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 May 2015 to July 2015.
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.
- Various legislative and other developments of interest to local authority lawyers.
Cases of Interest
Selective licensing designation upheld despite availability of alternative options (R (Rotherham Action Group Ltd) v Rotherham Metropolitan Borough Council)
The High Court has refused a challenge to Rotherham Metropolitan Borough Council’s selective licensing scheme, rejecting a claim that the council had failed to consider whether there were other courses of action open to it. The claimant represented the interests of landlords and initially challenged the decision on grounds that there had been inadequate consultation and that the council failed to consider other courses of action. The High Court held that the proper construction of section 81(4)(a) of the Housing Act is that there is a mandatory duty on a local housing authority (LHA) to consider other available courses of action but the LHA at its discretion may make a designation, even if there are other such courses of action available.
Ordinary residence: Supreme Court rules that responsibility lies with same local authority who placed as a looked after child (R (Cornwall Council) v Secretary of State for Health and others)
In order to establish which of three local authorities was responsible for the care of a young man without mental capacity, the Supreme Court had to decide where he was ordinarily resident. The young man in question was born in Wiltshire, placed in another local authority area (LA) as a looked after child and was moved again as an adult into residential care. The court held, by a majority, that if a person was placed as a looked after child by one LA in another LA’s area, then as an adult was placed in another, different LA area, the first LA will be the person’s place of ordinary residence and remain responsible for the person’s long-term care costs when he becomes an adult (even if the person has settled in the second LA’s area and no longer has any links with the first LA’s area). The decision applies equally to cases post-Care Act 2014, as there is no statutory definition of ordinary residence. LAs may need to review their files to see whether they have similar cases.
High Court judge should not have made findings that he did on the basis of the evidence before him in judicial review proceedings (Patel v Secretary of State for the Home Department)
The Court of Appeal has allowed the defendant’s appeal against a decision of the High Court in which the defendant was ordered to pay the claimant £125,000 by way of damages for false imprisonment. The defendant, having being given liberty to file further evidence at a directions hearing, only provided perfunctory answers to questions that were raised to explain the circumstances in which the claimant had been interviewed by immigration officers and the case was therefore decided by the judge on the papers. However, the court ruled that, given that the defendant’s officers were accused of acting dishonestly and maliciously, they should have been called as witnesses to enable the judge deciding the matter to have the benefit of their cross-examination. The case demonstrates that, although the giving of oral evidence in judicial review has historically been exceptional, there may be cases that require the giving of oral evidence and cross-examination. A defendant faced with a judicial review challenge should be live to the allegations that are made and consider how the case needs to be tried in the light of the allegations and the issues involved.
Playing field and car park each listed as asset of community value (C, S & D Trouth v Shropshire Council and another)
The First-tier Tribunal has decided that Shropshire Council was correct to list both a playing field and a car park as assets of community value. The tribunal held that section 88(2)(a) of the Localism Act 2011 applied to both units: there was a time in the recent past when a primary use of each had furthered the social wellbeing or interests of the local community. The decision is a useful guide to when nominated land should be treated as a unit in its own right.
High Court rules delay in processing applications for PIP benefit unlawful (R (C and W) v The Secretary of State for Work and Pensions and Zacchaeus 2000 Trust)
On 5 June 2015, the High Court ruled that the Department for Work and Pensions had acted unlawfully in failing to process the claimants’ applications for personal independence payments (PIP) within a reasonable period. However, the delay had not breached the claimants’ human rights under Article 6 or Article 1 of Protocol 1 of the European Convention on Human Rights. It did not grant a declaration in wider terms, given the considerable variation in individual circumstances. The case provides a summary of the delays that have affected the implementation of PIP. However, although the claimants succeeded in their claim that the delays were unlawful, they did not receive any compensation for those delays.
High Court rules on “costs reasonably incurred” in liability order case under Council Tax Regulations 1992 (R (Nicolson) v Tottenham Magistrates’ and another)
The High Court has ruled on the meaning of “costs reasonably incurred” under regulation 34 of the Council Tax (Administration and Enforcement) Regulations 1992 (SI 1992/613) in a council tax arrears case where a liability order was obtained by the London Borough of Haringey for which the council claimed costs of £125. The claimant successfully challenged these costs as excessive. This decision makes it clear that an individual is entitled to request a breakdown of how any costs are calculated and to challenge these where the costs incurred were not reasonably incurred and excessive. The judgment gives the example of a council sending a QC along to argue a simple point of law in the magistrates’ court. Local authorities should therefore ensure that they are able to provide a breakdown of the costs that have been reasonably incurred in making a liability order and that the breakdown is sufficiently detailed and accurate. This should not be confused with consideration of whether any costs incurred are proportionate.
High Court gives guidance on minimum requirements for public authorities that cannot represent themselves in judicial review cases due to financial reasons (R (Midcounties Co-Operative Ltd,) v Forest of Dean District Council Trilogy and another)
The High Court has quashed a planning permission in favour of the claimant relating to an out-of-town shopping centre and expressed its concern that the council had not taken part in any of the proceedings and had left the developer as an interested party to defend its decision because of financial constraints. It held that, as a minimum a public authority in this situation, should comply with its duty of candor, consider whether a witness statement should be filed and whether a representative of the authority should be present in court at any hearing.
Supreme Court holds that Services Directive does not prevent licensing bodies charging for running costs of licensing schemes (R (Hemming (t/a Simply Pleasure Ltd) and others) v Westminster City Council)
The Supreme Court has held that the Services Directive (2006/123/EC) permits licensing authorities to include in their licensing fees a charge to cover the costs of managing and enforcing the licence scheme, overruling the Court of Appeal. The decision moves the debate from whether charges can be made to how they are structured.
High Court rejects challenge to council’s decision to change funding of nursery provision (R (Morris) v Rhondda Cynon Taf County Borough Council)
The High Court has dismissed a challenge to a council’s decision to stop providing free full time nursery education for three-year olds on the basis that the consultation was inadequate and flawed, since the council had excluded any reference to the fact that free school transport would be terminated with the loss of full time nursery provision. A similar decision by the same council in relation to the previous academic year had been declared unlawful. In rejecting the claimant’s ground, the High Court held that the decision in Moseley v London Borough of Haringey  UKSC 56 had not established an inviolable rule that alternative options must be consulted on in every consultation and the council had made it clear in its consultation documents that free transport would be removed. The case is a reminder of the importance of getting a consultation right, having regard to the particular circumstances of the case.
Various Legislative Developments
Consultation published on the provision and use of financial information in relation to judicial review
On 21 July 2015, the Ministry of Justice published a consultation on its proposals for the rules setting out the financial information required from a claimant at the outset of a judicial review application and for implementing a costs capping order.
Criminal Procedure Rules 2015 laid before Parliament
On 20 July 2015, the Criminal Procedure Rules were laid before Parliament. They consolidate the Criminal Procedure Rules 2014 (SI 2014/1610) and also rearrange and amend the content of the rules, including allowances for electronic service of documents, changes to the list of materials that must be included in an initial case, allowing applications to remit a criminal courts charge in regards to enforcement of fines, and the power to temporarily confiscate electronic communication devices belonging to jurors.
BRDO publishes policy paper on Primary Authority extension and simplification
On 17 July 2015, the Better Regulation Delivery Office published a policy paper on the extension and simplification of the Primary Authority scheme. The Primary Authority scheme is intended to ensure consistency in the regulation of businesses by local authorities and fire and rescue authorities. Alongside the policy paper, the BRDO has announced that it is holding several meetings for regulators and business representatives to discuss proposals to simplify the Primary Authority scheme.
House of Lords publishes report on amendments to the Cities and Local Government Devolution Bill
On 14 July 2015, the House of Lords’ Delegated Powers and Regulatory Reform Committee published its fourth report on the Cities and Local Government Devolution Bill 2015 (Bill) in response to the government’s amendments to the Bill. The Committee invited the House to press the government to provide a fuller explanation for the amendments and how wider local engagement will be ensured.
DfE publishes policy statement on Childcare Bill 2015-16
On 2 July 2015, the Department for Education published a policy statement on the Childcare Bill 2015-16. The policy statement sets out further details about the government’s intentions behind the Bill, to help members of the House of Lords in their scrutiny of it. It may be some comfort to local authorities to know that the Bill is not likely to require them to publish new types of childcare information.
Playing Fields (Community Involvement in Disposal Decisions) Welsh Regulations 2015 laid before NAW
On 24 June 2015, the Playing Fields (Community Involvement in Disposal Decisions) (Wales) Regulations 2015 (SI 2015/1403) were laid before the National Assembly for Wales (NAW) and will come into force on 1 October 2015. Under the regulations, where a local authority is deciding to dispose of the whole or any part of a playing field, the authority in Wales must publish a notice in at least one local paper for two consecutive weeks before the decision, inform the public about their right to make representations and take these representations into account. Exceptions will be made if the disposal will not have an adverse impact on the use of the playing field by the public for recreational activities.
NAO review of burdens on local authorities
On 11 June 2015, the National Audit Office (NAO) published a review of how well the government has applied the new burdens doctrine. The review sets out how the government would ensure that new requirements that increased local authorities’ spending did not lead to excessive council tax increases. The report also focuses on what local authorities could do to improve transparency in this area, pointing out that government departments have struggled in some cases to obtain reliable cost data from local authorities.
Statutory guidance on gang injunctions published
On 8 June 2015 the Home Office published updated statutory guidance on injunctions to prevent gang-related violence and drug dealing (or “gangbos”). Local authorities and police forces are required by the Policing and Crime Act 2009 Act to have regard to the statutory guidance, which states that local authorities should keep local records of the number and details of applications made for injunctions, outcomes and effectiveness, to assist with the post-legislative review of the Crime and Courts Act 2013 and Serious Crime Act 2015.
Public Health (Wales) Bill introduced
On 8 June 2015, the Public Health (Wales) Bill was introduced by the Welsh Government. The Bill requires practitioners and businesses carrying out “special procedures”, such as tattooing and acupuncture, to be licensed by local authorities, restricts the use of tobacco and nicotine inhaling devices in enclosed public places and requires each local authority to prepare, publish and periodically review a local toilets strategy.
House of Commons Library briefing paper: Carers’ rights and benefits (England) published
On 5 June 2015, the House of Commons Library published a briefing paper on carers’ rights and benefits in England. The paper summarises the law applicable to carers, in particular in relation to the right to receive a local authority assessment, employment rights and changes to benefits affecting carers.
Guidance on enhanced consumer measures to be introduced by Consumer Rights Act 2015 against businesses
On 3 June 2015, the government published guidance for consumer law enforcers on the enhanced consumer measures in the Consumer Rights Act 2015. The new powers are intended to help consumers more directly than is possible under existing legislation and are called “enhanced consumer measures” or ECMs. The guidance sets out how ECMs are intended to work, and when it might be appropriate to use them. It also includes helpful illustrative case studies.
Childcare Bill 2015-16 proposes changes to free childcare provision
On 2 June 2015, the Childcare Bill 2015-16 had its first reading in the House of Lords. The Bill will require the Secretary of State to make free childcare available for 30 hours for 38 weeks of each year and allow childcare provided by local authorities to count towards the 30-hour allowance. Regulations to be made will require English local authorities to publish prescribed childcare and child services information.
Cities and Local Government Devolution Bill has its first reading
On 28 May 2015, the Cities and Local Government Devolution Bill had its first reading. The Bill takes forward the reforms that are intended to allow for the implementation of devolution agreements with combined authority areas. The Bill also introduces governance and structures that will be necessary in order for different neighbouring local authorities to work together under an elected mayor.
House of Commons Library publishes three briefing papers on social care
On 20 May 2015, the House of Commons Library published three briefing papers on social care in England: Direct Payments from a local authority; Planned changes to paying for care, including the cap, from April 2016; and Paying for care home places and domiciliary care.