PLC Public Sector reports:
Make sure that you have not missed a key development in your area of law by reviewing our latest list of recommended actions.This week’s actions are:
ASBOs: local authority enforcement officers should be alerted to the High Court’s conclusion in Gavin James v Birmingham City Council that a local authority is not required to establish a fresh act of anti-social behaviour before any variation to an existing anti-social behaviour order (ASBO) can take effect since the only issue for the court is whether the variation to the ASBO is necessary in order to protect the public.
Benefit review boards: local authority benefit review boards will welcome the Supreme Court’s decision in Tomlinson & Ors v Birmingham City Council that Article 6(1) of the European Convention on Human Rights does not apply when deciding whether a benefit review under sections 202 and 204 of the Housing Act 1996 was taken by a fair and impartial tribunal since an applicant’s right to housing under the Act is not a “civil right”.
Decision-making: the LGO decision against Kirklees Metropolitan Borough Council reiterates the importance of ensuring that reports upon which decisions are to be based are comprehensive and do not contain serious errors and omissions so that local authority members or officers taking the decision do so from an informed position and in possession of all relevant facts.
Education: the decision of the EAT in J Beattie and Others v Leicester City Council is a timely reminder to local authority officers carrying out HR functions for voluntary-aided schools that letters of appointment and employee contracts should make it clear where the school, and not the local education authority, is the employer. Although Leicester Council successfully defeated the equal pay claims brought by the support staff, the pay claims might not have been issued if it had been clear from the outset who the actual employer was.
Employment: following the decision in Gibson & others v Sheffield County Council, local authority employers must be able to justify any unequal pay rates between predominantly male groups of employees, such as street cleaners, and predominantly female groups, such as carers, who are “rated as equivalent”, so that an equal pay claim, if brought, cannot succeed on the basis that the pay difference is tainted by sex discrimination.
TUPE: Lawyers advising on public sector outsourcings should note the decision in Parkwood Leisure Ltd v Alemo-Herron, which found that transferred employees were not entitled to pay increases negotiated under collective agreements after the transfer date. If the public sector client wants to ensure staff do benefit from such increases, it must make contractual provision for it. Conversely, if the public sector client does not want to bear the cost of such increases, it should ensure that the contract terms and pricing assumptions made by the transferee do not pass the cost of these post-transfer salary increases back to the public sector client. However, it is worth noting that the decision only applies to increases which had not been negotiated at the time of the transfer. Therefore, employees will continue to benefit from increases which were agreed before the transfer date but are yet to take effect.
Overpayment of housing benefits: local authority debt recovery officers should be alerted to the High Court decision in Peter Murphy Joseph v The London Borough of Newham and be reminded that steps to enforce the local authority’s right to recover money owed to it within the statutory time limits must be taken at the time the right arises, without significant delay and in accordance with any relevant recovery policy the local authority has.
Public sector race & equality duties: public authorities should be aware of the decision in R on the application of the Equality & Human Rights Commission v The Secretary of State for Justice & others, which is a timely reminder that public authorities have to consider the impact of their decisions in relation to their public sector race and disability duties. In particular, decision-makers should ensure that reports prepared as the basis for decisions demonstrate the way in which the substance of those duties was discharged rather than just mentioning that the duties have been complied with.
School forums: local authorities in England are reminded that when the regulations on school forums come into force on 1 April 2010, the forums will be required to include non-school members representatives from the local authority’s 14-19 partnership and early years providers. When drawing up annual budgets local authorities will have to consult the forum in relation to the schools for which they are responsible.
Consultations: this week there were three consultations on:
- Proposed civil sanctions for the Environment Agency.
- Guidance on the definition of waste under the 2006 Waste Framework Directive.
- Adult social care laws. The consultation looks at consolidating the raft of legislation governing local authorities duties to assess need and provide services. It will be interesting to see how these revisions incorporate the personalisation agenda.