This is the fifth in our series of quarterly local government update blogs which will enable readers to catch up on the most important cases, issues or developments in local government since November 2013.
Please feel free to submit a comment below or contact us at feedback@practicallaw.com if you have any views on the cases, issues, or legal development that is covered or if you think we have missed something that should be brought to the attention of local government practitioners.
In this post we look at:
- Cases on standards, powers and closure of services.
- The designation of assets of community value.
- New legislation on audit and making decisions about council tax.
CHALLENGES TO LOCAL AUTHORITY DECISION-MAKING
No remedy where council breached PSED in closure of youth services (R (Aaron Hunt) v North Somerset Council [2013] EWCA Civ 1320).
In an interesting addition to the case law on the need for public bodies to have regard to their equality duties when taking decisions about services, the Court of Appeal declined to quash a council’s decision to close youth services, even though the council had failed to carry out a proper consultation or have due regard to its equality duties.
As the services had already closed and consequential budgetary measures taken, the court held that it would not be practical to make a quashing order.
Council has power to provide services to child outside its area (R(J(W)) v Worcestershire County Council and The Equality and Human Rights Commission [2013] EWHC 3845 (Admin)).
In an interesting case with potentially significant consequences for local authority social services budgets, the High Court held that a council had the power to provide services to a traveller child who spent most of his time outside the council’s area. While the court distinguished between a duty to assess a child arose when the child was in the authority’s area, the duty to provide services under section 17 of the Children Act 1989 is not limited to providing services within the authority’s area.
Councillor refused permission to judicially review decision of standards committee (R (Dennehy) v London Borough of Ealing [2013] EWHC4102 (Admin)).
This case concerned a councillor’s judicial review challenge to a decision of his authority’s standards committee that comments he had made on his website in respect of immigration and criminality were inappropriate and unnecessarily provocative, and that the councillor had brought the office of councillor into disrepute. The standards committee published this finding on its website and determined that the councillor should apologise.
The court held that though his Article 10 rights to freedom of expression had been infringed, the infringement was justified. The case illustrates:
- The fine line between the right of an elected member to express views on issues of local importance and the risk of being seen to attack a section of the public.
- The weakness of the standards regime in that the councillor did not, and could not be compelled to, apologise, as required by the standards committee.
Estate not liable for care home fees (Aster Healthcare Limited v The Estate of Mr Mohammed Shafi [2014] EWHC 77 (QB)).
This case is a salutary reminder to local authorities of the need to ensure they make proper arrangements for the payment of care home fees for service users who can self-fund but who lack capacity.
In this case, the authority had not entered into an arrangement with the service user or provider, nor identified an appropriate person to make those arrangements on the service user’s behalf. Neither could a claim against the service user’s estate under section 7 of the Mental Capacity Act 2005 succeed as there was no suggestion as the time the contract with the care home was entered into that it was intended that the estate would bear those fees.
Local authority entitled to require governing body to engage with it on employment matters under section 60 of the Education and Inspections Act 2006 (R (Governing Body of Uplands Junior School) v Leicester City Council and another [2013] EWHC 4128).
In this case the court dismissed a governing body’s application for judicial review of a local authority’s intervention in the running of their school under section 60 of the Education and Inspections Act 2006.
The authority had lawfully required the governing body to engage and communicate with it on employment matters. The authority’s dismissal of the head teacher was unlawful as it had failed to engage with the governing body before doing so, but as the court found that engagement would have made no difference, it declined to make an order.
DESIGNATION OF ASSETS OF COMMUNITY VALUE
Two cases are of note in relation to the designation of assets of community value (ACV) under provisions in the Localism Act 2011 designed to give communities the right to bid to buy local assets.
- In R (Edgar) v Bournemouth Borough Council (unreported, October 2013) a local authority’s decision to refuse to designate a community and arts centre as an ACV because the site had not been used for community purposes in the recent past was upheld. The centre in question had not been used for community purposes for five years before the nomination was made.
- In Patel v London Borough of Hackney and another (Community Right: Localism Act 2011 [2013] UKFFT CR_2013_0005 (GRC) the Tribunal held that a local authority was correct to list a pub as an ACV even though the owner had bought it intending to turn it into flats. The correct test to use to determine whether it was realistic to think that in the next five years there could be a non-ancillary use of the building which further the social wellbeing or social interests of the local community was not the balance of probabilities. The owner’s plans for the building were one of a number of realistic options about the pub’s future.
LEGISLATIVE DEVELOPMENTS OF INTEREST TO LOCAL GOVERNMENT LAWYERS
Deregulation Bill 2013-14
The government introduced the Deregulation Bill 2013-14 into the House of Commons on 23 January 2014. The Bill contains a number of provisions affecting local government, in relation to housing, licensing, education and rights of way. It also removes section 3A of the Local Government Act 1999 which requires best value authorities to involve local representatives in the exercise of their functions. The government considers that local authorities should be trusted to engage with people without a duty being imposed on them.
General power of competence
In the first consultation of its kind, the Secretary of State asked for views on the temporary disapplication of the Harrogate Stray Act 1985 to enable a local authority to exercise the general power of competence as part of its plans to host the early stages of the Tour de France.
Legislation on audit and council tax
On 30 January 2014, the Local Audit and Accountability Bill 2013-14 was granted Royal Assent. The Bill abolishes the Audit Commission and requires local authority accounts to be audited by local auditors, in a similar way to company accounts.
The last quarter has seen significant activity in legislation governing council tax. Building on existing regulations requiring councils to hold a referendum on a decision to increase council tax beyond 2%, the government has:
- Introduced the Local Authorities (Standing Orders) (England) (Amendment) Regulations 2014 (SI 2014/165) which require local authorities’ standing orders to require a record to be taken of those who voted for and against any decisions on the council’s budget from 25 February 2014.
- Amended the Council Tax Reduction Schemes (Prescribed Requirements) (England) Regulations 2012 (SI 2012/2885) by clarifying which persons of classes of persons may be eligible for a reduction. The revised regulations came into force on 13 January 2014.
- Updated the Local Authorities (Conduct of Referendums) (Council Tax Increases) (England) Regulations 2012 (SI 2012/444), so that local authorities cannot exclude levies from their published council tax calculation.