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 February to April 2016.
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.
- Other developments of interest to local authority lawyers.
CASES OF INTEREST TO LOCAL AUTHORITIES
High Court rejects claimant’s challenge to council’s decision to hold festival (R (The Friends of Finsbury Park) v Haringey London Borough Council and others)
The High Court has dismissed an application for judicial review of the London Borough of Haringey’s decision to hire a council-owned park for a licensed music festival. The High Court rejected the claimant’s various grounds of challenge, the main ground being that section 145 of the Local Government Act 1972 (which deals with the provision of entertainments and was submitted to be a power for the council to provide or subsidise entertainments and the arts) did not provide the council with the necessary power to close the park to enable the music festival to go ahead.
In addition to the issue of vires, the decision confirms the well-established principles of consultation that have been developed in caselaw. Further, the court applied in relation to two of the claimant’s grounds the provisions of section 84 of the Criminal Justice and Courts Act 2015. This section amended section 31 of the Senior Courts Act 1981 to provide that if it appears to the High Court to be highly likely that the outcome for the applicant in a judicial review application would not have been substantially different if the conduct complained of had not occurred, the court must refuse to grant relief on an application for judicial review.
High Court holds that council’s decision on social housing allocation does not breach Article 8 ECHR (Jones v Luton Borough Council)
On 3 August 2016, the High Court dismissed a claim that Luton Council’s decision not to allocate a two bedroom property in accordance with its social housing allocation policy was unlawful.
The judgment presents an interesting examination of the concepts of “family” and “dependency” in the context of both a social housing allocation policy and Article 8.
High Court holds that local authority’s refusal to exercise power under section 1 of the Localism Act 2011 to provide accommodation for an EEA national was unlawful (GS v London Borough of Camden)
The High Court has upheld a challenge that a local authority’s decision not to exercise its general power of competence under section 1 of the Localism Act 2011 (LA 2011) to provide accommodation to an EEA national with physical and mental health difficulties who was homeless was unlawful. It did so on the basis that:
- The local authority had conducted a lawful assessment of the claimant’s needs under the Care Act 2014 (CA 2014) and was right to conclude that she had no needs for care and support. The claimant’s requirement was for accommodation alone, which is not a need for care and support.
- Schedule 3 of the Nationality, Immigration and Asylum Act 2002 (NIA 2002), in particular paragraphs 1 (ka) and 5, applied to the claimant so that she was not eligible for certain forms of support from the local authority, or assistance under section 1 of the LA 2011 save to the extent that the exercise of the power was necessary for the purposes of avoiding a breach of her rights under the European Convention on Human Rights (ECHR).
- Taking into account the entirety of the claimant’s circumstances including her lack of funds, potential social isolation, physical disabilities, pain, mental health condition and her physical difficulties, there would be a breach of article 3 of the ECHR (prohibition against inhuman or degrading treatment or punishment) were she to become homeless. This converted the power in section 1 of the LA 2011 into a duty to provide accommodation in the claimant’s case to avoid a breach of her ECHR rights.
Although the claimant’s success on the ECHR grounds appear to have been fact specific, the decision may cause concern that it could lead to an increase in requests for support with accommodation using powers under section 1 of the Localism Act 2011, particularly from persons from abroad.
PSED challenge succeeds as High Court quashes local authority’s decision to cut funding for short breaks (R (DAT and another) v West Berkshire Council)
On 22 July 2016, the High Court held that a council’s decision to cut funding to voluntary sector organisations which provided short breaks to disabled children was unlawful.
In common with all public authorities, the council was required by section 149 of the Equality Act 2010 to have due regard to its equality duties in the exercise of its functions. In making its decision, the council was not correctly directed in respect of the effect of section 149 and accordingly did not address the issue it was required to. The council was provided with the text of section 149(1), in which a public authority’s duty is encapsulated, but this was accompanied by an explanatory “formula” which was not tailored to the decision in question and did not accurately describe the effect of section 149 in the context of that decision. Further, there was no evidence that the council had been directed to address further mandatory considerations which arose from the proposal to cut funding.
A later, second decision was made by the council which ratified the earlier decision to cut funding for short breaks. On this occasion the council was adequately advised of its duties and the correct questions it needed to ask itself. This decision was, however, held to have been materially affected by apparent predetermination on the council’s part. The court held that the later decision could not, therefore, constitute an effective cure of the earlier decision.
The court determined that both decisions were unlawful and gave a provisional view, subject to further submissions from the parties, that they should be quashed.
The case presents an interesting evaluation of different aspects of council decision making. It will be of interest not only to councils who are considering funding cuts of this kind but, more widely, public authorities who are faced with a decision which explicitly engages the public sector equality duty and section 149. The judgment is notable also for an extensive discussion regarding, and an attempt to clarify, the extent of a public authority’s duty under section 149, as well as criticism of recent case law which has considered the issue.
FTT(GRC) rules that lack of an onsite clubhouse at a golf club was fatal to listing as an asset of community value (Haddon Property Development Ltd v Cheshire East Council and another)
The FTT(GRC) has held that a golf course, which had been listed as having community value prior to its closure in 2013, was unlikely to further the social wellbeing or interests of the local community in the next five years. This was primarily due to the fact that the onsite clubhouse had no permanent planning permission, and was unlikely to obtain it.
High Court dismisses claim for damages in misfeasance in public office claim (Perma-Soil UK Ltd v Williams and another)
On 10 May 2016, the High Court dismissed a claim for damages for misfeasance in public office that was brought against Flintshire County Council and one of its employees, a senior street works engineer. It did so on the basis that although there had been an exercise of public power, the claimant had not proved the ingredients of the tort.
The case demonstrates the importance of ensuring that documentary evidence that is filed supports what is claimed. Although there were several matters that taken together created a strong suspicion that the council’s employee had a financial interest in, or benefit from, the company that was a rival to the claimant company, the evidence did not support such a finding on the balance of probabilities.
OTHER DEVELOPMENTS OF INTEREST TO LOCAL AUTHORITY LAWYERS
On 12 May 2016, the Department for Communities and Local Government published a consultation on changes to the Local Government Transparency Code 2015, in particular relating to the way that local authorities record details of their land and property assets and publish information about their procurement, their contracts and the delivery of some of their services.
On 8 June 2016, the Department for Transport published an explanatory note on eligibility for concessionary travel.
On 21 July 2016, the Cabinet Office and Home Office published a code of practice and an impact assessment on the English language requirement for public sector workers.