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 Appeal has upheld two appeals, heard jointly, of decisions of the Upper Tribunal (UT) concerning the application and discharge of restriction orders and community treatment orders under the Mental Health Act 1983. The UT’s judgments related, respectively, to earlier decisions of the First-tier Tribunal and the Mental Health Review Tribunal for Wales (Secretary of State for Justice v MM, Welsh Ministers v PJ).
• The First-tier Tribunal has confirmed the decision of the Care Quality Commission to cancel a care home’s registration due to lack of employees, lack of training and inadequate recruitment procedures, amongst other failures (Oakendale Residential Care Home v Care Quality Commission).
• The Local Government Association has published a paper for local authorities on how to make the best use of scarce resources in adult social care.

Central government:

• The Law Commission has published an update on its consultation regarding its 13th programme of law reform.

Children’s services:

• The Court of Appeal has clarified that the National Probation Service has the power to impose licence conditions that restrict contact between a parent and their children (R (ZX) v Secretary of State for Justice).
• The High Court has:
  • exercised its inherent jurisdiction to order the local authority to arrange a deceased child’s burial arrangements when the parents had taken no action to do so despite the court’s encouragement (Re K (A Child: deceased));
  • dispensed with the service of care proceedings on the mother of the child who was the subject of those proceedings. The “very high degree of exceptionality” test was met due to the grave danger of physical harm to the mother if the court tried to trace her (Hillingdon Council v SM and others); and
  • quashed and declared unlawful a decision to place a child for adoption because the local authority expedited the process when it became aware that the mother intended to apply for leave to revoke the placement order (R (EL) v Essex County Council and another).
• The Family Court has concluded that the prohibition under section 28 of the Adoption and Children Act 2002 to not cause a child placed for adoption to be known by a new surname included both a formal and informal change of surname (Re R and E (children)).

Civil litigation:

• The Scottish Civil Justice Council is undertaking a comprehensive review of Scotland’s civil procedure rules to reshape the form and structure of the rules.

Commercial:

• The Joint Contracts Tribunal has announced that it is publishing the final tranche of its 2016 Edition standard form contracts “for despatch on 30 June 2017”.

Employment and pensions:

• The EAT has refused to exercise its discretion to extend the 42-day time limit for lodging an appeal to the EAT where an appeal was lodged one hour late, at 5.00 pm on the relevant day. Following guidance contained in existing authorities, the EAT held that no good excuse for delay had been shown (J v K and another).
• The Pensions Ombudsman held that a local authority was not entitled to withhold a member’s LGPS pension benefits to recover debts owed where that member had fraudulently transferred £448,207 from one of the authority’s bank accounts to his own (Determination in a complaint by Mr A).

FOI and data protection:

• The Digital Economy Act 2017, which received Royal Assent on 27 April 2017, has been published.
• The ECJ has given its preliminary ruling to the Latvian Supreme Court on the interpretation of the legitimate interests condition, set out in Article 7(f) of the Data Protection Directive, in the context of data processing by a public authority (Valsts policijas Rīgas reģiona pārvaldes Kārtības policijas pārvalde v Rīgas pašvaldības SIA ‘Rīgas satiksme’).
• The Information Commissioner’s Office has issued a communications company with a monetary penalty of £400,000 under the Data Protection Act 1998 for a serious contravention of regulation 19 of the Privacy and Electronic Communications Regulations 2003.

Housing:

• The Supreme Court has dismissed an appeal against a decision by a reviewing officer that a final offer of property was suitable for the applicant and it was not unreasonable for her to accept that offer (Poshteh v Royal Borough of Kensington and Chelsea).

Property and planning:

• The Listed Buildings (Review of Listing Decisions) (Wales) Regulations 2017 have been made and will come into force in Wales on 31 May 2017.
• The Historic Environment (Wales) Act 2016 (Commencement No 1 and Transitional Provisions) Order 2017 has been made and brings various provisions of the Historic Environment (Wales) Act 2016 into force on several dates in May 2017.
• The Listed Buildings (Urgent Works) (Interest Rate on Expenses) (Wales) Order 2017 has been made and will come into force on 31 May 2017.
• The Planning (Listed Buildings and Conservation Areas) (Wales) (Amendment No 2) Regulations 2017 have been made and will come into force in Wales on 31 May 2017 and 1 September 2017.
• The Supreme Court has considered the meaning and application of government policy contained in paragraphs 14 and 49 of the National Planning Policy Framework (Suffolk Coastal District Council v Hopkins Homes Ltd and another).
• The Upper Tribunal (Lands Chamber) has applied the principles laid down by the Supreme Court in Woolway v Mazars to find that two properties separated by a lane were a single hereditament (Harding and another v Secretary of State for Transport).
• The Upper Tribunal (Tax and Chancery) has considered whether a person claiming adverse possession of part of the Thames river bed had demonstrated sufficient intention to possess (Port of London Authority v Mendoza).
• The Welsh chief planner has written to all heads of planning in Wales to advise them on legislation and guidance that came into force on 5 May 2017.

Public procurement:

• The ECJ has handed down a judgment on a request for a preliminary ruling from a Polish court regarding the interpretation of the principle of equality of treatment as between tenderers under EU and Polish procurement legislation (Archus sp. z o.o. and Gama Jacek Lipik v Polskie Górnictwo Naftowe i Gazownictwo S.A.).
• The General Court has published an order in an appeal by Greece against a European Commission decision of 2016 that rejected the University of Thessaloniki’s bid in a public procurement award procedure (Aristoteleio Panepistimio Thessalonikis v European Commission).
• The Advocate General has issued an opinion proposing that a tenderer can be excluded where a member of its bidding consortium loses its accreditation (Casertana Costruzioni Srl v Ministero delle Infrastrutture e dei Trasporti — Provveditorato Interregionale per le opere pubbliche della Campania e del Molise Azienda Regionale Campana per la Difesa del Suolo — A.R.CA.DI.S and others (AG’s Opinion).