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 email.

Adult social services:

• The Court of Protection has held that:
  • a local authority breached a mentally incapacitated person’s rights under Article 5 of the ECHR, and the deprivation of liberty safeguards, by appointing a relevant person’s representative who did not challenge her detention in a care home against her wishes, and by failing to take steps to ensure her independent mental capacity advocate issued proceedings (AJ v A Local Authority); and
  • an elderly lady (L) who suffered from dementia was not being deprived of her liberty in spite of various restrictions placed on her movements. If there had been a deprivation of liberty, it could not be imputed to the local authority, due to the proactive role played by L’s family in making arrangements for her care (W City Council v Mrs L).

Central government:

• The Office of Rail Regulation has issued a press release stating that it will be re-named the Office of Rail and Road, to reflect its new responsibilities for monitoring the efficiency and performance of England’s strategic road network from 1 April 2015.

Civil litigation:

• The Court of Appeal has confirmed that local authorities can benefit from the environmental protective costs orders regime set out in Rule 45 of the Civil Procedure Rules and Practice Direction 45 (R (HS2 Action Alliance and another) v Secretary of State for Transport and another).
• The High Court has:
  • considered an application for an extended civil restraint order (CRO) and the issue of whether it should consider all applications without merit or just those since the expiry of the previous CRO (The Society of Lloyd’s v Noel); and
  • dismissed a claimant’s application for an order under CPR 32.1 (power to control evidence) and CPR 33.4 (power to call witness for cross-examination on hearsay evidence), reasoning that even though hearsay notices had been served, if the defendant wished to rely on the hearsay evidence of some of his overseas witnesses, they had to be called as witnesses at trial and make themselves available for cross-examination (National Crime Agency v Azam).
• The Solicitors Regulation Authority has published a report discussing the differing duties owed in litigation and examining the ways in which misconduct may arise.

Commercial:

• BIS has published a written statement setting out the government’s plans for implementing clause 3 (Companies: Duty to Publish Report on Payment Practices) of the Small Business, Enterprise and Employment Bill 2014-15.

Education and social services:

• The Non-Maintained Special Schools (England) Regulations 2015, which deal with the approval of non-maintained special schools by the Secretary of State, have been made and will come into force on 1 September 2015.
• The High Court has granted a county council an injunction following an alleged breach of confidence by an individual who published information on a website regarding details of the current 11 Plus exam taken by pupils seeking to apply to grammar schools in the county (Warwickshire County Council v Matalia).
• The Legal Aid, Community Legal Service and Criminal Defence Service (Amendment) Regulations 2015, which amend previous legal aid regulations, have been made and partially came into force on 24 March 2015. The remainder will come into force on 13 April 2015.
• The High Court has:
  • provided both an interpretation of “integration” when considering a child’s habitual residence, and clarification on when a young child’s habitual residence may diverge from their parent (SR (A Child: habitual residence) (Rev 1)); and
  • refused an adoption application where the person being adopted was an 18 year old adult and the sole benefit of adoption for the young adult was that he would gain British citizenship (FAS v Bradford Metropolitan District Council).
• The Department for Education and the Department of Health have jointly published statutory guidance on promoting the health and well-being of looked after children.
• The Vulnerable Witnesses and Children Working Group has published its final report. The report sets out reforms to current guidelines relating to judges meeting with children who are subject to family proceedings and children giving evidence in family proceedings.

Employment and pensions:

• The Supreme Court has held that an employer breached a deceased employee’s contract by failing to pay a death-in-service benefit to his widow (Braganza v BP Shipping Ltd and another).
• The Advocate General has given her opinion on whether the concept of discrimination by association can be extended from direct discrimination to indirect discrimination (Chez Razpredelenie Bulgaria).
• BIS has published whistleblowing guidance for employers and prescribed persons, which is intended to help employers understand the law relating to whistleblowing, understand how to put whistleblowing policies in place, and bring them to the attention of staff.
• The government has published its response to the recommendations of the Low Pay Commission on increases to the national minimum wage. With the exception of the apprenticeship rate, the government has accepted the recommendations, which will come into effect from 1 October 2015.

Environment:

• HMRC has launched a consultation on its proposals to reform the Landfill Communities Fund, which uses funds generated from landfill tax credits.
• The DECC has published responses to:
  • a consultation carried out in November 2014 on the transferability of building-mounted solar photovoltaic installations under the feed-in tariffs regime; and
  • a discussion paper and call for evidence on its proposed approach to the 2016 review of targets for climate change agreements.
• The government has announced that responsibility for enforcement of the waste electrical and electronic equipment, waste batteries and end-of-life vehicles regimes will transfer from the Vehicle Certification Authority to the National Measurement Office on 1 April 2015.

FOI and data protection:

• The Legal Aid, Sentencing and Punishment of Offenders Act 2012 (Commencement No 11) Order 2015 has brought into force provisions of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 which remove the cap on fines in magistrates’ courts for many offences, including offences under the Data Protection Act 1998.
• The Home Office has published a code of practice for local authorities on data sharing for the prevention of fraud.
• The ICO has published a report and guidance on transparency in government outsourcing, identifying four steps to greater transparency in outsourcing.

Health:

• Monitor has published its decisions to accept undertakings from two clinical commissioning groups to remedy its findings that they have breached obligations to ensure patient choice.

Housing:

• The government has published a summary of responses and its own response to its consultation on changes to the Local Authorities (Capital Finance and Accounting) (England) Regulations 2003 in relation to the use of capital receipts.

Human rights:

• The Supreme Court has dismissed two appeals against a Court of Appeal decision, and held that the Benefit Cap (Housing Benefit) Regulations 2012 (as amended) were not incompatible with Article 14 of the ECHR, but had breached Article 3(1) of the UN Convention on Rights of the Child (R(SG and others) v Secretary of State for Work and Pensions).

Local government:

• The NAO has published its Code of Audit Practice. The Code sets out the responsibilities of local auditors under the Local Audit and Accountability Act 2014, which provided for the abolition of the Audit Commission and the introduction of new arrangements for the audit of local public bodies, including local authorities and NHS foundation trusts.
• The National Assembly for Wales has passed the Well-being of Future Generations (Wales) Bill.

Property and planning:

• The Community Infrastructure Levy (Amendment) Regulations 2015 have been made and will come into force on 1 April 2015.
• The Infrastructure Act 2015 (Commencement No 2 and Transitional Provisions) Regulations 2015 brought into force certain provisions of the Infrastructure Act 2015 relating to development consent orders for nationally significant infrastructure projects on 18 March 2015.
• The Planning (Hazardous Substances) Regulations 2015 were made on 18 March 2015 and will come into force on 1 June 2015. The DCLG has also published the government response to its consultation on implementing the land use planning requirements of the Seveso III Directive 2012.
• The National Park Authorities (England) Order 2015 has been laid before Parliament and will come into force on 1 July 2015.
• The draft Town and Country Planning (Fees for Applications, Deemed Applications, Requests and Site Visits) (England) (Amendment) Regulations 2015 have been published and laid before Parliament.
• The Supreme Court has considered whether maps accompanying applications to modify a definitive map and statement of public rights of way complied with the statutory requirements (R (Trail Riders Fellowship and another) v Dorset County Council).
• The DCLG has launched a consultation into improving the compulsory purchase regime. The DCLG has also published draft updated guidance on compulsory purchase and the Crichel Downs Rules.
• The government has published updated plans to protect land required for the new proposed route for the Crossrail 2 project from conflicting development.
• From 23 March 2015, the Land Registry will include information relating to the floor level for leases of part of a building in entry number one in the property register of leasehold titles.
• The Association for Consulting and Engineering has published the ACE Short Form Agreement 2015.

Public procurement:

• The General Court has:
  • dismissed an appeal by a tenderer against a decision of the Delegation of the European Union to the Republic of Serbia rejecting a submitted tender in response to the call for tenders for the supply of a rabies vaccine to the Serbian Ministry of Agriculture, Forestry and Water Supply (IDT Biologika v European Commission); and
  • annulled certain decisions taken by the European Aviation Safety Agency in the context of its evaluation of tenders for the supply of IT services (Evropaïki Dynamiki – Proigmena Systimata Tilepikoinonion Pliroforikis kai Tilematikis AE v European Aviation Safety Agency).
• BIS has announced a new policy whereby bidders for major government infrastructure projects will be required to provide evidence of their commitment to developing the skills of their work force.

Regulation and enforcement:

• The government has announced that it has completed its review and reform of health and safety legislation in the UK, and published its final report.
• The CMA has published an open letter and 60-second guide advising retailers on the potential competition law risks of signing up to a local high-strength alcohol scheme.