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 replaced a council as a deputy for a person lacking mental capacity (P) with P’s son despite the son having a potential conflict of interest (Re JW).
• The Welsh Government has issued several sets of statutory guidance and codes of practice under the Social Services and Well-being (Wales) Act 2014.
• The NHS website has been updated to include information about the performance of every care home in England. Care homes have been added to the NHS Choices site, allowing site users to leave ratings and reviews to help other people assess services.

Central government:

• The Cabinet Office has published Public Bodies 2015, the annual update for 2015 of its list of government-sponsored public bodies, and announced its approach to the reform of public bodies from 2015-20.

Children’s services:

• The High Court has dismissed a local authority’s application for care orders on the basis that it had not proved that the threshold criteria had been met, even though the mother had lied about most matters to every professional about why she had taken her children to Turkey (Re X (Children) (No 3)).
• The government has published its response to the special guardianship review. The government will take quick action to improve the assessment process, as well as consider amendments to the legal framework and special guardianship support.

Civil litigation:

• The Supreme Court has held that a refusal by the Crown Court to disclose material heard in camera during a trial to the European Court of Human Rights does not constitute a breach of the court’s domestic or international law obligations (R (Yam) v Central Criminal Court).
• The Court of Appeal has:
  • considered an application for permission to appeal against a costs order which concerned a Part 36 offer (Yentob v MGN Ltd);
  • dismissed an appeal against a trial judge’s finding that observations in an apparently contemporaneous clinical note of a ward round were inaccurate, and the claimant’s discharge from hospital amounted to a breach of duty (Synclair v East Lancashire Hospitals NHS Trust);
  • unanimously dismissed an appeal against a decision of a deputy High Court judge not to recuse herself (Watts v Watts); and
  • decided, in two cases which were purely domestic to the UK, involving only England and Scotland, that the court is not precluded from applying the principle of forum non conveniens (Cook v Virgin Media Limited and McNeil v Tesco Plc).
• The High Court has clarified that an Administrative Court claim that is issued in, or transferred to, a regional Administrative Court office is a case “being dealt with” in the relevant district registry for the purposes of CPR PD 47.4.1 (Public Services Ombudsman for Wales v Heesom).
• The MoJ has published its response to a consultation on possible further increases in court fees that was published on 22 July 2015 and closed on 15 September 2015. Alongside other measures, the MoJ proposes to:
  • retain the maximum fee cap for money claims at £10,000 for the time being; and
  • introduce fees in the First-tier Tribunal (Tax Chamber) and in the Upper Tribunal (Tax and Chancery Chamber).
• The Law Society has repeated its call for explicit statutory protection of legal professional privilege.

Commercial:

• The High Court has held that a council was correct to terminate an outsourcing contract due to its failure to meet key performance indicators (BT Cornwall Ltd v Cornwall Council and others).
• BIS has published for consultation draft statutory guidance on the meaning of significant influence or control in the context of companies and, separately, LLPs.

Education:

• The School and Early Years Finance (England) Regulations 2015 have been made and will come into force on 7 January 2016.
• The DfE has published a consultation on its proposed revisions to guidance for schools on keeping children safe.
• The Welsh Government has published a consultation on amendments to its non-statutory guidance on inclusive education.

Employment and pensions:

• The Exclusivity Terms in Zero Hours Contracts (Redress) Regulations 2015 have been made and will come into force on 11 January 2016.
• The Small Business, Enterprise and Employment Act 2015 (Commencement No 3) Regulations 2015 have been made and brought into force sections 148 and 154-157 of the Small Business, Enterprise and Employment Act 2015 on 1 January 2016.
• The ECJ has considered whether the Equal Treatment (Recast) Directive (2006/54/EC) requires member states to award punitive damages for sex discrimination, or whether this is permitted at the member state’s discretion (Camacho v Securitas Seguridad España SA).
• The EAT has upheld an employment tribunal’s decision that an instruction to an employee not to speak Russian at work was not direct race discrimination or race harassment (Kelly v Covance Laboratories Ltd).
• HM Treasury has published a further consultation on draft regulations allowing for the recovery of exit payments when a high earner returns to the public sector shortly after exit.

Environment:

• The Court of Appeal has determined that a proper construction of section 108(6) of the Environment Act 1995 meant that in every case in which a residential premises was to be searched, at least seven days’ notice must be given before entry, and entry may be effected after the expiry of the notice period only with the consent of an occupier or under the authority of a warrant (Allensway Recycling Ltd and others v Environment Agency).

FOI and data protection:

• The European Parliament and the Council have reached agreement on the EU data protection reform package, concluding trilogue negotiations between the Commission, Parliament and Council and paving the way for formal adoption in early 2016.
• The Permanent Representatives Committee of the Council of the European Union has confirmed agreement with the European Parliament’s Civil Liberties, Justice and Home Affairs Committee on the compromise texts on the General Data Protection Regulation and the Data Protection Directive for the police and criminal justice sector, representing one of the last steps towards formal adoption of the texts.
• The European Data Protection Supervisor has issued an opinion on dissemination and use of intrusive surveillance technologies.

Health:

• The High Court held that a hospital doctor’s decision to place a Do Not Attempt Cardio-Pulmonary Resuscitation notice on the medical records of an adult patient lacking mental capacity (P), without first consulting P’s primary carer, failed to comply with the Mental Capacity Act 2005 requirements for best interests decision-making and so amounted to an unjustified interference with P’s right to respect for private life under Article 8 of the European Convention on Human Rights (Winspear v City Hospitals Sunderland NHS Foundation Trust).

Local government law:

• The Department for Culture Media and Sport has published guidance on the legal duty of local authorities under section 7 of the Public Libraries and Museums Act 1964 to provide a comprehensive and efficient library service.
• The government has published its response to a March 2015 consultation inviting views on legislative proposals to create a proposed single public services ombudsman for England.
• The Local Government Association has published updated guidance on locally set fees.
• The House of Commons Library has published briefing papers on:
  • the assets of community value scheme; and
  • local authority bye-laws in England and Wales.

Property and planning:

• The Planning (Wales) Act 2015 (Commencement No  2 and Transitional and Saving Provisions) Order 2015 has been made and will bring into force certain provisions of the Planning (Wales) Act 2015 in January, March, and April 2016.
• The Court of Appeal has considered whether seeds, seedlings, saplings and potential trees are “trees” for the purpose of a tree preservation order and tree replacement notice under the Town and Country Planning Act 1990 (Distinctive Properties (Ascot) Ltd v Secretary of State for Communities and Local Government and another).
• The High Court has considered whether local councils are under a duty to keep all roads, pavements and footpaths free from moss and algae (Rollinson v Dudley MBC).
• The Minister for Natural Resources has written to the Welsh local planning authorities regarding his expectation for energy policies in local development plans.
• The Land Registry has:
  • published 40 new guides for business customers on how to use the Land Registry portal; and
  • announced a change in its policy in relation to disputed applications.

Public procurement:

• The Public Contracts (Scotland) Regulations 2015 have been published and will come into force on 18 April 2016.
• The High Court has dismissed an action for judicial review of a decision of NHS England not to award an interim contract for medical services. The action was based on an alleged breach of the National Health Service (Procurement, Patient Choice and Competition) (No 2) Regulations 2013 (R (QSRC Limited) v National Health Service Commissioning Board (NHS England) and another).
• The Scottish Court of Session has handed down a ruling in which it held that the award of a call-off contract under a framework agreement was ineffective (Lightways (Contractors) Limited v Inverclyde Council).

Regulation and enforcement:

• Following responses to a Home Office consultation in July 2015 on draft codes of practice under the Proceeds of Crime Act 2002, the four codes of practice have been rewritten.