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.

Central government:

• The House of Commons Library has published a briefing paper on the second round of Article 50 negotiations, which were held from 17 to 20 July 2017.

Children’s services:

• The High Court has:
  • clarified that the court will only entertain a very late challenge to viability assessments, or the identification of potential carers, “if there is exceptionally good reason” for the delay and the assessment will not adversely affect the timetable for making a final decision about the children’s future (Re L and others (Children: care proceedings)); and
  • described the lack of provision for low secure mental health unit placements for adolescents as both outrageous and disgraceful (Re X (A Child) (No 3)).

Civil litigation:

• The High Court has considered whether a reduction, at detailed assessment, in the hourly rates claimed for the claimant’s incurred costs, was a “good reason” to depart from the costs budget under CPR 3.18 (RNB v London Borough of Newham).
• The Senior Courts Costs Office has considered a number of challenges regarding solicitor/client costs, namely: (i) whether particular work was recoverable in principle, (ii) how section 70(9) of the Solicitors Act should be applied and (iii) whether costs should be capped because of various estimates given by the defendant law firm (Breyer Group plc and others v Prospect Law Ltd).

Employment and pensions:

• The Court of Appeal has held that in cases where psychiatric injury is alleged to have been caused by an employer’s wrongdoing, a tribunal needs to examine whether there is a rational basis on which the harm suffered can be apportioned between a part caused by the employer’s wrong and a part which was not so caused (BAE Systems (Operations) Ltd v Konczak).
• The Advocate General has given an opinion that the definition of “working time” in the Working Time Directive (2003/88/EC) should not be interpreted to automatically include time spent on “stand-by” duty, during which workers must be readily available to perform duties for their employer within a short period of time but need not be present at their workplace (Ville de Nivelles v Matzak).
• The EAT has:
  • decided that no indirect discrimination occurred when a prison disciplined a prison chapel volunteer for quoting Bible passages that had caused offense to some people in the congregation (Trayhorn v The Secretary of State for Justice);
  • further clarified the law on holiday pay following the Lock/Williams line of cases, and held that voluntary overtime pay, out-of-hours standby payments and call-out payments should be included in pay for the four weeks’ leave under regulation 13 of the Working Time Regulations 1998 (Dudley Metropolitan Borough Council v Willetts and others); and
  • held that while it is not expressly provided for by the Employment Tribunals Act 1996 or the Employment Tribunal Rules of Procedure, employment tribunals have the power as part of case management to appoint a litigation friend for a party that lacks capacity to conduct proceedings (Jhuti v Royal Mail Group Ltd and others).
• Minutes of the North West region employment tribunal user group have been published following meetings in June 2017.

Environment:

• The Department for Environment, Food & Rural Affairs, the Department for Transport and the devolved administrations have published the final UK Air Quality Plan for tackling nitrogen dioxide.
• The Environment Agency has announced that a waste company, one of its directors and a tenant farmer have been fined a total of £19,430 in the Magistrates’ Court after pleading guilty to breaches of the Environmental Permitting (England and Wales) Regulations 2016.

FOI and data protection:

• The FTT(IR) has held that:
  • the BBC was entitled to refuse a request for an internal report concerning its coverage of the UK’s vote to leave the EU, on the basis that it was held for the purposes of journalism and did not engage the Freedom of Information Act 2000 (Bradshaw v Information Commissioner); and
  • the West London Mental Health NHS Trust was required to confirm or deny whether it held information concerning the death of a former patient at Broadmoor Hospital, and could not rely on the exemptions in sections 40(5)(b)(i) and 41(2) of the Freedom of Information Act 2000 (personal information and information provided in confidence, respectively) (Christopher Phillips v Information Commissioner).

Housing:

• The High Court has made an outright possession order under the Housing Act 1988 and an unlawful profit order in favour of a private registered provider of social housing following unlawful sub-letting under an assured tenancy (Poplar Housing and Regeneration Community Association Limited v Begum and another).

Local government law:

• The High Court has held that Wandsworth Borough Council did not have the power to dispose of a building on Wandsworth Common by granting a 15 year lease to a limited company intending to operate a private nursery at the premises (Muir v Wandsworth Borough Council).
• The Local Government and Social Care Ombudsman has published details of the complaints that it has received about all local councils in England in 2016-17.

Property and planning:

• The Department for Communities and Local Government has:
  • published guidance on brownfield registers;
  • published guidance on permission in principle;
  • updated its practice guidance, When is permission required; and
  • published a summary of responses to its consultation Planning and Affordable Housing for Build to Rent.

Public procurement and state aid:

• The European Commission has announced that:
  • it has decided under the state aid rules to approve a Dutch aid scheme of up to EUR10 million for new air routes to the region of Limburg in the Netherlands; and
  • it has decided that a Dutch state guarantee to finance shipping companies involves no state aid.