’s conclusion was erroneous, the Court of Appeal said that in determining whether it is reasonable for a particular applicant to continue to occupy her current accommodation the same approach should be adopted as to reasonableness as in the case of the question whether an applicant has unreasonably refused an offer of suitable accommodation. The decision maker must have regard to all the personal characteristics of the applicant, and then take into account of those individual aspects. This includes subjective factors and an objective test. The test is with respect to the particular applicant and the particular accommodation, including its location.
Consultation
August 1st, 2018 by James Goudie KC in Decision making and ContractsIn R ( Brooke Energy Ltd ) v SOS for BEIS (2018) EWHC 2012 ( Admin ) a Divisional Court has restated the principles as to when there is a non-statutory duty to consult. The circumstances in which the common law will impose a duty on a public authority to consult by virtue of the doctrine of legitimate expectation are threefold. First, where there has been a promise to consult. Second, where there is an established practice of consultation. The alleged practice or promise must be clear, unequivocal and unconditional. A practice must be sufficiently settled and uniform to give rise to an expectation that the claimant would be consulted. Moreover, there must be unfairness amounting to an abuse of power for the public authority not to be held to the practice.
Third, a duty to consult will be imposed where a failure to consult would lead to conspicuous unfairness. However, the duty will arise on this basis only in exceptional situations.
Qualifying Persons For Provision Of Social Housing: Local Connection/Long-Term Residents Priority
July 26th, 2018 by James Goudie KC in HousingIn R (Gullu) v Hillingdon LBC [2018] EWHC 1937 (Admin) Mostyn J said, at paragraph 22:-
“… this case concerns the provision of social housing by a local housing authority. In my opinion there is … in this field a generous margin of appreciation. The court should be very cautious indeed when faced with a claim to strike down a measure which seeks to parcel out fairly a local authority’s housing stock at a time where there is a national housing crisis and where the demand for public housing vastly exceeds the supply. Were the court to afford an advantage to a class of claimants … then it will be at the expense of another group who will find themselves jumped in the queue. When it comes to housing local authorities have to make hard political judgments of a macro-economic nature which the courts are ill-equipped to second-guess. These judgments are the expression of the local democratic process. Hence the need for there to be a strong and obvious case before the court will interfere.”
The Judge found that, if there were any discrimination in the Council’s allocation scheme, it was justified, and there was no failure to comply with the PSED.
Authorisation and declaration of election expenses
July 25th, 2018 by James Goudie KC in Elections and BylawsR v Mackinlay (2018) UKSC 42 is a pre-trial appeal concerning a point of pure statutory construction. The Respondents face charges of knowingly making false declarations in relation to election expenses, or aiding and abetting or encouraging or assisting such offences. The parties asked the judge to determine the point on a preparatory hearing.
The question of law certified by the Court of Appeal (Criminal Division) as a point of law of general public importance is as follows:
“Do property, goods, services or facilities transferred to or provided for the use or benefit of a candidate free of charge or at a discount (as identified in section 90C(1)(a) of the Representation of the People Act 1983 (as amended)) only fall to be declared as election expenses if they have been authorised by the candidate, his election agent or someone authorised by either or both of them?” Read more »
Employment Contracts
July 25th, 2018 by James Goudie KC in Decision making and ContractsIn James-Bowen v Commissioner of Police of the Metropolis (2018) UKSC 40 the Supreme Court addressed the implied duty of trust and confidence in employment contracts. They said:-
“16. The mutual obligation of employer and employee not, without reasonable and proper cause, to engage in conduct likely to destroy or seriously damage the relationship of trust and confidence required between employer and employee is a standardised term implied by law into all contracts of employment rather than a term implied from the particular provisions of a particular employment contract (Malik v Bank of Credit and Commerce International SA [1998] AC 20, per Lord Steyn at p 45D). It was described by Lord Nicholls in Malik at p 35A, as a portmanteau concept. In that case the House of Lords considered it the source of a more specific implied obligation on the part of the employer bank not to conduct its business in a dishonest and corrupt manner, the breach of which gave rise to a cause of action for damage to the economic and reputational interests of its employees. Similarly, in Eastwood v Magnox Electric plc [2004] UKHL 35; [2005] 1 AC 503 the House of Lords recognised an obligation on an employer, in the conduct of his business and in the treatment of his employees, to act responsibly and in good faith (per Lord Nicholls at para 11). The implied term has been held to give rise to an obligation on the part of an employer to act fairly when taking positive action directed at the very continuance of the employment relationship (Gogay v Hertfordshire County Council [2000] IRLR 703; McCabe v Cornwall County Council [2004] UKHL 35; [2005] 1 AC 503; Bristol City Council v Deadman [2007] EWCA Civ 822; [2007] IRLR 888; Yapp v Foreign and Commonwealth Office [2014] EWCA Civ 1512; [2015] IRLR 112; Stevens v University of Birmingham [2015] EWHC 2300 (QB); [2016] 4 All ER 258). Furthermore, any decision-making function entrusted to an employer must be exercised in accordance with the implied obligation of trust and confidence (Braganza v BP Shipping Ltd [2015] UKSC 17; [2015] 1 WLR 1661).” Read more »
Human Rights
July 25th, 2018 by James Goudie KC in Human Rights and Public Sector Equality DutyA number of propositions are confirmed by the Court of Appeal in JT v First-Tier Tribunal (2018) EWCA Civ 1735:-
Proprietary Interest
1. Article 1/1 of the ECHR protects an individual’s right to peaceful enjoyment of possessions;
2. These include –
i) Various intangible rights, and
ii) Legitimate expectations to payments or assets of various kinds;
3.Welfare benefits are within its ambit; Read more »
NPPF
July 25th, 2018 by James Goudie KC in Planning and EnvironmentalMHCLG has published the first revision of the NPPF since 2012. Alongside the revised NPPF itself, MHCLG has published its response to the consultation on the draft revised NPPF, an equality impact assessment, updated planning practice guidance, guidance on housing and economic development needs assessments, and a policy paper on measurement of housing delivery.