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:

• Four sets of regulations have been made under the Regulation and Inspection of Social Care (Wales) Act 2016. These cover the information to be kept on the register of social workers and certain social care workers, and the rules establishing registration appeals panels, fitness to practise panels and interim orders panels.
• The Court of Protection has held that
  • a patient had regained capacity to make decisions about his residence and care (A Local Authority and X (No 2 Declaration that X has capacity)); and
  • a dispute as to whether it was in the best interests of an individual to be given clinically assisted nutrition and hydration was one that could be properly determined under section 21A of the Mental Capacity Act 2005 (Briggs v Briggs and others).
• The House of Commons Library has published a briefing paper providing information about the number of carers in the UK and the issues the profession faces. The paper also explains the rights, benefits and support available to carers and government policy on caring.

Central government:

• The Lord Advocate has submitted the Scottish Government’s written case in R (Gina Miller and Deir Tozetti Dos Santos) v The Secretary of State for Exiting the European Union.
• The EU Justice Sub-Committee has opened its inquiry into the consequences for civil justice cooperation of the UK’s departure from the EU, outlining its questions for witnesses, with particular focus on the jurisdiction of the Court of Justice of the European Union.
• The House of Lords Library has published a briefing paper on the United Kingdom leaving the European Union and the future relationship between the UK and the EU.
• The Lord Chief Justice has appeared before the Justice Committee to give evidence relating to his 2016 report to Parliament.

Children’s services:

• The Court of Appeal has held that in circumstances where adverse findings are made against a witness that significantly affect their private and professional lives and they have not been given a proper opportunity to respond before findings are made, they can appeal the specific findings (Re W (A child)).
• The Family Court has taken into account pragmatic reasons for not designating a local authority for an interim care order, where a newborn baby’s parents had moved to another local authority before the birth and considered their new home to be their long-term home (Re A (A Child) (New born baby; designation of local authority)).

Commercial:

• The Court of Appeal has held that, where a contract would otherwise be unenforceable because of failure to agree an essential term, the missing term cannot be implied (Wells v Devani).

Education:

• The Religious Character of Schools (Designation Procedure) (Wales) Regulations 2016 have been made and will come into force on 1 January 2017.
• The Welsh Government has published a consultation seeking views on proposals to revise and consolidate the school governance regulatory framework in Wales.

Employment and pensions:

• The ECJ has followed the Advocate General’s opinion in finding that bank nurses who are members of a German not-for-profit association should be considered “workers” under the Temporary Agency Workers Directive despite not having a contract of employment with the association and not falling under the definition of “worker” under German law (Betriebsrat de Ruhrlandklinik gGmbH v Ruhrlandklinik gGmbH).
• The EAT has decided that an employment tribunal erred when finding that a dismissal for serious allegations of gross misconduct was fair, despite procedural failings (Tykocki v Royal Bournemouth and Christchurch Hospitals NHS Foundation Trust).
• The ECJ has ruled that a claimant had suffered no discrimination on the grounds of sexual orientation or age contrary to the Equal Treatment Framework Directive in determining whether his same-sex partner should be entitled to receive a survivor’s pension from his employer’s scheme on his death (David L Parris v Trinity College Dublin and others).

Environment:

• The Landfill Disposals Tax (Wales) Bill 2016-17 has been laid before the Welsh Assembly.
• The ECJ has provided important clarification of the type of information that relates to emissions to the environment and that should therefore be disclosed under Regulation (EC) No 1367/2006, which applies the Aarhus Convention to EU institutions and to other EU bodies (European Commission v Stichting Greenpeace Nederland and PAN Europe).
• The High Court has given an order requiring the government to publish a new, improved air quality plan, to be sent to the European Commission by 31 July 2017 (ClientEarth (No 2) v Secretary of State for the Environment, Food and Rural Affairs).

FOI and data protection:

• The FTT(IR) has held that the Home Office was permitted to rely on section 36 of the Freedom of Information Act 2000 (prejudice to the effective conduct of public affairs), despite citing this exemption after its initial decision and before its internal review decision, in order to withhold information (Lawrence Serewicz v Information Commissioner and another).
• The ICO has issued a decision notice which found that the public interest weighed in favour of the Department of Health withholding financial information relating to the new NHS junior doctors contract under section 35(1)(a) of the Freedom of Information Act 2000 (formulation or development of policy) (ICO decision notice FS50627749).

Health:

• The Court of Appeal has upheld the High Court’s decision that NHS England has the power to commission anti-retroviral medication known as pre-exposure prophylaxis, for the preventative treatment of HIV (National Aids Trust v National Health Service Commissioning Board (NHS England) and others).

Local government law:

• The House of Commons library has published a briefing paper discussing devolution to local government in England.

Property and planning:

• The High Court has considered the scope and effect of the “presumption in favour of sustainable development” contained in paragraph 14 of the National Planning Policy Framework (East Staffordshire Borough Council v Secretary of State for Communities and Local Government and another).
• The Department for Communities and Local Government has issued draft revised criteria for putting local planning authorities into special measures.
• The Welsh Government has published the ninth edition of Planning Policy Wales.
• The Land Registry has issued its direction detailing how applications for first registration can be made without submitting the original deeds and documents.

Public procurement and state aid:

• The third reading of the Modern Slavery (Transparency in Supply Chains) Bill 2016-17 has taken place in the House of Lords.
• The Advocate General has issued an opinion on tenderers experience and the test for misrepresentation of tender information (Esaprojekt Sp.z o.o. v Wojewodztwo Lodzkie).
• The European Commission has announced that:
  • it has decided under the state aid rules to approve Italian state support to support the shift of freight traffic from road to rail;
  • it has approved aid to alleviate the social and economic impact of closing uncompetitive coal mines in Romania; and
  • it is conducting a review of the Code of Best Practice on the conduct of state aid control proceedings.

Regulation and enforcement:

• The ECJ has held that the fee structure of a local authority’s licence scheme breached Article 13(2) of the Services Directive in that it required applicants to pay up-front fees covering both the costs of the application process and the maintenance of the licence regime (Hemming and others v Westminster City Council).