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 Department of Health has responded to the Law Commission consultation on mental capacity and deprivation of liberty safeguards (DoLS).
• The Welsh Government, police, NHS, councils and other agencies have signed an agreement to improve the system of care and support for people in a mental health crisis.
• The Care Quality Commission has published its:
  • Annual report monitoring how providers are applying the safeguards in the Mental Health Act 1983 and the standards and guiding principles in the MHA 1983 Code of Practice; and
  • sixth annual report monitoring implementation of DoLS, outlining concerns over the number of unauthorised deprivations of liberty in care homes and hospitals.
• The House of Lords has published a library note on the quality and viability of the residential care sector in light of the government’s decision to delay implementation of the cap on care costs to April 2020.

Children’s services:

• The Court of Appeal has:
  • clarified that in care proceedings and adoption proceedings, there is no presumption in favour of parents at the welfare stage (Re H (a child)); and
  • dismissed an appeal against an order regulating contact (In the matter of W-M (Children)).
• The High Court has quashed the Home Office’s refusal to consider an application for additional travel expenses to facilitate contact between a father (a failed asylum seeker) and his child (R (MG) v Secretary of State for the Home Office).

Civil litigation:

• The Court of Appeal has:
  • dismissed an appeal against a first instance judge’s refusal to strike out a claim for procedural non-compliance, despite the fact that it noted it would have exercised its discretion the other way (Commissioner of Police of the Metropolis v Abdulle and others);
  • considered what status should be accorded to Upper Tribunal decisions that are not formally designated as “guidance cases” (Sinclair Gardens Investments (Kensington) Ltd v Ray); and
  • confirmed that judicial review forms should be lodged promptly despite granting appellants an extension of time application (R (Kigen and another) v Secretary of State for the Home Department).
• The High Court has considered the appropriate sanction where a losing party unreasonably refused to engage in mediation (Reid v Buckinghamshire Healthcare NHS Trust).
• The President of the Supreme Court has delivered a speech reflecting on the role and decisions of the Supreme Court.

Education:

• The Department for Education has published updated statutory guidance on supporting pupils at school with medical conditions.

Employment and pensions:

• The draft National Minimum Wage (Amendment) Regulations 2016 have been laid before Parliament and will come into force on 1 April 2016.
• The Court of Appeal has:
  • held that a length-of-service criterion in the Prison Service’s pay system did not indirectly discriminate against a Muslim prison chaplain on grounds of religion or race (Naeem v The Secretary of State for Justice); and
  • dismissed a claim that an employer failed to make reasonable adjustments by not extending the point at which disciplinary action could be taken under its attendance management policy and by failing to disregard periods of sickness absence (Griffiths v The Secretary of State for Work and Pensions).
• The EAT has:
  • held that an employment tribunal erred in its approach to burden of proof when it found that a claimant had failed to establish a prima facie case of discrimination arising from disability (Pnaiser v NHS England and Coventry City Council); and
  • considered the application of the 10% uplift on general damages established by the Court of Appeal in Simmons v Castle and has held that it does apply to injury to feelings awards made in the employment tribunal (Beckford v London Borough of Southwark).
• HM Courts and Tribunals Service has published the minutes of the October and November 2015 meetings of the Bristol, Exeter and Southampton employment tribunal user groups on its website.
• The Ministry of Justice has published the statistics for tribunals for the period July to September 2015.
• The Pensions Ombudsman has determined that a complaint that an employer failed to inform a member about valuable pension transfer options was outside the three-year time limit applying to complaints (Determination in a complaint by Mrs Alice Lennon).

 Environment:

• HMRC has published the draft Landfill Tax (Amendment) Regulations 2016 and a tax information and impact note on the reform and value of the Landfill Communities Fund.
• The 21st session of the Conference of the Parties to the UNFCCC and the 11th session of the Conference of the Parties serving as the Meeting of the Parties to the Kyoto Protocol have been held in Paris.
• The Department for Business, Innovation and Skills has published a tender for research on the burden of businesses from energy and climate change reporting obligations.
• Defra has announced that it is preparing England’s first national litter strategy.

 FOI and data protection:

• The Justice and Home Affairs Council has held a general discussion on the consequences for member states of the ECJ’s invalidation of the Data Retention Directive.

Health:

• The Department of Health and HM Treasury have announced that a health devolution agreement has been signed which will result in five devolution pilots across London.

Housing:

• The DCLG has published consultations on:
  • the draft Housing Revenue Account (Accounting Practices) Directions 2015; and
  • various changes to the National Planning Policy Framework.

Property and planning:

• The Court of Appeal has decided whether planning enforcement orders have removed the effect of the Welwyn decision in relation to deliberate concealment (Bonsall v Secretary of State for Communities and Local Government and another).
• The High Court has considered:
  • whether local councils are under a duty to keep all roads, pavements and footpaths free from moss and algae (Rollinson v Dudley MBC); and
  • whether an easement can exist to use a golf course, swimming pool or tennis court (Regency Villas Title Ltd and others v Diamond Resorts (Europe) Ltd and another).

Public procurement:

• The Court of Appeal has handed down its judgment on preliminary issues raised in an action for damages for breach of the public procurement rules (Energysolutions EU Ltd v Nuclear Decommissioning Authority).
• Commission Regulations amending the thresholds for the application of Directive 2009/81 (Defence Procurement Directive), Directive 2004/18 (old Public Sector Directive) and Directive 2014/17 (old Utilities Directive) have been published in the Official Journal.
• The Crown Commercial Service has published:
  • a Procurement Policy Note on the new threshold levels to apply from 1 January 2016; and
  • guidance on the new subcontracting provisions in the Public Contracts Regulations 2015.

Regulation and enforcement:

• The Health and Safety Executive has prosecuted a care provider under the Health and Safety at Work etc. Act 1974 after the death of a patient.