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 held that the welfare of a vulnerable adult who may not have been a domestic habitual resident was not outside the jurisdiction of the High Court on account of her British citizenship (In the matter of Mrs Ann C).
• The Department of Health has published a note providing an update on the determination of questions of ordinary residence under section 40 of the Care Act 2014.
• The CMA has published a blog post on its website to encourage people to inform the CMA’s market study into the supply of care home services for the elderly in the UK.

Central government:

• The Court of Appeal has dismissed appeals against the rejection of a judicial review challenge to tobacco branding restrictions (R v Secretary of State for Health ex parte British American Tobacco UK Ltd and others).
• The Cabinet Office has dropped its proposed anti-lobbying clause and published ten new standards to improve the efficiency and effectiveness of grant making across government.

Children’s services:

• The High Court has:
  • clarified the criteria for the recognition of a foreign adoption at common law (Re N (A Child)); and
  • held that a council’s decision not to provide further accommodation or support to a teenager who absconded from placements and refused to go to an identified placement was lawful (R (A) v London Borough of Haringey).
• The Family Court has:
  • highlighted the difficulties in finding secure accommodation placements in Wales (Re K (A Child)); and
  • emphasised the importance of holding an initial child protection conference in a private law children case where the father was alleged to have sexually abused his son (Re V (A Child) (Rev 1)).

Civil litigation:

• The Civil Proceedings Fees (Amendment) Order 2016 has been made, introducing revised trial fees which will come into force on Monday 6 March 2017.
• The Court of Appeal has considered an appeal regarding the assessment of damages for equitable compensation and gave guidance on how courts should deal with litigants in person who bombard them with communications (Agarwala v Agarwala).
• The Master of the Rolls has delivered a speech at the LawWorks Annual Pro Bono Awards Lecture 2016 on the subject of access to high quality legal advice and representation, as well as court access.

Education:

• The Department for Education has published a summary of the responses to its consultation on proposed changes to early years funding for three and four year olds, together with its response, intended next steps and local authorities’ specific national funding formula allocations.
• The Department for Education has published new guidance on establishing and developing multi-academy trusts in England.

Employment and pensions:

• Five sets of draft regulations have been published by the government, defining “important public services” for the purposes of the Trade Union Act 2016.
• The final draft of the Equality Act 2010 (Gender Pay Gap Information) Regulations 2017 has been published and will come into force on 6 April 2017, subject to parliamentary approval.
• The High Court has held that an employer was not vicariously liable for a violent assault on an employee by the employer’s managing director at an impromptu drinking session after the Christmas party (Bellman v Northampton Recruitment Ltd).
• The EAT has:
  • considered whether a tribunal had erred in finding that an employee had made a protected disclosure, and whether the employee had been subjected to a detriment and unfairly dismissed for doing so (Eiger Securities LLP v Korshunova); and
  • held that it was permissible for an employment tribunal to make a personal injury award for depression in a disability discrimination case in the absence of medical evidence (Hampshire County Council v Wyatt).
• The Department for Business, Energy and Industrial Strategy and the MoJ have launched a joint consultation setting out proposals for reform of the employment tribunals and EAT.
• The government has published a revised Code of Practice on picketing.
• The Ministry of Justice has published the statistics for tribunals for the period July to September 2016.

Environment:

• The Court of Appeal has decided that whether material is waste for the purposes of landfill tax has to be decided by reference to the form of the material at the time of its disposal (Patersons of Greenoakhill Ltd v Revenue & Customs).

FOI and data protection:

• The Privacy and Electronic Communications (EC Directive) (Amendment) (No 2) Regulations 2016 have been published, and transfer the function of maintaining, and of keeping the Telephone Preference Service and the Fax Preference Service up to date, from Ofcom to the ICO.
• The Investigatory Powers Tribunal has held that bulk communications data supply is compatible with Article 8 ECHR (Privacy International v Secretary of State for Foreign and Commonwealth Affairs and others).
• The Information Commissioner has outlined issues she perceives in freedom of information law and suggested substantive solutions to them.
• The ICO has fined two charities for breaching data protection rules.

Housing:

• The Department for Communities and Local Government has published a consultation on proposed ‘banning order offences’ in England under the Housing and Planning Act 2016.

Local government law:

• The government has published the draft Public Service Ombudsman Bill.
• The Local Government Ombudsman has issued guidance on the key principles of complaint handling in a devolved setting for combined authorities.
• The Counsel General for Wales has announced that the Welsh Government will introduce a major programme to build a distinct body of Welsh law.

Property and planning:

• The High Court has:
  • held that if a residential basement involves engineering operations amounting to a “separate activity of substance”, express planning permission from the local planning authority is required (Eatherley v London Borough of Camden and another); and
  • dismissed a challenge by a landowner to a confirmed compulsory purchase order (Mapeley Beta Acquisition Company Ltd v Secretary of State for Communities and Local Government and another).
• The Upper Tribunal (Lands Chamber) has exercised its discretion to modify restrictive covenants that prevented building on the burdened land (Millgate Developments Limited and another v Smith and another, Re: Exchange House, Woodlands Park Avenue, Maidenhead).
• HMRC has published updated guidance on the 3% SDLT surcharge for acquisitions of additional residential properties.

Public procurement:

• The ECJ has ruled that, in relation to the “Teckal test”, activities carried out for third parties must be disregarded, but activities carried out for controlling authorities which pre-date controls are relevant (Undis Servizi Srl v Comune di Sulmona and others).
• The General Court has:
  • handed down two orders on appeals by tenderers against a decision by the European Commission to award a procurement contract to a different bidder (EuroPower v Commission and STC v Commission); and
  • dismissed an appeal by a tenderer against the rejection of its tender within the framework of a EuropeAid closed procurement (Evropaïki Dynamiki – Proigmena Systimata Tilepikoinonion Pliroforikiskai Tilematikis AE v European Commission).
• The French Conseil d’État, France’s highest administrative jurisdiction, has partially annulled an arbitral award arising out of a public law contract, and ruled on the scope of its power to review such awards (Conseil d’État, Seventh Chamber of the Litigation Section No.388806).
• The Crown Commercial Service has published Procurement Policy Note 10/16 dealing with onerous practices in procurement and contracting which result in disproportionate risk transfer between buyers and suppliers.
• BEIS has updated its procurement guidance on the use of steel in infrastructure projects.