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 Court of Protection has announced that its three pilot schemes, the transparency pilot, the case management pilot and the section 49 reports pilot, will continue until they become part of normal court procedure.

Children’s services:

• The Court of Appeal has provided practice guidance on how to avoid issues not being addressed in the judgment when making final orders in care proceedings (Re N-S (Children)).
• The High Court has held that parents were allowed to continue a posting of an online petition seeking the return of their children, who had been made subject of care and placement orders. The petition was considered to be the exercise of their freedom of expression under Article 10 of the European Convention on Human Rights (Southend Borough Council v CO and another).
• The Family Court has:
  • confirmed that local authorities should not feel pressured to issue care proceedings for every unaccompanied asylum-seeking child, and provided a comparison between a care order and accommodation under section 20 of the Children Act 1989 for these children (Re J (Child refugees)); and
  • heavily criticised a local authority for the unnecessary removal of a breastfed child who was placed with his mother under a care order, suggesting that local authorities should return the case to court if the removal is potentially unlawful, or the parent is a vulnerable person (Gloucestershire County Council v A mother and others).
• CAFCASS has published guidance on how CAFCASS professional time can best be used to benefit children in public and private children law matters.

Civil litigation:

• The Court of Appeal has allowed an appeal against a refusal to order the deletion of a privileged email which had been inadvertently disclosed by the appellant to the respondent (Atlantisrealm Ltd v Intelligent Land Investments (Renewable Energy) Ltd).
• HM Courts & Tribunal Services has published its Administrative Court Judicial Review Guide 2017.
• Jackson LJ has presented his Supplemental Report on Fixed Recoverable Costs, which contains recommendations for extending the fixed recoverable costs regime.

Commercial:

• The High Court has applied the test for determining whether parties had intended to be contractually bound in the context of a conversation that took place during an informal business meeting held in a public house (Blue v Ashley).
• The Commercial Litigation Association has held its first professional negligence conference.

Education:

• The House of Commons Library has published a briefing paper on counter-extremism policy in English schools.

Employment and pensions:

• The Supreme Court has unanimously declared that employment tribunal and EAT fees are unlawful, under both domestic and EU Law, and has quashed the Employment Tribunals and the Employment Appeal Tribunal Fees Order 2013, on the basis that it prevents access to justice (R (on the application of Unison) v Lord Chancellor).
• The EAT has considered the interplay in a whistleblowing case between an individual’s personal liability for detriment amounting to dismissal and the employer’s liability for unfair dismissal, including whether the individual could be jointly and severally liable with the employer for the whistleblower’s post-dismissal losses (International Petroleum Ltd and others v Osipov and others).
• HM Courts & Tribunals Service has resumed the online service for submitting employment tribunal claims, following its earlier decision to suspend the online platform after the Supreme Court’s decision that the tribunal fees regime is unlawful.
• The European Commission has opened an infringement procedure against Poland by sending a Letter of Formal Notice.
• The Presidents of the Employment Tribunals in England and Wales and Scotland have issued a joint consultation statement seeking views on proposed revised bands for compensation for injury to feelings in discrimination claims, uprated in line with the Retail Price Index and the uplift in Simmons v Castle.
• The Acas Annual Report and Accounts 2016/17 have been published.
• The Pensions Regulator has published a section 89 report on its regulatory intervention in relation to the London Borough of Barnet Superannuation Fund.

Environment:

• The Court of Appeal has overturned a High Court decision and decided that a local authority was not an appropriate person under the contaminated land regime in Part 2A of the Environmental Protection Act 1990 in respect of contamination arising as a result of its predecessor local authority’s activities (Powys County Council v Price and another).
• The Department for Environment, Food and Rural Affairs has published the Environment Act 1995 (Feasibility Study for Nitrogen Dioxide Compliance) Air Quality Direction 2017 and zone plans (air quality plans for zones).
• The Department for Communities and Local Government has published updated planning practice guidance on:
  • the environmental impact assessment regime; and
  • the hazardous substances consent regime.
• The Mayor of London has published a consultation on the Mayor’s Transport Strategy for London.

FOI and data protection:

• The Digital Economy Act 2017 (Commencement No 1) Regulations 2017 have been made. On 31 July 2017 the regulations brought into force provisions relating to online pornography and charges payable to the Information Commissioner. They will in addition bring into force as of 1 October 2017 provisions relating to public sector data sharing to improve public service delivery, reduce debt owed to the public sector and combat fraud against the public sector.
• The High Court has considered various claims, including that the collection, storage, use and disclosure or information on “extremists” by the Home Office’s Extremism Analysis Unit breached an individual’s right to privacy under Article 8(1) of the European Convention on Human Rights (Salman Butt v Secretary of State for the Home Department).
• The FTT(IR) has ruled that the Chief Constable of West Midlands Police was not entitled to rely upon section 40(5)(a) of the Freedom of Information Act 2000, to refuse to confirm or deny whether it held personal information requested by the appellant (Sweeney v Information Commissioner).
• The Advocate General has delivered an opinion that a candidate’s handwritten examination script and the examiner’s corrections on it constitute personal data within the meaning of Article 2(a) of the Data Protection Directive (95/46/EC), such that the candidate may be entitled to a right of access to their own script under Article 12 of the Data Protection Directive (Nowak v Data Protection Commissioner).
• The Surveillance Camera Commissioner for England and Wales has published a civil engagement plan setting out the framework for facilitating the sharing of information with the public, regarding the operation of surveillance camera systems.

Health:

• The Supreme Court has unanimously allowed an appeal by the appellant care homes, against a decision of the Court of Appeal which had held that the Local Health Boards were only obliged to pay for care home residents’ NHS funded nursing care that is clinical or medical care, by a registered nurse and not for the provision of other services by way of social care (Forge Care Homes Limited and others v Cardiff and Vale University Health Board).
• The CMA has published a summary of its final report in its Phase 2 investigation into the proposed merger between Central Manchester University Hospitals NHS Foundation Trust and University Hospital of South Manchester NHS Foundation Trust.

Property and planning:

• The Supreme Court has considered the meaning and application of government policy contained in paragraphs 14 and 49 of the National Planning Policy Framework (Suffolk Coastal District Council v Hopkins Homes Ltd and another).
• The Court of Appeal has dismissed a council’s appeal against a positive certificate of appropriate alternative development (CAAD). The issue for the court was whether the council, when determining the CAAD application, should have disregarded the re-drawing of a settlement boundary, when disregarding the underlying scheme (Bridgend County Borough Council v Boland and another).
• The government has announced an independent review of building regulations and fire safety.
• The Home Loss Payments (Prescribed Amounts) (England) Regulations 2017 have been made and will come into force on 1 October 2017.
• The Department for Communities and Local Government has published a report summarising research on the possibility of reducing local opposition to new housing through the use of financial payments to those affected.

Public procurement and state aid:

• The European Commission has announced that it has decided, under the state aid rules, to:
  • approve Finnish support for the construction of a multifunctional arena in Tampere; and
  • approve public support granted by the Land of Rhineland-Palatinate to Frankfurt-Hahn airport, a regional airport located approximately 120 km west of the city Frankfurt/Main in Germany.
• The Crown Commercial Service has published its August 2017 update, which covers a wide range of developments, resources and commissioning opportunities.