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 approved the standard terms of a deputy’s appointment including powers to administer a CICA award on behalf of an incapacitated claimant and a form of trust deed to hold the award (PJV v Assistant Director Adult Social Care Newcastle City Council and another).
• The Upper Tribunal has issued its decision on an application by the Secretary of State for Justice, for permission to appeal its earlier decision in MM v WL Clinic and another (MM v WL Clinic and another (Mental health : All)).
• The Court of Protection has introduced a pilot scheme for holding hearings in public. The pilot began on 29 January 2016 and will run until 31 July 2016.
• The Association of Directors of Adult Social Services London has launched a revised version of its Pan London Adult Safeguarding Policy and Procedures.

Central government:

• The House of Commons Communities and Local Government Committee has published its First Report of Session 2015-16, Devolution: the next five years and beyond.

Children’s services:

• The Special Guardianship (Amendment) Regulations 2016 have been made and will come into force on 29 February 2016. They amend the assessment requirements for a special guardianship report. Local authorities are now required to detail the harm suffered or risk of future harm to the child, any relationship between the child and the prospective special guardian and the ability of the prospective special guardian to care for the child until they attain the age of 18.
• The Court of Protection has held that a parent cannot consent to their child’s confinement once the child is 16 years or older and confirmed that parents can consent to the confinement of a child aged 15 years and under (Birmingham City Council v D (by his litigation friend, the Official Solicitor) and others).
• The Family Court has accepted undertakings from a mother and maternal grandmother without any interim order, in order to achieve the interim placement of a child with the maternal grandmother in care proceedings (Re C (A child) (Refusal to make interim care order)).

Civil litigation:

• The High Court has considered a professional negligence claim against a firm of solicitors and a barrister regarding their advice that a personal injury claim be settled just before a trial on liability began. It was alleged that the settlement figure was an under-settlement (Dunhill v W Brook and Co and another).
• In a keynote speech at the Solicitors’ Costs Conference, Jackson LJ called on the Law Society, the Bar Council and CiLEx to consider his proposal for a contingent legal aid fund to be established.

Commercial:

• The TCC has:
  • decided preliminary issues concerning the terms of a sub-contract and the application of the Unfair Contract Terms Act 1977 (Commercial Management (Investments) Ltd v Mitchell Design and Construct Ltd and another); and
  • held that a contractor had no contractual right to make or be paid for an interim application made while the works were ongoing (and after an agreed payment schedule had expired) (Grove Developments Ltd v Balfour Beatty Regional Construction Ltd).
• A bakery’s appeal against a finding of the Northern Ireland County Court’s finding that its refusal to bake a cake with the caption “Support Gay Marriage” was direct discrimination has been adjourned following an intervention by the Attorney General for Northern Ireland.

Education:

• The DfE has published a suite of template documents for schools to adapt when running a procurement process.
• The House of Commons Library has published a briefing paper on the support available in England to children and young people in England with special educational needs.

Employment and pensions:

• The Social Security (Contributions) (Amendment) Regulations 2016 have been made and will come into force on 6 April 2016. The regulations define “apprentice” for the purposes of zero-rate employer NICs contributions in section 9B of the Social Security Contributions and Benefits Act 1992.
• The Public Interest Disclosure (Prescribed Persons) (Amendment) (No 2) Order 2015, which amends the list of prescribed persons to whom disclosures can be made, came into force on 1 February 2016.
• The Court of Appeal has upheld an employment tribunal’s finding that an employer subjected an employee to a detriment by its deliberate failure to act, and did so for the main purpose of preventing him or deterring him from taking part in trade union activities (Bone v North Essex Partnership NHS Foundation Trust).
• The EAT has considered whether there had been a business transfer or service provision change under TUPE 2006 where a subcontractor had suspended its operations shortly before the main contract was awarded to a new contractor (Mustafa and another v Trek Highways Services Ltd and others).
• The Civil Service and Cabinet Office have published a consultation paper on the reform of the Civil Service Compensation Scheme as part of a consultation on public sector exit payments.
• The Government Equalities Office, in partnership with Deloitte, has published a report on closing the gender pay gap.
• The government has appointed Baroness McGregor-Smith to lead a review into increasing progression in the labour marker by people from black and minority ethnic backgrounds.

Environment:

• The Well-being of Future Generations (Wales) Act 2015 (Commencement No 2) Order 2016 has been made. The order commences the rest of the Act on 1 April 2016 and 6 April 2016, which includes the well-being goals and the sustainable development principle.
• A waste operating company has been fined following a guilty plea to offences under the Environmental Permitting Regulations 2010 and the Environmental Protection Act 1990 and failing to comply with enforcement notices.

FOI and data protection:

• The Investigatory Powers Tribunal has declined to award compensation to a journalist, following its earlier ruling that his rights under Article 10 of the European Convention of Human Rights had been infringed by an authorisation for data issued under section 22 of the Regulation of Investigatory Powers Act 2000 (News Group Newspapers Ltd and others v Commissioner of Police of the Metropolis).
• The National Crime Agency, National Police Chiefs Council and HM Revenue and Customs have submitted a joint response to the Joint Committee on the Draft Investigatory Powers Bill.
• The EU and US have reached a political agreement on the new framework for transatlantic data flows.
• The ICO has launched a consultation on revised privacy notices code of practice.

Health:

• The Court of Appeal has held that local health boards in Wales can set funded nursing care rates (Forge Care Homes Limited v Cardiff and Vale University Health Board).

Housing:

• The High Court has dismissed four claims for judicial review challenging a council’s scheme for assistance under Part VII of the Housing Act 1996 (R (Edwards and others) v Birmingham City Council).
• The House of Commons Library has published a research briefing providing information on which claimants are affected by the reduction in Housing Benefit when under-occupying a social rented home.

Local government law:

• The Local Government (Standards Committees, Investigations, Dispensations and Referral) (Wales) (Amendment) Regulations 2016 have been laid before the National Assembly for Wales and will come into force on 1 April 2016.

Property and planning:

• The Court of Appeal has considered the extent to which it was possible to entertain an appeal against a planning enforcement notice, on the basis that the steps the notice contained exceeded what was necessary to remedy any injury to amenity caused by the planning breach, when planning permission was not sought for the breach of planning control (Miaris v Secretary of State for Communities and Local Government and another).
• The High Court has:
  • dismissed a judicial review application in respect of a planning condition which provided that certain retailers could only occupy space in a new development if they also retained space in an existing shopping centre (R (Skelmersdale Limited Partnership) v West Lancashire Borough Council and another); and
  • considered a claim for negligent misrepresentation and held that a firm of solicitors had assumed a duty to take care in the representations it made to the Land Registry on an application to discharge a mortgage (Chief Land Registrar v Caffrey & Co).
• The Upper Tribunal (Lands Chamber) has reviewed a deed of variation of a lease and held that there was no implied surrender and regrant arising from it and so the tenant was able to use the covenant modification procedure contained in section 84 of the Law of Property Act 1925 (Stevens v Ismail).
• The Land Registry has revised Land Registry Practice Guide 67: Evidence of identity: conveyancers to clarify the requirements for photographs attached to identity forms, and the practitioners who can verify identity.

Public procurement:

• The General Court has handed down its judgment on an appeal relating to a decision of the European Commission to award a procurement contract to another bidder (PRIMA v Commission).
• The Cabinet Office has published the government’s response to consultations on the transposition of Directive 2014/23 on the award of concession contracts and Directive 2014/25 on procurement by entities operating in the water, energy, transport and postal services sectors and repealing Directive 2004/17.

Regulation and enforcement:

• A care home company has been fined £30,000 for corporate manslaughter after the death of an 86 year old resident.
• BIS has published the government’s response to a consultation on devolving Sunday trading rules to local areas.