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 House of Commons Library has published a briefing paper discussing the integration of health and social care in the United Kingdom.

Children’s services:

• The Family Court has ordered a local authority to pay a child’s costs for both care proceedings and a human rights claim to avoid the effect of the statutory charge and allow the child to benefit from the damages awarded (Re BB (A Child)).

Civil Litigation:

• The High Court has:
  • allowed an application for an unless order after defendants failed to pay a costs order following the dismissal of their strike out application (Gamatronic (UK) Ltd and another v Hamilton and another);
  • held that the court has no discretion under CPR Part 3 to extend the 14-day time limit for payment of a Part 36 sum under CPR 36.14(6) (Titmus v General Motors UK Ltd); and
  • rejected the suggestion that a confidentiality clause in a settlement agreement ought to be subject to an implied term requiring claimants to ensure that the terms of those agreements were not disclosed during the course of separate winding up proceedings (Hartland and others v Buccament Bay Resort Ltd).

Commercial:

• The Court of Appeal has held that an innocent party faced with a repudiatory breach did not have an option to affirm the contract because the defaulting party could not perform its contractual obligations (MSC Mediterranean Shipping Company S.A. v Cottonex Anstalt).
• The Modern Slavery Act 2015 (Code of Practice) Regulations 2016 came into force on 8 August 2016. The regulations bring into force a Code of Practice to be followed by police officers and enforcement officers when arresting a person under the maritime enforcement powers set out in the Modern Slavery Act 2015 in relation to slavery and human trafficking offences.

Education:

• The School Teachers’ Pay and Conditions Order 2016 has been made and will come into force on 1 September 2016.

Employment and pensions:

• The draft Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975 (Amendment) Order 2016 has been made and amends the Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975.
• The EAT has:
  • held that rule 12(1)(b) of the Employment Tribunal Rules, which requires tribunals to reject a claim without a hearing, where it is in a form which “cannot sensibly be responded to”, is outside the scope of the Employment Tribunals Act 1996 and therefore ultra vires (Trustees of the William Jones’s Schools Foundation v Parry); and
  • upheld an employment tribunal’s decision to award £14,000 in injury to feelings damages to a young woman who was forced out of her job because of sexual harassment from her employer (AA Solicitors Ltd v Majid).
• The First-tier Tribunal has dismissed an employee’s claim for exemption from tax under section 243 of ITEPA 2003 and his employer’s claim for exemption from Class 1A NIC on a local bus pass provided by the employer (Nottingham Town Council & another v HMRC).
• The Government Equalities Office has indicated that the timescale for publication of the Equality Act 2010 (Gender Pay Information) Regulations 2016 has been delayed.
• Public Concern at Work has published a review of its activities over the last five years.
• Labour leadership candidates Jeremy Corbyn and Owen Smith have presented a number of proposals for reform to employment law.

Environment:

• The ECJ has decided that Article 10(2) of the Mining Waste Directive 2006 does not require backfilling of a quarry using waste that is not extractive waste to be subject to the Landfill Directive 1999, if the backfilling is recovery of waste rather than disposal of waste (Città Metropolitana di Bari v Edilizia Mastrodonato srl).
• The High Court has decided that two landfill site operators did not have a legitimate expectation for repayment of landfill tax they had paid in relation to “fluff” (soft waste material used for capping and lining landfills) (Veolia ES Landfill Ltd v Revenue and Customs Commissioners).
• The European Commission has published Recommendation (EU) 2016/1318 of 29 July 2016 on guidelines for the promotion of nearly zero-energy buildings and best practices to ensure that, by 2020, all new buildings are nearly zero-energy buildings.
• Natural England and Defra have published guidance for local planning authorities on how to review applications that might affect protected sites and areas.
• HM Treasury has published a consultation on the delivery method and priorities of the shale wealth fund.
• Natural Resources Wales has published a consultation on amendments to existing standard rules for some waste activities under the Environmental Permitting regime.

FOI and data protection:

• The Supreme Court has concluded that the information-sharing provisions in Part 4 of the Children and Young People (Scotland) Act 2014 were incompatible with Article 8 of the European Convention on Human Rights (The Christian Institute and others v The Lord Advocate (Scotland)).
• The Advocate General has opined that Article 15(1) of the E-Privacy Directive and Articles 7, 8 and 52(1) of the Charter allow member states to impose general data retention obligations on providers of electronic communications services for the purpose of fighting serious crime, provided that a number of conditions are satisfied (Tele2 Sverige AB v Post- och telestyrelsen and Secretary of State for the Home Department v Tom Watson and Others (AG’s Opinion)).
• The ICO has published a decision notice finding that information relating to the performance of domiciliary care services outsourced by a council did not engage sections 43(2) or 44 of the Freedom of Information Act 2000.

Health:

• The Supreme Court has held that a restricted patient’s recall to hospital under the Mental Health Act 1983 was not unlawful even though the Secretary of State had breached Department of Health guidelines by failing to provide a written explanation for it within 72 hours of the recall (R (Lee-Hirons) v Secretary of State for Justice).
• The Court of Appeal has decided to take into account post-conviction material submitted in respect of a recognised mental health condition in reducing a sentence even when that sentence was not manifestly excessive and the judge had not been at fault in imposing it (R v Smith).
• The High Court has held that NHS England had erred in law when it decided that it did not have the legal power to consider an anti-retroviral drug for the preventative treatment of HIV in its treatment commissioning process (National Aids Trust v National Health Service Commissioning Board (NHS England)).

Housing:

• The High Court has considered a judicial review application by a care leaver, challenging the council’s decision to refuse to enter him on its housing register (YA v London Borough of Hammersmith and Fulham).
• The DCLG has confirmed that it proposes to introduce the power for local authorities to apply for a banning order under the Housing and Planning Act 2016 on 1 October 2017.

Property and planning:

• The Court of Appeal has dismissed an application for judicial review of a local planning authority’s decision to approve a drainage scheme (R (Menston Action Group) v Bradford MDC).
• The Upper Tribunal (Lands Chamber) has allowed a claim for compensation from a local authority for tree root damage caused to a conservatory after the local authority had refused consent to the removal of an oak tree protected by a tree preservation order (Burge and another v Gloucestershire Council).

Public procurement:

• The European Commission has published a notice in the Official Journal concerning a request under Article 35 of the new Utilities Directive.
• The Crown Commercial Service has published:
  • updated guidance Amendments to contracts during their term. The guidance relates to the permissible grounds for amendments to contracts under the Public Contracts Regulations 2015; and
  • updated guidance Buying goods and services: options for public sector buyers. The guidance reminds those buying goods and services for the public sector that they can use the Crown Commercial Service to buy a variety of goods and services.

Regulation and enforcement:

• The Environment Agency has announced that:
  • two men have been sentenced to a fine of £500 and a 2 year conditional discharge following their conviction for running an unlawful waste operation; and
  • a skips firm which runs a waste transfer station has been convicted of four environmental offences for repeatedly storing too much waste on its site, and also running an illegal waste site.