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 Public Sector e-mail.

Central government:

• The Crime and Courts Act 2013 (County Court and Family Court: Consequential Provision) Order 2014 came into force on 4 July 2013 and makes consequential amendments to legislation to reflect the creation of the Family Court on 22 April 2014.
• The Court of Appeal has upheld a TCC decision that a sub-sub-sub contractor was liable to indemnify a sub-sub-contractor against damage to a development in London (Greenwich Millennium Village Ltd v Essex Services Group plc and others).
• The TCC has ordered that a defendant, under CPR 31.14, should disclose a settlement agreement referred to in Part 20 proceedings that the defendant had issued against a third party contractor (Co-Operative Group Ltd v Carillion JM and another).
• The High Court has considered the appeal of:
  • an order granting a party permission to use witness summaries and has emphasised the burden on a party wanting to use a witness summary (Scarlett v Grace); and
  • a decision on whether a disclosed document was protected by legal advice privilege and whether an order should be made maintaining its confidentiality and precluding its use (Kousouros v O’Halloran and another).
• The Inner House of the Court of Session has rejected a contractor’s appeal against an adjudicator’s decision and enforced it (Appeal by Charles Harles Henshaw and Sons Ltd against Stewart and Shields Ltd).

Education and social services:

• The Court of Appeal has set aside care and placement for adoption orders due to the first instance judge prematurely ruling out the possibility of considering the child’s placement with grandparents in Poland, and the local authority’s failure to consider what family placement options were available (P (A child)).
• The High Court has declined a request by parents to transfer care proceedings to Latvia under Article 15 of BIIR (Southampton City Council v A Mother and others).
• The Court of Protection has:
  • commented on the duties of an attorney under a lasting power of attorney where there is a dispute with the NHS about entitlement to public funds (Re OW, Public Guardian v JW); and
  • considered the meaning of “prohibiting” contact as provided in section 17(1)(c) of the Mental Capacity Act 2005, to determine whether an order setting out arrangements as to contact were outside the statutory powers capable of being delegated to a Court of Protection deputy (PB v RB and others).
• The government has published a response to the House of Lords Select Committee report on the Mental Capacity Act 2005.

Employment and pensions

• The Supreme Court has held that the setting of agricultural wages in Wales is a devolved matter (Agricultural Sector (Wales) Bill (Attorney General for England and Wales, Ref)).
• The Employment Appeal Tribunal has allowed an appeal against a decision that a claim against a local authority should be dismissed because the proper respondent was the governing body of a school (Greenwood v Cornwall Council and another).
• BIS has published a standard form for employees to use when making a flexible working application under the new flexible working scheme.
• The High Court has ruled that:
  • an NHS administering authority was entitled to fully recover an overpaid lump-sum death benefit that it paid by mistake (NHS Business Services Authority v Wheeler and others); and
  • a member who was transferring employment under the Fair Deal was entitled to retain her favourable active member PCSPS rights, even though her pensionable service had ceased and her new employer did not participate in the PCSPS (Annette Ellis v Cabinet Office).

Environment:

• The European Commission has adopted a Communication on a zero-waste circular economy and has published a draft amending Waste Framework Directive.
• The Waste Electrical and Electronic Equipment and Restriction of the Use of Certain Hazardous Substances in Electrical and Electronic Equipment (Amendment) Regulations 2014 come into force on 25 July 2014.
• The DCLG has published the government’s response to its consultation on allowable solutions for zero carbon homes.

FOI and data protection:

• The FTT(IR) has ruled that an NHS trust was not entitled to refuse an information request as vexatious under FOIA where the trust’s own failure to provide advice and assistance was the cause of the requester’s repeated correspondence (Chadha v Information Commissioner).
• The MoJ has announced that the ICO’s powers of compulsory audit for data protection compliance will be extended to include public authority NHS bodies.
• The Law Commission has presented to Parliament a scoping report on its review of the law on data sharing between public bodies.

Health:

• Monitor has published its report on the proposed merger of pathology services in the north west of England.

Housing:

• The DCLG has published a consultation on proposals to require English local authorities and other social landlords to publish the values of the social housing assets that they hold.

Judicial review:

• The High Court has:
  • granted an interlocutory application for a declaration under section 6 of the Justice and Security Act 2013 that a closed material procedure may be used in a judicial review claim (R (Sarkandi) and others v Secretary of State for Foreign and Commonwealth Affairs); and
  • dismissed a judicial review challenge to an enforced academisation order by the Secretary of State (R (Governing Body of the Warren Comprehensive School and another) v Secretary of State for Education).
• The House of Lords Constitution Committee has published its 2nd Report of Session 2014-15 on the Criminal Justice and Courts Bill 2014-15.
• The government published its response to the Joint Committee on Human Rights’ Thirteenth Report of the 2013-14 Session on the government’s proposals to reform judicial review.

Property and planning:

• The High Court has held that a landlord (as freehold owner) was liable to pay business rates on an empty property after the liquidator disclaimed the lease (Schroder Exempt Property Unit Trust and another v Birmingham City Council).
• In its response to the BIS consultation on the reform of the Land Registry, the government has confirmed that the Land Registry will not be privatised in the foreseeable future.
• The documents in the Model Commercial Lease (MCL) suite are now available for use and can be downloaded from the MCL website.
• The DfT has launched a consultation on two additional property compensation schemes for those affected by Phase One of the high speed rail link, HS2.
• We are now able to provide PDF reference copies of the JCT suite of contracts as part of Practical Law.

Public procurement:

• The ECJ has ruled on references from Italian courts on the:
  • interpretation of the concept of “public works contracts” under the old Public Works Contracts Directive and on the impact of a national court judgment that is incompatible with EU law (Impresa Pizzarotti & C Spa v Commune of Bari); and
  • proportionality of measures to exclude from tender procedures those who have breached obligations relating to social security contributions (Consorzio Stabile Libor Lavori Pubblici v Comune di Milano).
• The Crown Commercial Service has published Procurement policy note 08/14 on the use of pre-qualification questionnaires, accompanied by revised standard PQQ questions.

Regulation and enforcement:

• The government has:
  • proposed a new Data Retention and Investigatory Powers Bill; and
  • published the responses to its consultation on a proposal to use a Legislative Reform Order to make changes to entertainment licensing under the Licensing Act 2003, and laid a draft Order before Parliament.