This is the latest 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 from July to September 2017.
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 of interest to local authorities.
- Government guidance and publications of interest to local authority lawyers.
- Local Government & Social Care Ombudsman decisions and publications.
- Other publications of interest.
- House of Commons Library briefing papers.
- Featured Ask queries.
CASES OF INTEREST TO LOCAL AUTHORITIES
Supreme Court holds that council can recover enforcement segment of its historic licensing application fees (R (Hemming) v Westminster City Council)
The Supreme Court (SC) has held that Westminster City Council (council) can recover the enforcement portion of its licence application fee for local sex shops.
The council was the licensing authority for local sex shops, of which the respondent (H) was a licensee. The council charged prospective licensees a fee that incorporated the cost of both the processing of the application (part 1) (non-refundable) and managing and enforcing the licensing regime (part 2) (refundable to unsuccessful applicants). In 2011-12, part 1 fees were £2,667 and part 2 fees £26,435.
In November 2016, the CJEU held that the council had unlawfully breached Article 13(2) of the Services Directive (2006/123/EC) by charging part 2 fees on application, but not by charging successful applicants upon the granting of their application (see Legal update, Services Directive prohibits up-front charge for maintenance of licensing regime costs as part of licence application fee (CJEU)).
In view of the CJEU’s decision, the SC considered that the council’s scheme was only defective in respect of the part 2 payment being required “up front” but that it was entitled to charge a reasonable part 2 fee “unconditionally” to successful applicants. H was, therefore, required to repay the enforcement fees to the council, which it had refunded to H after the Court of Appeal’s finding that enforcement activities could not be funded by the licence fee (overturned by the SC in 2015). The case has been remitted to the Administrative Court for determination of whether the council’s part 2 fees had been reasonable.
High Court confirms that onus to provide information in council tax reduction claims is on party who has knowledge or access to information in support of claim (Francois v London Borough of Waltham Forest)
The High Court has dismissed an appeal against a Valuation Tribunal for England finding, which had concluded that the London Borough of Waltham Forest was entitled to refuse to allow a council tax reduction in the case of the appellant.
High Court holds that council’s decision to lease open space land to limited company for private use was unlawful (Muir v Wandsworth Borough Council)
The High Court has held that Wandsworth Borough Council (council) did not have the power to dispose of a building on Wandsworth Common (common) by granting a 15 year lease to a limited company intending to operate a private nursery at the premises.
The Court found that the disposal was contrary to the statutory trust arising under section 10 of the Open Spaces Act 1906 (OSA 1906), pursuant to which the common is held on trust for the use and enjoyment of all local inhabitants.
The Court accepted that article 11 of the Schedule to the Ministry of Housing and Local Government Provisional Order Confirmation (Greater London Parks and Open Spaces) Act 1967 (referred to in the judgment as the 1967 Order) permits the exercise by a local authority, of powers in relation to open spaces including powers to provide facilities for public recreation, grant licences to provide facilities and let land and buildings for public recreation, restrict public rights of access, and charge for the use of open space land under articles 7 to 10 of the 1967 Order notwithstanding the provisions of the OSA 1906. However, this did not assist the council because the restrictions on access to and use of the premises leased to the nursery would also be contrary to the intended purpose of the scope of articles 7 and 8 of the 1967 Order, which is to provide facilities for public recreation.
The case provides useful guidance to local authorities on the scope of the restrictions that apply to disposal of open space land.
Local authority held to have breached child’s A2P1 right to education where Nzolameso duty applied (High Court) (R (E) v London Borough of Islington)
The High Court has held that the London Borough of Islington (local authority) has breached a child’s (E) right to education under Article 2 of the First Protocol of the European Convention on Human Rights (A2P1), and made unlawful needs and care assessments of E.
Due to transitional social housing arrangements made by the council, E, who was of school-age, received educational arrangements for only 50% of term-time in the relevant school year. This included a period in which her family was transferred to another borough in order to receive accommodation on a temporary basis. The notice of transfer from the council made no mention of educational arrangements.
The court found that her A2P1 right had been violated on account of LBI’s failure to make any or effective arrangements for her education. The local authority had failed to discharge or satisfy its duty when it made arrangements for her family’s transfer, and liability did not rest with the other borough. It was also found to have conducted unlawful care and needs assessments of E under the Children Act 1989 and the Care Act 2014.
The court provided important commentary as to where a breach of A2P1 can occur through a local education authority’s omission, and applied the duties established in Nzolameso v City of Westminster  UKSC 22 to those under the Children Act 2004. It held, therefore, that a local authority’s duties in this respect require it to:
- Be satisfied that the “receiving authority” has satisfactory educational arrangements in place.
- Continue to be assured of this.
A local authority could only do so by making effective communication with the receiving authority, and not by “the mere fact of a temporary transfer”.
Council’s preliminary investigation into member’s alleged misconduct and publication of investigation reports not unlawful (High Court) (Hussain v Metropolitan Borough Council)
The High Court has rejected a judicial review claim brought by an elected member of Sandwell Metropolitan Council (council), who argued that the council did not have power to conduct an initial “pre-formal” investigation into his alleged misconduct, or to investigate under the Localism Act 2011 (LA 2011), any misconduct that had occurred prior to the coming into force of the LA 2011 in July 2012.
The court held that there was ample power for the council to conduct the initial pre-formal investigation in both the Local Government Act 1972 (LGA 1972) and the LA 2011 and that there was nothing in the statutory language or in any admissible pre-legislative material to support the conclusion that the council was prevented from investigating the claimant’s misconduct under the LA 2011. Even if there was no express power under the specific provisions in LA 2011, the council was not barred from conducting investigations under other more general powers in the LA 2011 or the Local Government Act 1972, or from using the investigatory machinery that it had put in place under the LA 2011 for that purpose.
The court also held that council’s decision to publish the report of an external solicitor instructed by the council to investigate the allegation, counsel’s opinion relating to the merits of the investigation and the investigation report of the council’s audit committee did not breach the Data Protection Act 1998 given the council’s obligations under sections 27 and 28 of the LA 2011 to promote and maintain high standards of member conduct. Similarly the publication did not breach Article 8 of the European Convention on Human Rights (ECHR) (right to respect for private and family life), because the prejudice caused to the claimant and his family was far outweighed by the public interest in openness, transparency and accountability.
The case provides a detailed analysis of authorities’ investigatory powers in relation to alleged misconduct and wrongdoing by members and will be of particular interest to lawyers involved in advising on issues relating to members’ conduct.
GOVERNMENT GUIDANCE AND PUBLICATIONS OF INTEREST TO LOCAL AUTHORITY LAWYERS
On 18 September 2017, the Department for Communities and Local Government (DCLG) published a consultation on the government’s proposals for updating the criteria disqualifying individuals from being elected, or holding office as a local authority member or directly elected mayor.
On 4 September 2017, the Department for Education issued directions to the London Borough of Croydon Council in respect of its children’s social care functions and appointed a Children’s Services Commissioner to oversee and review these.
On 2 September 2017, the Department for Transport published a consultation document on the future of highway lane rental.
On 24 August 2017, the Infrastructure and Projects Authority and the Cabinet Office issued guidance on resources available for government project managers.
On 11 August 2017, the Secretary of State for Communities and Local Government wrote to all local authority chief executives about identifying all residential tower blocks with aluminium composite material cladding.
On 31 July 2017, HM Courts & Tribunal Services published its Administrative Court Judicial Review Guide 2017. The 2017 guide reflects the legislative and practice changes that are relevant to the Administrative Court and which have been made since the 2016 guide was published by HM Courts & Tribunal Services. The guide also includes details for the court, information on forms and fees and addresses for serving documents on government departments.
On 18 July 2017, the Welsh Government issued a consultation on electoral reform in local council elections.
On 18 July 2017, the Secretary of State for Communities and Local Government wrote to Rotherham Council proposing the return of further functions to the authority.
On 10 July 2017 the Committee on Standards in Public Life published its annual report for 2016-17 and announced its intention to undertake a review of local government standards as part of its forward plan for 2017-18.
On 7 July 2017, the Equality, Local Government and Communities Committee of the National Assembly for Wales published a report on the Abolition of the Right to Buy and Associated Rights (Wales) Bill.
On 30 June 2017, the DCLG published an explanatory note on its fire safety checking programme for high rise buildings.
LOCAL GOVERNMENT & SOCIAL CARE OMBUDSMAN DECISIONS AND PUBLICATIONS
On 24 August 2017, the Local Government and Social Care Ombudsman (LG &SCO) published a report into complaint number 16 004 113 against the London Borough of Redbridge, over the council’s failure to provide occupational therapy and one-to-one support for five months to the complainants’ son in accordance with his statement of special educational needs (Investigation into a complaint against London Borough of Redbridge (16 004 113)).
On 2 August 2017, the LG&SCO published details of the complaints it has received about all local councils in England in 2016-17.
On 19 June 2017, the Local Government Ombudsman announced that it had changed its name to the Local Government & Social Care Ombudsman.
OTHER PUBLICATIONS OF INTEREST
On 22 September 2017, the Local Government Association published its submission to the Autumn Budget 2017. The report details the financial pressures faced by local government organisations, stating that councils in England will have faced combined funding cuts of £16 billion by the end of the decade, and that 168 councils will receive no revenue support grant from April 2019. The report discusses the strain on locally provided children’s services and adult social care programmes, and details the rising issue of homelessness.
On 8 September 2017, the auditor firm KPMG published a draft external audit report for 2016/17 concerning Bolton Metropolitan Borough Council. The draft report criticises the council’s use of emergency powers in its decision-making.
On 14 August 2017, the South West Audit Partnership, carrying out an investigation on behalf of Herefordshire Council, reported that a £1m overspend on a council project was caused by council officers disregarding council procedure.
On 6 July 2017, the National Audit Office published a report assessing the effectiveness and future of combined authorities.
HOUSE OF COMMONS LIBRARY BRIEFING PAPERS
The House of Commons Library has published the following briefing paper of interest to local government lawyers:
FEATURED ASK QUERIES
- Can section 16A of the Road Traffic Regulation Act 1984 be used to close a public right of way to hold a rally for motor vehicles?