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 November 2014 to January 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 TO LOCAL AUTHORITIES
High Court holds that regulations on charging overseas visitors for healthcare breached the public sector equality duty (R (Cushnie) v Secretary of State for Health)
On 5 November 2014, the High Court has held that the Secretary of State, when making the National Health Service (Charges to Overseas Visitors) Regulations 2011, had breached the public sector equality duty set out in section 149 of the Equality Act 2010. The court reached this conclusion on the basis that the regulations had an unduly differential impact with those with a disability who did not qualify for assistance under sections 4 or 96 of the Immigration and Asylum Act 1999.
Council’s challenge to lawfulness of best value inspection failed (R (London Borough of Tower Hamlets) v Secretary of State for Communities and Local Government)
On 14 November 2014, the High Court rejected a renewed application for permission to bring judicial review proceedings by the London Borough of Tower Hamlets challenging the Secretary of State’s decision of 4 April 2014 to appoint Price Waterhouse Coopers LLP to carry out a best value inspection of the authority under section 10 of the Local Government Act 1999 (LGA 1999).
The High Court rejected the council’s argument that the Secretary of State had failed to give adequate reasons for the best value inspection. There was no express or statutory duty to give reasons, although, according to principles of fairness and natural justice, there was a duty under common law to identify why an inspector was being appointed. However, as the decision was one on whether to commission an inspection to determine compliance with statutory duties and not a concluded decision as to whether there had been compliance or not, there was no greater duty on the Secretary of State than to identify in general terms why that decision was being made.
The High Court also rejected the council’s allegation of irrationality, that the Secretary of State had exercised his power under section 10 of the LGA 1999 for a purpose that was not within the intention of the legislation. The legislative purpose of the section 10 power, which is to inspect whether an authority is complying with its best value duty is broad, as is the best value duty, given it is intended to secure continuous improvement in the way in which an authority’s functions are exercised having regard to a combination of economy, efficiency and effectiveness. The High Court was satisfied that the Secretary of State had exercised the relevant power for a purpose that was within the proper scope of the legislative intent.
Council’s selective licensing scheme quashed due to consultation failings (R (Regas) v London Borough of Enfield)
On 15 December 2014, the High Court quashed the council’s decision that the council had taken under the Housing Act 2004 to designate the whole borough for both additional licensing of houses in multiple occupation and selective licensing of private rented sector properties. It did so on the basis that the decision was unlawful for a failure to consult those likely to be affected by the designation who lived or operated businesses or services in the immediately adjoining parts of other local authority areas. The case is a useful reminder of the importance for public bodies of getting a consultation right.
High Court quashes council’s decision to set care home fees (R (Torbay Quality Care Forum Limited) v Torbay Council)
On 23 December 2014, the High Court upheld a challenge by a group of care home providers to a council’s decision to set the rates it would pay for residential care. The court considered that the mathematical formula on which the rate for establishing the usual cost of care was based was flawed in several respects, including that the council had taken into account income the providers would receive from private clients. Therefore, the High Court ordered that the decision be quashed on the basis that the mathematical model the council had used contained errors and had been interpreted erroneously and because the council had not had regard to the relevant guidance, Circular LAC (2004) 20. The matter was remitted back to the council for further consideration and for a redetermination.
Claimant successfully challenges council’s decision to join housing consortium (R (Galaxy Land Ltd) v Durham County Council)
On 15 January 2015, the claimant property development company successfully challenged by way of judicial review the council’s decision to join a housing consortium promoting housing development on a site where the council owned over 39 acres of land. The High Court was satisfied that the report to the cabinet failed to have regard to material considerations on the disposal of land under section 123 of the Local Government Act 1972 (LGA 1972) and the council had failed to comply with the section 123 statutory procedures on a disposal of open space land. The decision is a useful reminder for local authority officers, involved in preparing a report to members taking a decision, of the importance of ensuring the document contains the relevant background information and papers and includes details of the relevant considerations that those taking the decision must have in mind. The decision also confirms that, when exercising its powers to dispose of land under section 123 of the LGA 1972, it is essential that a local authority follows the statutory processes and procedure.
Court of Appeal refuses an appeal against council’s decision to cease providing a direct transport service to eligible disabled adult users (R (Robson and another) v Salford City Council)
On 20 January 2015, the Court of Appeal refused an appeal against the council’s decision to cease providing a direct transport service through its dedicated unit to eligible disabled adult users. The Court of Appeal was satisfied that the council had not acted unlawfully in failing to undertake individual community care assessments before deciding to terminate the unit. The closure of the unit could not be equated with the withdrawal of a service as closing the unit would not prevent the council from making other transport arrangements for those currently using the service. A full reassessment of the individuals’ community care needs was not required before the council could take the closure decision. The transport assessments that the council had undertaken were sufficient.
VARIOUS LEGISLATIVE AND OTHER DEVELOPMENTS OF INTEREST TO LOCAL AUTHORITY LAWYERS
Order made enabling summons to be sent electronically to council members
On 30 January 2015, the Local Government (Electronic Communications) (England) Order 2015 came into force. The order amends Schedule 12 to the Local Government Act 1972 to enable meeting summonses to be sent electronically to members of principal councils and parish councils. However, the order states that members must consent to summonses being sent in this way and can withdraw their consent at any time.
Local government audit
In relation to the various changes to the audit regime that are set out in the Local Audit and Accountability Act 2014, the Local Audit and Accountability Act 2014 (Commencement No 4) Order 2014 brought into force on 16 December 2014 those provisions relating to the eligibility and regulation of auditors contained in Schedule 5 to the Act.
On 23 December 2014, the Accounts and Audit (Wales) Regulations 2014 were laid before the National Assembly for Wales. These regulations, which will come into force on 31 March 2015, amend the previous 2005 version of the regulations. In particular, they will increase from £1 million the threshold of gross income or expenditure for “smaller relevant bodies” to no more than £2.5 million per year and will require these bodies to undertake an annual review of risk management arrangements. Further, it will no longer be an offence to fail to comply with the regulations.
Local government polls and referendums
On 18 November 2014, the House of Commons published a standard note on the powers of local authorities to hold polls and referendums. The intention is that the note will provide a useful summary of the law that applies to advisory referendums called by principal local authorities, to parish and community polls and to referendums on specific subjects such as mayoral tax, council tax and planning referendums.
On 29 December 2014, the Department of Health published guidance on the Care Act 2014 for carers and the cared for. The guidance explains the changes to care and support to be introduced under the Act, including information on the ability to enter into a deferred payment agreement with any council from April 2015 to help pay for the costs of residential care and on the cap of £72,000.
On 12 January 2015, the National Audit Office (NAO) published a draft code of Audit Practice for local public bodies, which code prescribes the framework within which local auditors are to carry out their statutory responsibilities for the audit of local public bodies under the Local Audit and Accountability Act 2014. The NAO will supplement the code with additional guidance, including on planning local NHS and local government audits.
On 14 January 2015, the Department for Transport published guidance for local authorities and other public bodies that provide funding for community transport organisations or projects. The document explains all the legal requirements they should be aware of, including the EU state aid rules.
On 27 November 2014, the Department for Communities and Local Government (DCLG) published a consultation on its review of the Bellwin scheme of emergency financial assistance to local authorities, under section 155 of the Local Government and Housing Act 1989. The government had undertaken a review of the Bellwin scheme, which is designed to recompense authorities for the costs of emergency measures undertaken to safeguard life or property, or to prevent further suffering and inconvenience locally, during exceptional circumstances. The review’s proposals included retaining the lower thresholds that are used to determine the point at which central government support for a local emergency is given and the government paying 100% costs above the thresholds.
On 4 December 2014, the DCLG published a consultation on modernising parish polls and proposed new regulations inviting views on the trigger for a poll. The new regulations will specify that no poll will be held unless one is demanded by the majority of local government electors present at the parish meeting and they constitute not less than 10% of local government electors or 60 electors (if 10% of electors exceeds 60).
On 19 December 2014, the DCLG published a consultation on proposed amendments to the provisions on forming a combined authority or economic prosperity board in Part 6 of the Local Democracy, Economic Development and Construction Act 2009. The changes, which would be introduced by a Legislative Reform Order as soon as practicable, are intended to ensure that local authorities are able to collaborate across their functional economic areas, to maximise economic development and regeneration.
On 10 January 2015, HM Revenue & Customs published the draft Income Tax (Travel Expenses of Members of Local Authorities) Regulations 2015 and has invited comments on the draft regulations. The government had announced back in July 2014 that it would introduce a new exemption from tax for payments by a local authority in respect of travel expenses incurred by its members.