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.

2016 Autumn Statement: key public sector announcements

The Chancellor of the Exchequer, Philip Hammond, has delivered the 2016 Autumn Statement. The Statement covers a number of items that are of interest to the public sector including:

• A new Housing Infrastructure Fund allocated to local government on a competitive basis to increase housing supply.
• Further initiatives towards devolution in England aimed at supporting local areas to address productivity barriers and city deals in Scotland, Wales and Northern Ireland.
• A new pipeline of projects for delivery through the PF2 Public Private Partnership Scheme.

Adult social services:

• The Upper Tribunal has upheld a decision of the First -tier Tribunal which refused to discharge a patient from guardianship under the Mental Health Act 1983, in circumstances where she was also subject to a standard authorisation under the deprivation of liberty safeguards in the Mental Capacity Act 2005 (GW v Gloucestershire County Council).
• The Vice-President of the Court of Protection has released practical guidance setting out suggestions as to how practitioners might consider enhancing the participation of the person who lacks capacity and vulnerable persons in Court of Protection proceedings.
• The House of Commons Library has published a briefing paper on the current state of the market for residential care and recent announcements on funding for social care.

Central government:

• The case of the Secretary of State for Exiting the European Union has been published in his appeal to the Supreme Court of the High Court’s decision in R (Gina Miller and Deir Tozetti Dos Santos) v The Secretary of State for Exiting the European Union. The Supreme Court has also announced that it has granted applications to intervene in the proceedings from, amongst others, the Scottish and Welsh governments.
• The House of Commons Library has published a briefing paper on Legislating for Brexit: the Great Repeal Bill.
• The Department for Exiting the European Union has published a list of answers to frequently asked questions about the UK’s departure from the European Union.

Children’s services:

• The Court of Appeal has confirmed that the duty to accommodate under section 20 of the Children Act 1989 is not triggered if there is a private family arrangement in place (R (T) v Hertfordshire County Council and another).
• The High Court has decided that the legal aid statutory charge did not apply to a human rights damages claim brought for breach of a young person’s confidentiality. The claim was treated as separate to the wardship proceedings involving the young person and the application for a declaration of the breach (P v A Local Authority).

Civil litigation:

• The High Court has considered:
  • whether England had jurisdiction and was the appropriate forum where Scotland was arguably more appropriate, in an application for an interim injunction (R (Biffin Ltd and others) v HM Commissioners for Revenue & Customs); and
  • the recoverability of the claimants’ costs in an application precipitated by the defendants’ failure to engage cooperatively in the process of producing expert evidence (UPL Europe Ltd and another v Agchemaccess Chemicals Ltd and others).
• The TCC has considered the appropriate costs order following its substantive judgment on a claim and counterclaim relating to a contract for the supply of highway maintenance and other services. A point of particular interest is the consideration of the extent to which courts should have regard to proportionality issues when determining the appropriate costs order under CPR 44.2 (Amey LG Ltd v Cumbria County Council).
• The County Court has allowed an appeal by a defendant, who claimed that Part 36 costs consequences could not be applied to an offer that purported to be a Part 36 offer, but which was exclusive of interest (Potter v Sally Montague Hair and SPA).

Commercial:

• The TCC has ordered a local authority to pay amounts withheld under an NEC-style highways maintenance contract (Amey LG Ltd v Cumbria County Council).

Employment and pensions:

• The ECJ has held that Article 4(1) of the Equal Treatment Framework Directive (2000/78/EC) does not preclude the imposition under Spanish law of an upper age limit of 35 years for applicants to the Basque Police and Emergency Services Academy (Gorka Salaberria Sorondo v Academia Vasca de Policía y Emergencias).
• The EAT has held that:
  • an employment tribunal had erred in its approach to whether or not an employee had been denied his right to a rest break under the Working Time Regulations 1998 (Grange v Abellio London Ltd); and
  • an employment tribunal had erred in its approach to the reasonableness test when deciding that a conduct dismissal was fair (Bandara v British Broadcasting Corporation).
• The government has launched a consultation on how to best support disabled people and those with long-term health conditions to work.

Environment:

• The Ministry of Justice has published the government response to its 2015 consultation on adjusting the costs capping order regime for Aarhus Convention claims under the Civil Procedure Rules in England and Wales.

FOI and data protection:

• The European Court of Human Rights has held that refusal of a request for information in the public interest constituted an unjustified breach of the applicant’s rights to freedom of expression under Article 10 of the European Convention on Human Rights (Magyar Helsinki Bizottság v Hungary).
• The Court of Appeal has dismissed an appeal against a judge’s refusal of permission to amend the claimant prisoner’s judicial review claim to substitute a second escape risk classification decision for a first decision in relation to a claim under the Data Protection Act 1998 (R (on the application of Hussain) V Secretary of State for Justice).

Health:

• The High Court has held that a local authority was not entitled to refuse to provide after-care services under section 117 of the Mental Health Act 1983, on the basis that the claimant was in receipt of damages for personal injury that included the cost of his future care (Tinsley v Manchester City Council and South Manchester Clinical Commissioning Group).

Housing:

• The House of Commons Library has published a briefing paper discussing overcrowded housing in England.
• The Housing Minister has announced that the “pay to stay” scheme for high income social housing tenants will not become mandatory.

Local government law:

• The Department for Communities and Local Government has published a consultation seeking views on allowing joint committees and combined authorities in England to hold meetings by video conference.

Property and planning:

• The High Court has:
  • upheld the refusal of planning permission for a commercial to residential conversion. The court confirmed that paragraph 22 of the National Planning Policy Framework did not apply in this case as, although within a conservation area that safeguarded commercial uses, the site had not been “allocated” for employment use (SAN Investments Ltd v Secretary of State for Communities and Local Government and another); and
  • held that building operations to convert an agricultural building to a dwellinghouse under Class Q(b), Part 3, Schedule 2 to the Town and Country Planning (General Permitted Development) (England) Order 2015 should fall short of rebuilding (Hibbitt and another v Secretary of State for Communities and Local Government and another).
• The National Infrastructure Commission has published an interim report on the Cambridge/Milton Keynes/Oxford corridor.

Public procurement:

• The ECJ has:
  • handed down three orders on preliminary references from Italian courts concerning the compatibility of national law with the EU procurement rules on exclusion of tenders (Spinosa Costruzioni Generali SpA and Melfi Srl v Comune di Monteroduni, Edra Costruzioni Soc. coop. and Edilfac Srl v Comune di Maiolati Spontini, MB Srl v Società Metropolitana Acque Torino (SMAT) SpA); and
  • published an order on an appeal against a General Court judgment that dismissed an action challenging a decision that eliminated the appellant from the list of approved subcontractors to be included in a bid by IDEST Communication SA for framework contracts for the translation of legal texts from certain official languages of the European Union into French (Alain Laurent Brouillard v European Court of Justice).

Regulation and enforcement:

• The High Court has held that a council’s consultation on a proposed Traffic Regulation Order was adequate despite being issued at the same time as the statutory notice process and that the evidence it had considered was otherwise a matter for its discretion (Surrey County Council v Royal Borough of Windsor and Maidenhead).
• The Health and Safety Executive has announced that a council has been fined £75,000 after pleading guilty in the Crown Court to breaching section 3(1) of the Health and Safety at Work etc. Act 1974 and regulation 3 of the Management of Health and Safety at Work Regulations 1999.
• The Surveillance Camera Commissioner has published his third annual report for the period 2015 to 2016.