PLC Public Sector reports:
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Decision-making: local authority decision-makers should ensure that they are not disqualified from making a decision because they have a close connection with the issue being decided. The High Court’s decision in National Association of Memorial Masons v Cardiff City Council is a reminder that the test in these circumstances is whether a fair minded and informed observer, with knowledge of the facts, would conclude that there was a real possibility the decision-maker would be biased if they took part.
Local authorities having to make tough funding decisions should note the decision in R (Rahman) v Birmingham City Council. Although the decision related to the council’s failure to have regard to the race and disability public sector equality duties under section 71 of the Race Relations Act 1976 and section 49A of the Disability Discrimination Act 1998, local authorities taking future decisions on cutting funding should ensure they have regard to the new single public sector equality duty under the Equality Act 2010. Although the council had prepared an equality impact needs assessment of the impact the proposed funding cuts would have, the assessment was not attached in the report to members taking the decision to cut funding. It is essential therefore that any report relating to cutting funding not only makes decision-makers aware of their public sector equality duty but also how this duty is engaged in the decision that they are being asked to make.
Disclosure: the High Court decision in H and L v A City Council is a reminder to local authorities that they should carefully weigh up the risks associated with disclosure of information that may be damaging to an individual, in this case it was an individual’s conviction for a sex offence. However, if children are in contact with an offender, the potential risks to the children’s safety outweigh an individual’s right to privacy.
Pensions: local government pension scheme administrators should note that where written policies are in place that underpin decisions about members’ eligibility for specific benefits, decisions should not be reached which take into account additional factors not in the policy, see the Ombudsman’s decision Determination in complaint by Mr S Jaszczyk, (80285/2). If they do so, they run the risk of a successful challenge to the decision.
Procurement: the following principles from three recent cases may be of interest to local authority procurement officers:
- In both R (All About Rights Law Practice) v Legal Services Commission and R (Hoole & Co) v Legal Services Commission, the High Court made it clear that tenderers do not have the right to correct errors in bids after the submission deadline.
- The decision of the High Court in Mears Limited v Leeds City Council highlights the importance of disclosing the weightings that apply to all award criteria or sub-criteria. Contracting authorities also need to ensure that any guidance given to evaluators does not introduce any new, undisclosed criteria or weightings. The case also provides guidance on the approach the courts will take to deciding what the appropriate remedy is for any breach of the public procurement regime. In this instance the Council’s award decision was not set aside, but the claimant was awarded damages.
Looked after children: children’s services departments in local authorities in Wales should note that a commencement order has been made bringing various sections of the Children and Young Persons Act 2008 into force, which deal with looked after children and the duties that local authorities have in relation to them.
Social care services: local authorities providing social care services should be aware that an updated version of the Department of Health guidance on the identification of ordinary residence of people in need of community care services has been published.
Planning: local planning authorities dealing with suspected dishonesty in applications for certificates of lawfulness of existing use or development will welcome the Supreme Court’s decision in Secretary of State for Communities and Local Government and another v Welwyn Hatfield Borough Council. In this case, the Supreme Court held that a landowner, who had intentionally deceived the council when obtaining planning permission for a hay barn which had internally been fitted out as a house, was not entitled to such a certificate.
Local authorities in England who operate traveller sites should familiarise themselves with the guidance published by the Department for Communities and Local Government as, from 30 April 2011, the provisions of the Mobiles Homes Act 1982 will apply to such sites.
Homelessness: local authorities which subcontract with private housing providers in order to fulfil their statutory duties under Part VII of the Housing Act 1996 should note a recent High Court decision holding that the London Borough of Newham was not liable for the costs of accommodating those who had “overstayed” despite Newham cancelling their accommodation booking.
Bellwin scheme: the guidance note for claims made in 2011-12 under the Bellwin scheme has been published, this will be of general interest to local authorities who may need emergency financial assistance following an emergency or disaster in this period.
Premises licence variation: the Court of Appeal has set aside a previous High Court decision quashing a variation of a premises licence at the Royal Albert Hall. The Court of Appeal held that the variation had been correctly applied for and this meant that Westminster City Council was under a statutory duty to grant the variation. It was not for the Court of Appeal to subvert the statutory scheme set out in the Licensing Act 2003.
Consultations: this week consultations have been launched on: