Practical Law

Make sure that you have not missed a key development in your area of the law by reading our In brief review of the latest Practical Law Local Government email.

Adult social services:

• The Care and Support (Partnership Arrangements for Population Assessments) (Wales) Regulations 2015 and the Care and Support (Disputes about Ordinary Residence, etc) (Wales) Regulations 2015 have been made and will come into force on 6 April 2016.
• The High Court has refused to grant an application for summary judgment in a claim against Herefordshire Council for misfeasance in public office (Menon and Others v Herefordshire Council).
• The Upper Tribunal has considered the interaction between guardianship under the Mental Health Act 1983 and deprivation of liberty safeguards under the Mental Capacity Act 2005 (KD v a Borough Council and others).

Children’s services:

• The High Court has:
  • considered whether a local authority’s policy to retain child protection records for 35 years after the case is closed was lawful (R (C) v Northumberland County Council and another);
  • considered whether the ambit of the inherent jurisdiction of the High Court includes the protection of the wider public (London Borough of Redbridge v SNA); and
  • ordered a local authority to pay half the claimant’s costs incurred in a judicial review claim. The judgment considers the costs position when a claim is legally weak and discontinued following negotiations at court (R (E) v London Borough of Croydon).
• The European Court of Human Rights has ruled that Russian courts breached an applicant father’s Article 8 rights under the European Convention on Human Rights (ECHR), by terminating his paternity upon a DNA test revealing that he was not the child’s biological father (Nazarenko v Russia).

Civil litigation:

• The Civil Procedure (Amendment No 4) Rules 2015 have been made and will come into force on 1 October 2015. They include, among other changes, the introduction of a new specialist Financial List in the Rolls Building and a provision for how the court is to approach case management where proceedings involve unrepresented parties.
• The Supreme Court has:
  • held that parts of the costs regime introduced by the Access to Justice Act 1999 (now repealed and replaced by Legal Aid, Sentencing and Punishment of Offenders Act 2012) and, in particular, a claimant’s right to recover any success fee and After the Event insurance premium from an unsuccessful defendant, did not infringe either Article 6 or Article 1 of the First Protocol to the ECHR (Coventry and others v Lawrence and another); and
  • overturned an order made by the Court of Appeal that the appellant, a disabled man, should pay half the respondent’s costs of the appeal, instead substituting an order that the appellant should recover two thirds of his costs at first instance (Hunt v North Somerset Council).
• The High Court has:
  • found that a scheme in operation by the Legal Aid Agency in respect of applications for exceptional case funding is unlawful because it fails to ensure that an applicant’s human rights are not breached, or are not likely to be breached (IS v The Director of Legal Aid Casework and another); and
  • granted an interim injunction under section 3(3)(a) of the Protection from Harassment Act 1997 to restrain the defendant from continuing harassment (Cheshire West and Chester Council and others v Pickthall).
• The Justice Committee is conducting an inquiry into the effects of changes to court and tribunal fees and charges that were made over the course of the last Parliament, including the March 2015 increase in court fees and the introduction of employment tribunal fees.
• The Ministry of Justice has published its response to its consultation on enhanced fees for possession claims and general applications in civil proceedings, alongside a further consultation on proposals for new or increased fees in a range of court and tribunal proceedings.

Education:

• Three sets of regulations governing the provision of student information have been laid before Parliament and will come into force on 1 September 2015.
• Two sets of regulations have been published dealing with the governance of schools in England and Wales. Both sets of regulations come into force on 1 September 2015.

Employment and pensions:

• HMRC has:
  • published draft regulations defining “apprentice” for the purposes of the employers NICs exemption, for consultation.
  • launched a consultation on simplifying the tax and NICs treatment of termination payments.
• The EAT has held that a tribunal’s decision that a disabled employee was treated unfavourably for the purposes of a claim for discrimination arising from disability was manifestly perverse (The Trustees of Swansea University Pension & Assurance Scheme and another v Williams).
• The DWP has published a response to its May 2014 consultation on the rules that formerly contracted-out schemes will need to comply with following the abolition of defined benefit contracting-out in April 2016.

Environment:

• The Hazardous Waste (Miscellaneous Amendments) (Wales) Regulations 2015 were made on 24 June 2015 and came into force on 20 July 2015.
• The Court of Appeal has clarified the approach that a local planning authority should take when it is considering whether an appropriate assessment is needed under Article 6 of the Habitats Directive 1992 in relation to the planning application for the first development in a series of developments (R (Forest of Dean (Friends of the Earth)) v Forest of Dean District Council).
• Defra has:
  • published guidance to public bodies (including statutory undertakers) on how to comply with their obligations in relation to Sites of Special Scientific Interest; and
  • launched a consultation on a new revised statutory code of practice on the waste duty of care under section 34 of the Environmental Protection Act 1990.
• The DECC has announced that it would no longer fund the Green Deal Finance Company. This does not affect existing Green Deal Plans but will lead to a significant slowdown in installation of energy efficiency measures.

FOI and data protection:

• The European Court of Human Rights has upheld a decision of the Finnish data protection authority prohibiting two companies from collecting, saving and processing the publicly available taxation details of over a million Finnish people with a view to publication, including providing details on request via a SMS service (Satakunnan Markkinapörssi Oy and Satamedia Oy v Finland).
• The High Court has found that section 1 of the Data Retention and Investigatory Powers Act 2014 is inconsistent with EU law (R (Davis and others) v Secretary of State for the Home Department and others).
• The ICO has clarified its position on enforcing the ECJ’s Google Spain decision on search result delisting against search engine providers, including in non-EU domains.

Health:

• Monitor and NHS England have published a document on outcomes-based payment models for mental healthcare contracts.

Housing:

• The Court of Appeal has held that there is no requirement for a local housing authority to carry out a best interests assessment under the Children Act 2004 before seeking possession of a house where dependent children are residing under Part VII of the HA 1996 where its duty to the tenant has come to an end (Mohamoud v Royal Borough of Kensington and Chelsea).

Local government law:

• The Communities and Local Government Committee has announced that an inquiry into the Cities and Local Government Devolution Bill is being launched. The inquiry will examine a variety of issues relating to the Bill, including where devolution plans for London lie in relation to the Bill and the effects of devolving health care in Greater Manchester.

Property and planning:

• The Supreme Court has refused to quash a planning permission, despite agreeing that there had been a procedural irregularity, because the local planning authority should have required the developer to carry out an environmental impact assessment (R (Champion) v North Norfolk District Council and another).
• The High Court has dismissed a claim for damages for misrepresentation where it was alleged that property sellers had given fraudulent replies in the Seller’s Property Information Form (Thorp and another v Abbotts and another).
• The Planning Inspectorate has published Advice note sixteen: Requesting changes. The advice note provides information to applicants about how to request a material change to an application for development consent once it has been accepted for examination and the implications of doing so.
• The DCLG has launched a consultation on the proposal to amend the Housing Act 1988  to bring Crown tenants within the assured tenancy regime.
• Cuadrilla has announced that it will appeal against the refusals by Lancashire County Council of its applications for planning permission for shale gas fracking.

Public procurement:

• The High Court has refused to order a council to award a contract to a company that successfully challenged a procurement procedure (Woods Building Services v Milton Keynes Council).
• The Crown Commercial Service has published an updated version of its contract management standards. The standards, first published in June 2015, form part of a suite of documents aimed at addressing poor contract management in government.

Regulation and enforcement:

• The High Court has allowed an appeal against a decision by a council terminating the trading licences of two stallholders on the grounds that they were potentially employing illegal workers (R (Aryubi) v Birmingham City Council).