PLC Public Sector reports:
Make sure that you have not missed a key development in your area of the law by reviewing our latest list of recommended actions.
Education: education lawyers should note the following developments:
- The Education Act 2011 (Commencement No. 3 and Transitional and Savings Provisions) Order 2012 was made on 22 March 2012. The Order brings further provisions of the Education Act 2011 into force on 1 April and 1 May 2012 including provisions dealing with 16-19 year olds and alternative provision academies, the searching of pupils and students by staff, and the abolition of the Young People’s Learning Agency for England.
- The Department for Education has published a new statutory framework for the Early Years Foundation Stage, which sets standards for learning and welfare of children up to the age of five. The framework sets out new learning and development requirements, a new framework for the assessment and observation of children by practitioners, and safeguarding and welfare requirements.
Employment: employment lawyers dealing with redundancies will find the Court of Appeal’s decision in Woodcock v Cumbria Primary Care Trust interesting. Here, the Court of Appeal held that an NHS Trust’s dismissal of a redundant chief executive without proper consultation to avoid his qualification for an enhanced pension was not unlawful age discrimination because the treatment was justified. However, employers should still be cautious of dismissing older workers in order to avoid incurring additional pension liability. The Court of Appeal (and the EAT) made repeated references to the fact that the Trust had already been over-generous to Mr Woodcock, that he had no legitimate expectation of the enhanced pension and that it would be an undeserved windfall. The decision can be contrasted with the EAT’s decision in London Borough of Tower Hamlets v Wooster that the employer had discriminated against a redundant employee nearing his 50th birthday, by dismissing rather than deploying him in order to avoid an enhanced early retirement pension.
Environment: environment lawyers will be interested to know that the Supreme Court in Secretary of State for Energy and Climate Change v Friends of the Earth and others has confirmed that the Department of Energy and Climate Change’s proposal to cut feed-in tariffs (FITs) before its autumn 2011 consultation on the proposal closed was unlawful as it breached the statutory scheme for modifying FITs.
Equality Act 2010: discrimination lawyers should be aware that the Equality and Human Rights Commission has announced that it will not be proceeding with its plans to publish statutory codes of practice on the public sector equality duty and for the further and higher education sector and schools. The draft codes will instead be published in non-statutory form.
Freedom of information and data protection: information lawyers will be interested:
- In the Court of Appeal’s decision in Kennedy v Charity Commission, which considered the relationship between the exemption from disclosing information under section 32 of the Freedom of Information Act 2000 for information relating to inquiries and Article 10 of the European Convention on Human Rights. Although the Court of Appeal had some sympathy with the applicant’s argument that, as an investigative journalist, the blanket exemption from disclosure of such information for 30 years, breached his rights to freedom of expression under Article 10 and, applying section 3 of the Human Rights Act 1998, should be limited, it was bound by the recent decision in Sugar v British Broadcasting Corporation and another that the limitation of an applicant’s rights to information under FOIA do not engage the applicant’s rights under Article 10. However, leave has been given to appeal the decision to the Supreme Court.
- To know that the Information Commissioner has published guidance on the data protection exemption for regulators and on how to determine whether an organisation is a data controller or data processor for the purposes of the Data Protection Act 1998.
- In guidance published by the Information Commissioner’s Office on dealing with requests where the costs of compliance exceeds the ‘appropriate limit’ set out in section 9 FOIA and on fees that may be charged where the cost of compliance does not exceed the appropriate limit. Where a request exceeds the limit a public authority should help the applicant to refine the request so that the associated costs with complying fall under the limit. Where a request does not exceed the limit and a public authority wishes to charge a fee, only fees for expenses that have actually been incurred can be charged, and an applicant must be issued with a fees notice informing them of the amount to be charged.
Health: local authority lawyers should be aware that the Health and Social Care Bill 2010-2012 received Royal Assent on 27 March 2012 to become the Health and Social Care Act 2012.
Housing: the following housing-related developments are likely to be of interest to housing lawyers:
- Local authority housing officers conducting housing reviews under section 202 of the Housing Act 1996 will be interested in the Court of Appeal’s decision in Sheridan and others v Basildon Borough Council, particularly the court’s comments on the arguments that are appropriate for a section 202 review. In this case, which concerned the offer of “bricks and mortar” accommodation to Irish travellers, the Court of Appeal considered that it was inappropriate to expect a local authority review officer to conduct a general inquiry into strategic questions about the preparation of a homeless strategy and the adequacy of site provision for travellers. The court made clear that the focus of the review was limited to whether the accommodation from within the housing authority’s existing resources adequately met the applicant’s needs.
- The Social Housing Regulator, currently the Tenant Services Authority, has published a regulatory framework for social housing landlords in England from April 2012. The framework makes a number of changes to the 2010 version of the framework and incorporates the requirements of the Localism Act 2011, proposals from the TSA’s November 2011 consultation on social housing regulation and the government’s directions to the SHR.
Property and planning: local planning lawyers should be aware that rectification of the register of town or village greens should be made and resolved at the earliest opportunity. Although Parliament had not prescribed a time limit for making applications under section 14 of the Commons Registration Act 1964, it must have envisaged that those adversely affected (here the developer, Paddico) would have make a reasonable prompt application (Adamson v Paddico).
Social services: lawyers dealing with social services should be aware that the Department of Health published Circular LAC (DH) (2012)1 on 20 March 2012, which sets out changes in relation to charging for residential accommodation. The Circular will come into force on 9 April 2012. The Circular states that the personal expenses allowance will increase, capital limits and credit disregards are to stay at their current levels and that changes have been made to ex-gratia payments to those who have received contaminated blood. The Charging for Residential Accommodation Guide and accompanying regulations are to be revised and reissued before the changes take effect.
Waste authorities: should be aware that the Controlled Waste (England and Wales) Regulations 2012 come into force on 6 April 2012. These regulations list the types of waste for which local authorities may make a charge for collection and disposal, and enable them to charge for the disposal of waste arising from a wider range of non-domestic premises, such as hospitals and prisons, than the previous regulations permitted.
Consultations: this week consultations have been published on: