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.

Autumn 2017 Budget: key public sector announcements:

• The Chancellor of the Exchequer has delivered the Autumn 2017 Budget. The Budget covers a number of items that are of interest to the public sector.

Adult social services:

• The First Secretary of State and Minister for the Cabinet Office has announced that the government will publish a green paper on care and support for older people by Summer 2018.
• The National Assembly for Wales has announced a new inquiry into how effective support for vulnerable people in their homes is in Wales.
• The Local Government & Social Care Ombudsman has published a report on its investigation into a complaint against the London Borough of Croydon concerning its failure to comply with the Care Act 2014 continuity of care provisions (reference number 16 013 606).

Central government:

• The House of Commons’ Exiting the European Union Committee has published a report on the European Union (Withdrawal) Bill 2017-19.

Children’s services:

• The Supreme Court has agreed with the Court of Appeal that it is lawful for the government to amend regulations to exclude Zambrano carers from claiming certain non-contributory social security assistance. The government was requested by the Supreme Court to provide guidance to local authorities about the level of support they should provide to children who are cared for by Zambrano carers, under section 17 of the Children Act 1989 (R (HC) v Secretary of State for Work and Pensions and others).
• The High Court has given guidance about the test for evaluating the competence or capacity of a child mother under 16 to consent to her child’s adoption (Re S (Child as parent: Adoption Consent)).

Civil litigation:

• HM Courts and Tribunals Service has published details of which courts and tribunals will be closed over the Christmas and New Year period.

Education:

• The Department for Education has published a consultation on the implementation of changes to school loan schemes.
• The House of Commons Library has published a briefing paper listing various frequently asked questions about academies and free schools.

Employment and pensions:

• The ECJ has held that a non-EU national may benefit from a derived right of residence in the Member State in which an EU citizen family member resided before acquiring the nationality of that Member State in addition to their nationality of origin by virtue of EU law (Toufik Lounes v Secretary of State for the Home Department).
• The EAT has considered whether a tribunal had erred in deciding that an employer had established illegality as the potentially fair reason for dismissal in a case concerning right to work documentation (Baker v Abellio London Ltd).
• The Central Arbitration Committee has decided that Deliveroo riders are not workers for the purposes of a union’s application for compulsory recognition under Schedule A1 to the Trade Union and Labour Relations (Consolidation) Act 1992. The existence of an “almost unfettered” right of substitution was fatal to the union’s argument that the contracts were for personal service (Independent Workers Union of Great Britain v RooFoods Ltd (t/a Deliveroo)).
• The government has announced the full roll-out of its scheme for refunding tribunal and EAT fees.
• The High Court has rejected a local authority’s appeal against a determination of the Pensions Ombudsman regarding the use of its statutory recoupment power (London Borough of Enfield v Jossa).

Environment:

• The Environmental Impact Assessment (Miscellaneous Amendments Relating to Harbours, Highways and Transport) Regulations 2017 have been made and will come into force on 5 December 2017.
• The High Court has decided that the statutory compensation scheme under section 177 of the Water Resources Act 1991(WRA 1991) for injury arising from the Environment Agency’s drainage or flood defence work under the WRA 1991, does not provide an exclusive remedy for the loss suffered by a claimant (Hall v Environment Agency).
• The Department for Environment, Food and Rural Affairs has published an opinion piece from its Secretary of State Michael Gove on plans to consult on a new, independent body for environmental standards.

FOI and data protection:

• The Cabinet Office has launched a consultation on a revised Code of Practice to the Freedom of Information Act 2000.

Health:

• London Councils, a cross-party organisation representing the 32 London Borough Councils and the City of London, has announced that a health and social care devolution agreement had been signed in relation to London. The agreement gives the Mayor of London, the London boroughs and the City of London and health leaders more control over health and care in the capital, and the ability to create more joined-up services for London residents.

Housing:

• The Office of National Statistics has re-classified housing associations as private bodies following the Regulation of Social Housing (Influence of Local Authorities) (England) Regulations 2017 coming into force on 16 November 2017.
• The Department for Communities and Local Government has published a letter to the Chair of the Communities and Local Government Select Committee providing further information on the government’s plans to make secondary legislation before the commencement of the Homelessness Reduction Act in April 2018.
• The University of Bristol Law School has published a report into housing health and safety law.
• The House of Commons Library has published a briefing paper considering how affordable housing is defined in England.

Local government law:

• The Department for Transport has announced that new legislation is being introduced to turn Transport for the North into the first statutory sub-national transport body, giving it unprecedented legal powers and duties as part of its commitment to the “Northern Powerhouse”.

Property and planning:

• The Planning Act 2008 (Commencement No 3) (England) Order 2017 has been made. It will bring four provisions of the Planning Act 2008 into force (so far as they are not already in force) on 1 January 2018, in relation to England only.
• The Infrastructure Planning (Compulsory Acquisition) (Amendment) (No 2) Regulations 2017 have been made and will come into force on 30 November 2017.
• The High Court has:
  • considered the meaning of “isolated” in paragraph 55 of the National Planning Policy Framework (Braintree District Council v Secretary of State for Communities and Local Government and others); and
  • considered whether the head tenant of a block of flats was entitled to release the prescriptive right of light appurtenant to its headlease which burdened an adjoining development site (Metropolitan Housing Trust Ltd v RMC FH Co. Ltd).
• The Upper Tribunal has considered the compulsory purchase compensation payable in respect of a derelict house acquired as part of a wider regeneration scheme (Khan v Stockton-On-Tees Borough Council).
• The Planning Inspectorate has published a decision notice looking at the interpretation of “submitted” in relation to commencement notices (APP/L3245/L/17/1200114).
• The government has provided additional funding to assist mineral planning authorities with shale planning applications.
• The Welsh Government has published a consultation on draft statutory instruments and national standards for sustainable drainage systems which are required to implement Schedule 3 to the Flood and Water Management Act 2010.
• The Law Society has announced that changes to the way the CHAPS system of payment is provided will require amendments to the latest editions of the Standard Commercial Property Conditions and the Standard Conditions of Sale.

Public procurement and state aid:

• The Advocate General has found no objection in principle to the correction of errors in tenders being subject to a payment by the bidder (MA.T.I SUD S.p.A v Societa Centostazioni S.p.A; and Duemme SGR S.p.A v CNPR).
• The European Commission has:
  • announced its decision determining that some support measures granted by Greece to Hellenci Defence Systems S.A constituted illegal state aid; and
  • approved under EU state aid rules a German scheme supporting solar panels being erected on the roofs of apartment buildings.

Regulation and enforcement:

• The Court of Appeal, in the first case to address the Supreme Court decision addressing the issue of dishonesty in Ivey v Genting Casinos (UK) Ltd t/a Crockfords, has  stated that “it is difficult to imagine the Court of Appeal preferring Ghosh to Ivey in the future” (DPP v Patterson).
• The High Court has found that the Magistrates’ Court was incorrect to equate an application for compensation, following a failed application by the police for a closure order, with an application for costs and accordingly the starting point was not that there should be no compensation (R (Qin) v Commissioner of Police of the Metropolis).
• The Home Office has launched a consultation on the Regulation of Investigatory Powers Act 2000: draft codes of practice.