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

• On 27 October 2015, the Care and Support (Deferred Payment) (Wales) Regulations 2015 were made and will come into force on 6 April 2016.

Central government

• On 4 November 2015, the House of Commons Library published a briefing paper on conventions on the relationship between the House of Commons and the House of Lords.

Children’s services

• The High Court has ruled that an incorrect statement made by a police officer during a child protection conference that a father had a previous conviction or caution for domestic violence was not capable of being defamatory as the officer had immediately clarified the veracity of the statement (Elliott v Staffordshire Police).
• The Family Court has confirmed that a DBS enhanced check is not required as part of the local authority’s special guardianship report for the court to make a special guardianship order (Re T (Final order and DBS checks)).

Civil litigation

• The Supreme Court has reset and clarified the contractual penalty rule, unanimously allowing the appeal in Cavendish and dismissing, by a majority of six to one, the appeal in ParkingEye. In both cases, contractual clauses that had been alleged to amount to penalties were upheld as valid and enforceable (Cavendish Square Holding BV v El Makdessi and ParkingEye Ltd v Beavis).
•  The Senior Costs Office in a provisional assessment judgment has held that costs of approximately £32,300 on a claim that settled for £3,500 plus costs, were neither reasonable nor proportionate and reduced them substantially (Hobbs v Guy’s And St Thomas NHS Foundation Trust).
• The High Court has confirmed that legal advice privilege extends to communications made and documents created in the course of providing legal advice, including memoranda updating a client on the status of an investigation and notes of discussions between a client and his legal advisers. (Property Alliance Group Ltd v Royal Bank of Scotland Plc).
• The TCC has refused to transfer a £17,000 claim against a party wall surveyor into the court from the Central London County Court list applying Akenhead J’s guidance from West Country Renovations Ltd v McDowell and another, which states that claims under £250,000 should, subject to a non-exhaustive list of exceptions, be commenced in the TCC list in the County Court (Chliaifchtein v Jessop).

Commercial

• The government has laid before Parliament the draft Legislative Reform (Exempt Lotteries) Order 2016, deregulating incidental non-commercial, private society, work and residents’ lotteries. The changes are intended to make it easier for small scale lotteries to be used to raise money for charities and good causes.

Education

• The Education Funding Agency (EFA) has published:
  • updated information about academy admissions arrangements for entry in September 2017; and
  • a consultation on a proposed change to section 6.2 of the statutory guidance, Scheme for financing schools, in relation to funding for school admission appeals.
• The House of Commons Library has published a briefing paper on religious education in schools in England.
• The Welsh Government has published a consultation on harmonising school term dates for schools in Wales in 2017/18.

Employment and pensions

• The government has published the draft Public Sector Exit Payment Regulations 2016, which will impose a cap of £95,000 on the total aggregate value of exit payments made to most public sector workers.
• The EAT has revisited the guidance found in Hadjioannou v Coral Casinos Ltd [1981] IRLR 352 on when it is appropriate to consider disparity of treatment between employees in similar circumstance. The EAT found that there had been a unreasonable difference and that the employer had applied a “defence of provocation” differently between the two employees, which rendered the dismissal unfair (MBNA Limited v Jones).
• The Prime Minister and the Women and Equalities Minister have announced new measures to address gender pay inequality and “end the gender pay gap in a generation” indicating that bonus information will be included within gender pay gap reporting and that the obligation to publish gender pay data will be extended to public sector employers.
• BIS has published a response to its consultation on tackling intimidation of non-striking workers, which sought views on proposed reform of the law relating to picketing and protests in order to address intimidation and so-called “leverage tactics” by unions.
• The Deputy Pensions Ombudsman has found maladministration in upholding a complaint by a member whose employment was terminated in November 2009 due to medical incapacity but who was refused an ill-health early retirement pension under regulation 20 of the Local Government Pension Scheme (Benefits, Membership and Contributions) Regulations 2007 (Determination in a complaint by Mrs Z Hussain).

Environment

• The Greenhouse Gas Emissions Trading Scheme (Amendment) Regulations 2015 were made on 1 November 2015 and will come into force on 4 December 2015.
• The Environment Agency has:
  • announced that it had accepted its largest enforcement undertaking so far, from HiPP UK Ltd, which offered an enforcement undertaking of almost £415,000 for offences under the Producer Responsibility Obligations (Packaging Waste) Regulations 2007; and
  • published a response to its December 2014 consultation on proposals for new and revised standard rules for certain waste activities, including land spreading, deposit for recovery and soil recycling.
• HMRC has published a revised Excise Notice CCL1/3 on reliefs and exemptions from the climate change levy.
•  DECC has published a consultation on proposed restrictions on surface development for hydraulic fracturing for shale gas (fracking) through the petroleum exploration and development licence.
• The European Commission has published a roadmap on a renewable energy package.

FOI and data protection

• The draft Investigatory Powers Bill was published by the Home Office on 4 November 2015.
• The First-tier Tribunal (Information Rights) has refused an appeal by the Department for Energy and Climate Change (DECC) against an Information Commissioner Decision Notice that ordered disclosure of a letter from the Secretary of State for Energy and Climate Change to the Prime Minister complaining about the conduct of another government minister. The tribunal held that the information in the letter was not not “environmental information” for the purposes of the EIR and although section 35 of the Freedom of Information Act 2000 applied the strong public interest in disclosure outweighed the maintenance of the exemption (Department of Energy and Climate Change v Information Commissioner).
• The ICO has announced that it has updated and revised a number of pieces of guidance following the coming into force in July 2015 of the Re-use of Public Sector Information Regulations 2015.
• The Culture, Media and Sport Committee has launched an inquiry into cybersecurity and the protection of personal data online, following a cyberattack on telecom and internet service provider TalkTalk’s website.

Health

• The DH has published a data sharing factsheet on the transfer to local authorities of 0 to 5 year old children’s public health commissioning .

Housing

• The Divisional Court has held that a magistrates’ court was wrong to hold that a landlord had a reasonable excuse for failing to obtain a licence in respect of his tenanted property under Part 3 of the Housing Act 2004, as the duty on local housing authorities under section 85(4) of the HA 2004 to take reasonable steps to secure that licence applications are made to them in respect of relevant properties was not focused on any relevant landlord. This was a targeted duty, rather than a duty to each and every landlord in a relevant area (Thanet District Council v Grant (unreported)).
• The DCLG has published a technical discussion paper setting out proposals to extend the mandatory licensing regime for houses in multiple occupation (HMOs) and speed up the licensing process. The proposals apply to England only.

Local government law

• The High Court has held that changes to a council tax scheme introduced by the London Borough of Havering were not discriminatory for the purposes of the public sector equality duty (PSED) under the Equality Act 2010 and Article 1 of the First Protocol together with Article 14 of the European Convention on Human Rights. However, there had been a failure by the full council to have due regard to the PSED because not every member had been provided with a report and accompanying equality impact assessment looking at the possible adverse impact of the changes (R (Logan) v London Borough of Havering).
• The DCLG has published a summary of responses and the government’s response to its 2014 consultation on the Bellwin scheme of emergency financial assistance to local authorities, under section 155 of the Local Government and Housing Act 1989.

Property and planning

• The Court of Appeal has held that a local planning authority (LPA)’s duty to co-operate under section 33A of the Planning and Compulsory Purchase Act 2004 was a duty it had to perform when preparing a development plan document. It was not a duty for the LPA to perform, or perform again, after the independent examination stage had begun. In this case the section 33A duty had not been engaged, and there had been no failure on by the LPA to comply with that duty (Samuel Smith Old Brewery (Tadcaster) v Selby District Council).
• HMRC has published a technical note and call for evidence on the withdrawal of nine extra statutory concessions including the VAT zero-rating of approved alterations to qualifying protected buildings.

Public procurement

• The General Court has dismissed an appeal against a decision of the European Parliament to reject bids of two companies from a tender, after one of them had failed to provide the authorisation required under Belgian law for the provision of security services. Parliament had not breached the principle of proportionality in requiring that all tenderers held the Belgian authorisation (Gruppo Servizi Associati SpA and Security Guardian’s Institute v European Parliament).
• The Crown Commercial Service has published a set of slides used in training sessions to explain the reform of the public procurement rules in the utilities sector.
• The government has announced that, with formal effect from 1 January 2016, it will merge the Major Projects Authority with Infrastructure UK. Together, they will form the Infrastructure and Projects Authority.