Practical Law

Central government: lawyers specialising in public and administrative law will be interested in the Supreme Court’s confirmation of the basic principle of administrative law that a discretionary power must not be used to frustrate the object of an Act.  In RM v The Scottish Ministers (Scotland), the Supreme Court held that the Scottish Ministers’ failure to make regulations under the Mental Health (Care and Treatment) (Scotland) Act 2003 had thwarted the intention of the Scottish Parliament and was therefore unlawful.

Education: admission authorities will be interested in the report on school admissions that has been published by the Office of the Schools Adjudicator.

Employment: employment lawyers should note the:

• Decision of the EAT that an employee’s service under two contracts of employment with the same employer was continuous even though their work under the second contract started more than a week after the end of the first contract.
• EAT’s finding that a tribunal had wrongly interpreted the statutory test for compensating a claimant for the financial loss suffered as a consequence of his dismissal. To prevent double recovery, the tribunal should have deducted the settlement payment that the claimant received from the second respondent from the unfair dismissal compensatory award that was made against the unsuccessful first respondent.
• EAT has given general guidance about the factors that the tribunal is entitled to take into account when considering the effect of valid warnings on the fairness of a conduct dismissal.

Equality Act 2010: anyone advising on the Equality Act 2010 should be aware that:

• The Equality Act 2010 (Amendment) Regulations 2012 will come into force on 21 December 2012 and mean that from that date providers of insurance and related financial service may not discriminate on the grounds of sex.
• The government has announced further details on the review of the public sector equality duty, including its terms of reference. 

FOIA and data protection: information lawyers will be interested in the:

• Impact assessment that the government has published on the European Commission’s proposals for data protection.
• Government’s response to the Justice Committee’s post-legislative scrutiny of the Freedom of Information Act 2000.

Housing: housing lawyers should be aware that the High Court in Southend on Sea Borough Council v Armour has reaffirmed the principle that it is possible for a court, in possession proceedings issued by a local authority, to take into account the good behaviour of a tenant subsequent to the initial complaint. The High Court also held that the court’s role, where an Article 8 defence is raised, is to carry out a balancing exercise between the duties and obligations of the local authority towards its tenants and the personal circumstances of the tenant when deciding whether it is proportionate to grant the possession order.

Local government: local government lawyers may wish to read the guidance on the administration of localising support for council tax, published by the Department for Communities and Local Government.

Procurement: procurement officers will be interested in:

• The European Court of Justice’s ruling on the conditions for applying the “in-house” exception to the application of the public procurement rules where a local authority only has a minority shareholding in the in-house service provider.
• The Chancellor of the Exchequer’s Autumn Statement, which included details of the government’s new approach to PFI and involving private finance in the delivery of public infrastructures and services.

Property and planning: planning lawyers should be aware that:

• The Community Infrastructure Levy (Amendment) Regulations 2012 came into force on 29 November 2012. The regulations amend the Community Infrastructure Regulations 2010 (SI 2010/948) to remedy the potential double charge of Community Infrastructure Levy applying to planning permissions granted under section 73 of the Town and Country Planning Act 1990.
• The High Court has held that partial payment of a planning application fee did not invalidate the prior approval application for a barn.

Regulation and enforcement: parking enforcement officials should note that the High Court has refused a judicial review challenge to a Regulation 9 penalty charge notice that used specimen wording issued by the Independent Committee on the Review of Parking Documentation (R (Hackney Drivers Association Ltd) v Parking Adjudicator and another).

Safeguarding: officers responsible for vetting individuals who work with children should be aware that on 1 December 2012 the Criminal Records Bureau and Independent Safeguarding Authority merged to form the Disclosure and Barring Service.

Consultations: this week, consultations were published on:

• New measures that could be introduced to protect those who rely on care services if their care providers fail.
• The proposed changes to enable Ofsted to share the names and addresses of children’s homes with the police, the Secretary of State for Education and the Office of the Children’s Commissioner.
• Restrictions on alcohol sales.
• Establishing a separate jurisdiction for Wales, in a second call for evidence by the Welsh Government.
• The Welsh Government’s proposal to introduce penalty notices for persistent school non-attendance.
• The Welsh Government’s Sustainable Development White Paper.