This is the sixth in our series of quarterly local government update blogs, which will enable readers to catch up on the most important cases, issues or developments in local government since January 2014.
Please feel free to submit a comment below or send us an Ask query if you have any views on the cases, issues, or legal developments covered or if you think we have missed something that should be brought to the attention of local government practitioners.
In this post we look at:
- Cases challenging local authority’s decisions.
- Legislative and other developments of interest to local government lawyers.
CHALLENGES TO LOCAL AUTHORITY DECISION-MAKING
Council acted lawfully in regulating buskers (Keep Streets Alive Campaign Limited v London Borough of Camden)
In this case, the London Borough of Camden successfully resisted a judicial review challenge to its policy to introduce a licensing scheme for certain noisy forms of busking, its policy had been introduced following noise complaints from residents and police concerns over public safety. The High Court was satisfied that the council’s policy was lawful and that, having complied with its statutory obligations under the relevant legislation to obtain evidence of nuisance and interference from a number of sources, it was a matter for the authority’s councillors as to the degree of weight they attached to the complaints that had been received.
Council’s decision to revoke a licence was unlawful as it was taken without due regard to the PSED (Blake and others v London Borough of Waltham Forest)
This case is an interesting addition to the case law on the need for public bodies to have regard to their equality duties when taking decisions about services, given the recent message from the courts that the public sector equality duty (PSED) is not to be used by aggrieved claimants to challenge the merit of a local authority’s decision-making process. In this case, the High Court declared that the council’s decision to revoke a licence for the claimant charity to operate a soup kitchen from a car park in the area was unlawful as it was taken without due regard to the PSED. Although the council had carried out an equality assessment, the assessment was based on a move to an alternative site even though the claimant had stated unambiguously that the service would close when the licence was terminated and it failed to consider the impact of its closure on its service users. The decision is an important reminder for local authorities that the duty to have due regard to the PSED is more than simply a requirement to have general regard.
Care costs capital disregards: local authority applied wrong test to daughter’s occupation of home (R (Walford) v Worcestershire County Council)
This case, which concerned a local authority’s decision not to disregard the value of an individual’s home when assessing whether she should pay for care home fees, is the first time the courts have been asked to interpret the test under the relevant statutory provision. The local authority had looked for evidence that the individual’s daughter occupied the property permanently as her sole residence when considering whether the value would automatically be disregarded in paragraph 2(1) of Schedule 4 to the National Assistance (Assessment of Resources) Regulations 1992. In this context, the High Court held that “home” meant “only or main home” and that the test for occupation as a home was both qualitative and quantitative so that a review of a previous decision should be carried out by the local authority whenever circumstances changed.
Councillor not in breach of public law by speaking in favour of planning application (Bishop Stortford Civic Federation v East Hertfordshire District Council and others)
This case is interesting in that the High Court recognised that individual views expressed by a member of the council’s executive to members of the planning committee, at which a decision was taken to grant planning permission to develop land, did not render the decision unlawful. In dismissing the claimant’s application for judicial review, the High Court held that the member was entitled to attend and address the committee and there was no evidence that his comments had influenced the committee.
Council fails to consult properly over closure of day centre (R (LH) v Shropshire Council)
This case is a reminder for local authorities of the importance of ensuring they conduct proper consultations on proposals to close services and understand their obligations to all individuals affected by their decisions. Even though the council in this case had consulted generally on its plans to reconfigure all its day centres in the area, the council failed to specifically consult with the users of an adult day centre before it closed. That failure rendered the council’s decision unlawful.
Court of Appeal overturns High Court ordinary residence ruling (R (Cornwall Council) v Secretary of State for Health and others)
In this case, the Court of Appeal overturned a decision of the High Court regarding which local authority was responsible for providing care and accommodation under the National Assistance Act 1948 to an individual with physical and learning disabilities, holding that the individual was ordinarily resident in South Gloucestershire where he had lived for 13 years. This amounted to more than temporary residence.
People without capacity cared for in domestic settings were deprived of their liberty (P v Cheshire West and Chester Council)
In this case, the Supreme Court held that three individuals who lacked capacity and were being accommodated by their local authorities had been deprived of their liberty in contravention of the Mental Capacity Act 2005, even though the individuals enjoyed lives outside their placements and seemed to be content with their situations.
The case was important as it meant that the individuals were entitled to the protection afforded to them by the Mental Capacity Act 2005, which requires, among other things, a periodic review to ensure the deprivation of liberty remains in the individual’s best interests.
Council liable for damages following unjustifiable live animal export ban (Barco De Vapor BV & Others (t/a Joint Carrier) v Thanet District Council)
In this case, the High Court held that the district council was liable to pay damages (to be decided following an inquiry) to animal exporters following a ban on the export of live animals from Ramsgate Port. The council had wrongly used its powers to regulate harbour safety at the port to impose the ban, which breached EU laws prohibiting the freedom of exports between member states.
Challenge to local authority’s decision as to how it should respond to LGO’s remedial action recommendations dismissed (R (Nestwood Homes Developments Limited) v South Holland District Council  EWHC 863)
In this case, the High Court rejected a challenge to the council’s decision that it pay compensation of £50,000 (instead of the £250,000 recommended by the Local Government Ombudsman) to a housing developer on the basis that the authority was entitled to take into account issues such as affordability and the financial impact of making a payment in line with the LGO’s recommendation.
LEGISLATIVE AND OTHER DEVELOPMENTS OF INTEREST
Anti-social Behaviour, Crime and Policing Act 2014
Having received Royal Assent on 13 March 2014, the Anti-social Behaviour, Crime and Policing Act 2014 (Commencement No 2) Order was made, which will bring into force on 13 May 2014 those provisions of the Act relating to discretionary grounds for ordering possession of secure and assured tenancies and community remedies and complaints about anti-social behaviour.
Local Audit and Accountability Act 2014
Two commencement orders have been made in relation to the Act. The Local Audit and Accountability Act 2014 (Commencement No 1) Order 2014 includes sections that amend Schedule 12 to the Local Government Act 1972 regarding polls in parish council meetings and provide the power to require “smaller authorities” to publish information under section 2 of the Local Government, Planning and Land Act 1980. The Local Audit and Accountability Act 2014 (Commencement No 2) Order 2014 has brought into force section 19 and Schedule 6 (plus related parts) of the Act which require the Comptroller and Auditor General to prepare codes of audit practice that prescribe the way in which local auditors are to carry out their auditing of local authorities under the Act.
Following the government’s response to the consultation on proposed draft secondary legislation to give effect to the Act’s provisions and the publication of a draft transparency code for parish councils with a turnover not exceeding £25,000 (see Legal update, DCLG publishes response to consultation on draft secondary legislation to give effect to provisions of Local Audit and Accountability Act 2014 and consults parish councils on a draft transparency code), the draft openness of Local Government Bodies Regulations 2014 have been published. These allow the public to report on meetings of local government bodies, their committees and sub-committees, by filming, photographing, audio recording or any other means, which is line with the public’s current right to report on meetings of a council’s executive, and reinforce the fact that the public have the right to use social media to report on local government meetings, and may provide written commentaries during a meeting and oral commentaries outside it.
On 21 March 2014, the Local Government Association announced that it had been appointed by DCLG to create a new independent transitional company to manage the Audit Commission’s audit contracts when the Commission closes at the end of March 2015.
Order making consequential amendments to the Localism Act 2011
On 24 February 2014, the Localism Act 2011 (Consequential Amendments) Order 2014 was made which reflects the changes introduced by the Localism Act 2011 to the Local Government Finance Act 1992 and the Greater London Authority Act 1999. The changes introduced a system under which billing authorities, major precepting authorities and local precepting authorities in England must have “excessive” council tax increases approved by a local referendum.
Regulations made amending standing orders in England
On 25 February 2014, the Local Authorities (Standing Orders) (England) (Amendment) Regulations 2014 came into force. These amend the Local Authorities (Standing Orders) (England) Regulations so there is now a requirement to record the names of those members who voted for and against any decisions on the council’s budget.
On 30 January 2014, the Department for Communities and Local Government (DCLG) published guidance for local authorities on the statutory and policy criteria that they must meet in order to obtain the consent of the Secretary of State to dispose of allotment land.
Exercise of Secretary of State’s powers under section 5 of the Localism Act 2011
On 3 March 2014, the Secretary of State for Communities and Local Government confirmed that he intended to exercise his powers under section 5 of the Localism Act 2011 to temporarily disapply legislation which prevented Harrogate Borough Council from using the general power of competence to host part of the Tour de France. This is the first time that thesepowers have been exercised.
Personal alcohol licences
On 24 March 2014, the Home Office announced that, following its consultation on proposals to do so, it would not be abolishing personal alcohol licences.
Local Authority Publicity Code
On 25 March 2014, the Department for Communities and Local Government (DCLG) wrote to all local authority chief executives in England informing them how the Secretary of State proposes to exercise his new power to direct local authorities to comply with the Code of Recommended Practice on Local Authority Publicity.
Contracting out (Local Authorities Social Services Functions) (England) Order 2014
This Order, which came into force on 1 April 2014, enables local authorities in England to contract out those social services functions that are listed to another person, or employees of another person.
Cost benefit analysis guidance
On 2 April 2014, HM Treasury and six other government departments published cost benefit analysis guidance, Supporting public service transformation, which is intended to provide uniform principles by which local partnerships can assess the costs and benefits of proposals for the transformation of public services.
Regulations governing the Local Authorities Conduct of Referendums
Two sets of draft regulations were made on 3 April 2014 which make changes to the administration of referendums on local authority governance and increases in council tax charges.
General consents under section 25 of the Local Government Act 1988
On 7 April 2014, the DCLG published its response to its consultation on the general consents issued under section 25 of the Local Government Act 1988, which concerned the proposal to revise the general consents of the Secretary of State under section 25 of the LGA 1988). The general consents allow local housing authorities to provide financial assistance in connection with privately-let housing accommodation in particular circumstances, without having to seek specific consent from the Secretary of State to do so.
Guidance on conduct in relation to local authority elections
On 9 April 2014, the government published guidance on the conduct of civil servants in the run up to the European Parliament and local elections (including mayoral elections in some London boroughs) taking place on 22 May 2014.