PLC Public Sector reports:
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Employment: the following decisions will be of interest to local authority employment lawyers:
- Following the Local Government Ombudsman’s criticism of the way in which Camden contracted out its school transport services, local authorities should ensure that when contracting out services that are subject to safeguarding duties they:
- Require contractors to appoint staff in accordance with the local authority’s own safeguarding procedures.
- Carry out regular audits of their contractors’ actions to ensure that these continue to meet the authorities’ required standards.
- Those officers who are responsible for taking the decision to dismiss an employee will welcome the Court of Appeal’s decision in Orr v Milton Keynes Council that an employer, when deciding whether it was reasonable to dismiss, cannot be deemed to have knowledge of all facts known to its employees. What is important is that a fair and thorough investigation has been carried out since it is only the facts that are known to the decision-maker that are relevant in determining whether the dismissal was fair.
- The EAT made clear in Bury Metropolitan Borough Council v Hamilton and others and Council of the City of Sunderland v Brennan and others that it is essential for a local authority to establish a genuine material factor defence to equal pay claims brought by female council workers that they were entitled to a productivity bonus that was paid to a predominantly male group. The key issue for a Tribunal is whether the employer can objectively justify the pay differential.
FOI: although information officers will welcome the Upper Tribunal’s decision in DEFRA v Information Commissioner and another that public authorities may later rely on additional different exemptions to those they had initially relied on, they should still consider all potentially applicable exemptions or exceptions early on in the disclosure process since this approach is more likely to lead to a speedy resolution of the request.
Planning: in relation to the government’s intention to abolish regional spatial strategies, which was expressed in a statement and a letter, planning officers will be aware that Cala Homes issued a judicial review application claiming that, when making planning decisions, it was unlawful for planners to consider that intention as a material consideration. However, that application has failed. Although Cala Homes has indicated it intends to appeal the High Court’s decision, those planning officers handling case work covered by regional strategies should continue to follow the advice issued by the Planning Inspectorate that regional strategies remain part of the development plan until they are officially revoked.
Planning lawyers may also be interested in:
- Reviewing the OFT’s market study on outdoor advertising in the light of its own policies, particularly given the OFT’s recommendations and guidance to local authorities to mitigate its concerns that the competition for new contracts which local authorities put out to tender may be weak.
- The common land toolkit which has been published by Natural England.
Public procurement: public procurement officers will welcome the decision of the Supreme Court in Brent London Borough Council v Risk Management Partners Limited holding that the London Boroughs which established a company to provide mutual insurance (LAML) to meet their insurance needs could award contracts directly to the company without infringing procurement law. The decision removes much of the uncertainty around the legality under procurement law of directly awarding contracts to external bodies controlled by the contracting authority, whether alone or in collaboration with other contracting authorities, such as shared services vehicles which are used by public bodies to pool their resources with a view to delivering public services or meeting their administrative requirements more efficiently and at a lower cost.
Lawyers involved in drafting long-term supply agreements, particularly those which provide for the adjustment of product prices during the term of the agreement, should be aware that to be enforceable price review clauses have to be clearly drafted, as set out in Amberley (UK) Ltd v West Sussex County Council. It is not sufficient for a clause to state that the level of fees is subject to review as costs increase.
Procurement officers will be interested in the Scottish Court of Session’s ruling in Healthcare At Home Ltd v The Common Services Agency that, subject to some limited exceptions, relevant information in a successful bidder’s tender document was not sufficiently confidential to outweigh the need for disclosure in order to fairly dispose of proceedings brought by the unsuccessful tenderer.
Social services: those social workers involved in assessing the ages of unaccompanied asylum seekers claiming to be under 17 should be aware that the Court of Appeal in R (FZ) v London Borough of Croydon has suggested a modified procedure for conducting age-assessment interviews given its finding that an applicant should be given a fair and proper opportunity to know the case against them and to have the opportunity at a provisional stage to comment on the authority’s conclusions. Although the Court of Appeal was not advocating a formal “minded to ” letter should be sent, it suggested that social workers should consider withdrawing at the end of their initial interview with the applicant to discuss their provisional conclusions. These, together with brief reasons, should be put in writing and then provided to the applicant there and then so that the applicant could deal with any adverse points immediately or state that more time is needed. The social workers should then withdraw again to consider the applicant’s answers and reach their decision.
Consultations: this week consultations have been launched on: