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 held that a personal injury award did not alter a respondent’s statutory right to local authority after-care under section 117 of the Mental Health Act 1983 (Tinsley v Manchester City Council and others).

Central government:

• The government has responded to the report of the House of Lords European Union Committee on Brexit: the EU data protection package.
• The House of Commons Procedure Committee (committee) has published an interim report on scrutiny of delegated legislation under the European Union (Withdrawal) Bill 2017-19.

Children’s services:

• The High Court has reminded practitioners that an adoption order can only be revoked under the inherent jurisdiction of the High Court or by appeal to the Court of Appeal (Re J (A Minor) (Revocation of Adoption Order)).
• The Association of Lawyers for Children has released the submissions they were invited to make in 2016 by HHJ Bellamy on the use of covert recordings in Family Court proceedings, to assist the multi-disciplinary review currently being undertaken by the Family Justice Council.

Civil litigation:

• The Court of Appeal has:
  • confirmed that an application for judicial review is effectively made when the papers have been lodged. Further, when a claim is settled at the first hearing and it is not possible to form a view on how the proceedings would have been resolved, there should be no order as to costs (R (Agyemang) v London Borough of Haringey); and
  • upheld the High Court’s decision to refuse permission for judicial review of HMRC’s issue of a charging notice for the Diverted Profits Tax (R (Glencore Energy UK Limited) v HMRC).
• The High Court has refused permission to appeal a decision where the appeal was limited to an academic question and the only possible effect of the outcome of the appeal was in relation to previous costs orders (Christodoulides v Marcou).
• The government has announced that the UK’s first Courts & Tribunals Service Centres will be launched in Birmingham and Stoke-on-Trent.
• HM Courts and Tribunals Service has published a guidance note on orders in the Business and Property Courts in Leeds.
• The Courts and Tribunals Judiciary has detailed proposals for a mandatory disclosure pilot scheme to run for two years in the Business and Property Courts with a view to achieving a wholesale cultural change in the disclosure process.
• HM Courts and Tribunals Service has announced that over the next year, it will be hosting a number of roadshows to engage with and gain feedback from legal professionals on the courts and tribunals modernisation programme.

Employment and pensions:

• The Supreme Court has:
  • held that an employment tribunal was right to conclude that it had jurisdiction to deal with a doctor’s complaints of discrimination against the General Medical Council concerning the way it had pursued fitness to practise proceedings against her (Michalak v General Medical Council and others); and
  • considered whether a police misconduct panel has judicial immunity against a discrimination claim by a police officer (P v Commissioner of Police of the Metropolis).
• The EAT has held that the protection from being refused employment due to trade union membership in section 137 of the Trade Union and Labour Relations (Consolidation) Act 1992 extends to trade union activities that are incidental to membership (Jet2.com Ltd v Denby).
• The High Court has allowed an appeal against an award of £500 by the Deputy Pensions Ombudsman for non-financial loss caused by maladministration, holding that in the circumstances, the Ombudsman’s award resulted from an error of fact and/or principle (Smith v Sheffield Teaching Hospitals NHS Foundation Trust).
• The Pensions Ombudsman upheld a member’s complaint where the member had been permitted to re-join the NHS scheme in 2006 and make pensions contributions as though she were a member, when she was not in fact eligible to have re-joined. The scheme administrator failed to realise the member’s ineligibility until 2014 and missed numerous opportunities to do so (Determination in a complaint by Dr O).

Environment:

• The Environmental Offences (Fixed Penalties) (England) Regulations 2017 will come mainly into force on 1 April 2018. The regulations increase fixed penalty ranges and minimums for certain environmental offences in England.

FOI and data protection:

• The Information Commissioner’s Office has launched a new advice service to help small organisations prepare for the EU General Data Protection Regulation.

Health:

• A consolidated set of Court of Protection rules, the Court of Protection Rules 2017, will come into force on 1 December 2017. The rules, setting out the practice and procedure in the Court of Protection, replace the existing rules and amendments to them, and introduce several new rules.

Housing:

• The draft Tenant Fees Bill has been introduced in Parliament. Amongst the provisions contained in the draft Bill, the government is seeking to introduce provisions to ban landlords and their agents in England from requiring tenants and licensees in the private rented sector to pay fees or other charges on top of the rent as a condition of, or as part of making arrangements for, the grant, renewal or continuance of a tenancy.
• The Housing and Planning Act 2016 (Commencement No 6) Regulations 2017 have been made, bringing a number of provisions concerning banning orders into force on 3 November 2017.
• The Department for Communities and Local Government has published a consultation on proposals to introduce mandatory client money protection schemes for letting and managing property agents in England.

Local government law:

• The Department for Communities and Local Government has published a review of Local Enterprise Partnership governance and transparency.
• The Secretary of State for Communities and Local Government has issued directions to two local authorities regarding the frequency of publication of council newspapers.

Property and planning:

• The Court of Appeal has confirmed that the requirement in section 111 of the Housing Grants, Construction and Regeneration Act 1996 to give a pay less notice applies to any payment arising under a construction contract, whether interim or final, and even if the final payment arises following completion or termination of the contract (Adam Architecture Ltd v Halsbury Homes Ltd).
• The High Court has held that the concept of openness in the greenbelt is not confined to the visual impact arising from the building itself (Smith v Secretary of State for Communities and Local Government).
• The TCC has granted a declaration that a contractor ought to have been given the opportunity to remedy its breach before its employment was terminated (Interserve Construction Ltd v Hitachi Zosen Inova AG).

Public procurement:

• In a Norwegian procurement dispute, the European Free Trade Association Court has held that the award of damages (according to Article 2(1)(c) of Directive 89/665/EEC) did not depend on whether the breach of public procurement law was due to culpability and conduct deviating markedly from a justifiable course of action, or whether it occurred on the basis of a material error or whether it was attributable to the existence of a material, gross and obvious error (Fosen-Linjen AS and AtB AS).

Regulation and enforcement:

• The House of Commons Science and Technology Select Committee has opened an inquiry into the health impact and regulation of e-cigarettes.
• The Investigatory Powers Commissioner has announced the appointment of 13 Judicial Commissioners.