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.
Employment: employment lawyers should note the following decisions:
- In Fecitt and others v NHS Manchester, the Employment Appeal Tribunal (EAT) held that in a whistleblowing detriment case an employer will not be liable if it can show that the detriment was not on the grounds of protected disclosure. This is a departure from previous case law.
- The EAT has given guidance on when witness statements should be read out at hearings in Mehta v Child Support Agency.
Pensions: the Pensions Ombudsman in Lane has awarded a scheme member compensation after finding that her annual pension was less than a third of the sum she expected. However, the Ombudsman did state that awarding damages for disappointment is unlikely to be normal practice and in this instance reflected the “unusual and extreme circumstances” in the case.
Licensing: officers involved in licensing issues should familiarise themselves with the new forms that have been prescribed in new regulations, which come into force on 1 January 2011.
Members: local authorities should familiarise themselves with the latest information that the Department for Communities and Local Government has provided on its plans to abolish the Standards Board regime. In particular, they should consider whether they wish to establish voluntary standards committees with a remit to consider complaints about the conduct of elected and co-opted members given that there will be no requirement for them to maintain a standards committee.
Housing: housing officers and those involved in conducting reviews of eligibility for housing assistance under section 202 of the Housing Act 1996 (HA 1996) should take note of the decision in Hussain v The London Borough of Hounslow. The decision concerned whether Hounslow’s decision to refuse assistance to the applicant, following an internal appeal, on the basis that she did not have a priority need because she was not vulnerable was correct. The decision focuses on the issues that should be considered by reviewing officers when reviewing a decision by a local authority to refuse assistance on the grounds that the applicant does not have a priority need under sections 189 and 192 of the HA 1996 and demonstrates that it is essential when drafting a review decision letter to clearly set out every piece of evidence available to the decision-maker and which has been considered in reaching the decision.
Planning: planning lawyers and officers should:
- Take note of a recent decision by the Local Government Ombudsman holding that Christchurch Borough Council’s decision that proposed amendments to a planning application to a housing development were only minor constituted maladministration. The Council had failed to keep adequate records of the reasons behind its decision to hold that the amendments were only minor and therefore denied the complainant’s the opportunity to comment on the them. This decision is a reminder to local authorities to ensure that when dealing with proposed amendments to planning applications they keep full and accurate records of their decision-making and fully consider any impact that the proposals could have on neighbouring properties.
- Consider the latest statement from the Planning Inspectorate that, when determining a planning application, they will need to consider whether the fact that a legal challenge has been mounted to the immateriality of previous statements made by the Secretary of State and the Planning Inspectorate letter that the Localism Bill will revoke Regional Strategies, affects the weight and significance that they should attach to these documents.
- Note that the Court of Appeal has confirmed in R(Siraj) v Kirklees Metropolitan Council and another that when the summary reasons given by a local planning authority for granting planning permission are adequate, then the fact that a different planning authority may have reached a different decision does not make their decision perverse and open to challenge. This case is a reminder that planning authorities should consider each case on its own merits and not according to a set formula.
Freedom of information: information lawyers will find the following decisions of interest:
- In Edwards v Information Commissioner (EA/2010/0056), the First-tier Tribunal (Information Rights) (FTT) held that under rules 2 and 5 of the Tribunal Procedure (First-tier Tribunal) General Regulatory Chamber Rules 2009 it was able to strike out an appeal that had become “academic” as the information requested had been already been disclosed as part of its duty to ensure that cases are dealt with a proportionate manner.
- A decision of the Upper Tribunal, holding that an applicant could appeal against a decision notice even though the Information Commissioner had issued a decision notice in his favour and his appeal was out of time. Although it went against the well-established principle that a successful party should not be permitted to appeal, the Upper Tribunal held that FOIA was not a barrier to a successful party appealing, since section 57(1) expressly conferred a right of appeal on both parties and not simply the losing party.
The Department of Health has also published supplementary guidance for the NHS on public interest disclosures. This will be of interest to NHS staff responsible for make decisions about sharing confidential patient information.
Public procurement: public procurement lawyers should note:
- That in lifting an automatic suspension of a contact award procedure for the first time, the High Court treated the application as though it were an injunction by the disappointed tenderer and applied the standard American Cynamid test.
- That the government has published its core pre-qualification questions, which are mandated for use by all central government departments and must be fully adopted by 1 January 2011.
- The recommendations of HM Treasury on how the competitive dialogue procedure should be used.
They will also be interested in Lancashire County Council’s successful appeal against a damages award made against it in respect of a contested evaluation process.
Welfare Reform: regulations have been made that confer a new legal right for disabled people in the specified pilot scheme areas to have choice and control over the publicly funded services which they receive. Therefore, those authorities which are involved in the two-year pilot scheme should familiarise themselves with the framework for making direct payments and their obligations to promote the Right to Control within the disabled community.
Consultations: this week there have been consultations on: