REUTERS | Dani Cardona

Local government quarterly digest (November 2015 – January 2016)

This is the latest in our series of quarterly local government update blogs, which will enable readers to catch up on the most important cases, issues or developments in local government from November 2015 to January 2016.

Please feel free to submit a comment below or send us an Ask query if you have any views on the cases, issues, or legal developments covered or if you think we have missed something that should be brought to the attention of local government practitioners.

In this post we look at:

  • Cases of interest to local authorities.
  • Various legislative and other developments of interest to local authority lawyers.


Local health boards in Wales can set funded nursing care rates (Forge Care Homes Limited v Cardiff and Vale University Health Board)

The Court of Appeal has allowed the appeal of the appellant local health boards in Wales (LHBs) against the High Court’s decision quashing the LHBs’ determination of the rates to be paid for nursing care provided to certain residents in care homes. The issue was the proper construction of section 49(2) of the Health and Social Care Act 2001 and the extent of the NHS’s liability (through LHBs) to fund care home residents’ NHS Funded Nursing Care.

Test for permission to appeal age-assessment cases set out by the Court of Appeal (R (FZ) v London Borough of Croydon)

The appellant was an unaccompanied asylum seeker who claimed he was under 17 years old. He was referred to the London Borough of Croydon, which concluded the appellant was two years older following an age assessment review. The appellant, therefore, applied for permission to bring judicial review proceedings challenging the council’s decision.

The deputy High Court judge hearing the application for permission to apply for judicial review held there was no realistic prospect that, at a substantive fact-finding hearing, the court would conclude the claimant was younger than the council determined. Although there were procedural flaws in the assessment process, he considered the age assessment would not be quashed on procedural points alone and, therefore, refused permission.

On appeal, the Court of Appeal held a claimant seeking permission to appeal a local authority’s age assessment must show a properly arguable case on the facts and the evidence before the court. It considered the appellant’s case could succeed in a contested factual hearing and, therefore, allowed the appeal.

Local authorities involved in decisions relating to age-assessment cases should review the decision in this case and consider modifying their procedures for conducting age-assessment interviews, particularly given there is no formal central government guidance on how they should do so. The modification suggested by the Court of Appeal was for the social workers undertaking the age assessment to withdraw at the end of the initial interview to discuss their provisional conclusions. These should then be put in writing with brief reasons and provided to the applicant who can deal with any adverse points immediately or state more time is needed. The social workers can then withdraw again to consider the applicant’s answers and reach their decision.

High Court orders fresh hearing after council wins street naming appeal (Basildon Borough Council v James)

The High Court has held that the district judge hearing a street naming appeal under section 8 of the Public Health Act 1925 (PHA 1925) had applied the wrong test and that the matter should be remitted back to him for reconsideration. Basildon Borough Council had explained its justification for the renaming of the estate; the district judge was obliged to pay great attention to the opinion of the council as the duly constituted and elected local authority and should not lightly reverse the council’s decision. His function was to exercise the section 8 powers only if he was satisfied that the judgment of the council could be shown to be wrong, not merely because he was not satisfied that the judgment was right. Only if the district judge was first satisfied that the council was wrong, was it appropriate for him to substitute his opinion for that of the council.

The case is of interest given that there is no reported authority on the proper construction of sections 8 and 18 of the PHA 1925. The decision clarifies that the starting point has to be the words of the statute. What is apparent from the decision is that the district judge went wrong in assuming that the wording of the section entitles the court, hearing the appeal, “to make such order .. as it considers reasonable”. The statute did not give the district judge an original jurisdiction so as to make him the primary decision-maker as to whether or not to alter the street name.

Council’s removal of refurbishment options during its consultation process on housing stock unlawful (Bokrosova v London Borough of Lambeth)

The High Court has held that a decision of the London Borough of Lambeth to stop consulting on three refurbishment options for a 1960s housing estate and to focus on its option for regeneration with either partial or full demolition only was unlawful. The council did so on the basis that the lowest cost for refurbishment was still three times what the council could afford.

The decision in this case reiterates the importance of getting a consultation right given that the council will have to reconsult in relation to its refurbishment options for the estate and take a new report to Cabinet covering all five of the options that it put forward. Although the court held that the council’s decision to reject three of the options in its consultation document without completing the process that it had advertised to tenants was unlawful, the judgment suggests that if there had been a sufficiently important change of circumstances, the council would have been entitled to stop consulting on the three options relating to refurbishment.

Council’s decision that it had no obligation under section 17 of the Children Act 1989 to accommodate two children and their mother unlawful (PK v Harrow Council)

The High Court has held that the London Borough of Harrow’s decision not to provide assistance under section 17 of the Children Act 1989 (CA 1989) to two children who had been made homeless with their mother was unlawful.

Although the authority acknowledged that it had an obligation to provide accommodation to the two children under section 20 of the CA 1989, it did not accept that it had an obligation to accommodate their mother. As the effect of its decision would have been to separate the children from their mother, the decision was challenged on the basis that it was:

  • In breach of the children’s best interests under section 11 of the Children Act 2004.
  • A violation of the children’s rights under Article 8 of the European Convention on Human Rights.

Council tax scheme not discriminatory but evidence found of lack of “due regard” to PSED (R (Logan) v London Borough of Havering)

The High Court has held that changes to a council tax scheme (CTS) introduced by the London Borough of Havering were not discriminatory for the purposes of the public sector equality duty (PSED) under the Equality Act 2010 and Articles 1 of the First Protocol and 14 of the European Convention on Human Rights. However, the court did find that there had been a failure by the full council to have due regard to the PSED because not every member of the council had been provided with a report and accompanying equality impact assessment looking at the possible adverse impact of the changes.

This case is a useful reminder to local authorities making decisions about the importance of ensuring that all decision-makers have had sight of and had an opportunity to look at key reports and documents.


We have published an update summarising the developments relevant to those in local government that are expected to take place in 2016 containing links to relevant Practical Law coverage and materials.

We have published two new Practice notes on civil injunctions and criminal behaviour orders under the Anti-social Behaviour, Crime and Policing Act 2014.

On 25 January 2016 the House of Commons Communities and Local Government Committee published its First Report of Session 2015-16, Devolution: the next five years and beyond.

The report covers topics including:

  • The objectives of, and approach to, devolution.
  • Agreed devolution deals and the key themes from the bids, negotiation and agreement of these deals.
  • The implications of devolution for governance and accountability.

On 22 January 2016, the House of Commons Library published an updated version of its briefing paper on the proposals for a British Bill of Rights, which was originally published on 19 May 2015 and covers the background to the proposals for a British Bill of Rights and some of the debates surrounding the issue.

On 20 January 2016, the Local Area Referendum (Disposal of School Playing Fields) Bill 2015-16 was published. The Private Members Bill had originally been introduced to Parliament on 29 June 2015. It started its second reading on 22 January 2016.

On 15 January 2016 the House of Commons Library published a briefing paper on devolution to local government in England, which replaces the Standard Note published in November 2014.

On 14 January 2016, the Cabinet Office published updated guidance on consultation principles, as part of its commitment under the Civil Service Reform Plan to improve policy making and implementation, with greater transparency and engagement.

On 20 December 2015, HM Treasury published a further consultation on draft regulations allowing for the recovery of exit payments when a high earner returns to the public sector shortly after exit.

On 18 December 2015, the House of Commons Library published a briefing paper on assets of community value.

On 18 December 2015, the government published its response to the March 2015 consultation inviting views on legislative proposals to create a proposed single public services ombudsman for England.

On 17 December 2015, the Cabinet Office published Public Bodies 2015, the annual update for 2015 of its list of government-sponsored public bodies.

On 16 December 2015, the Department for Culture Media and Sport published guidance on the legal duty of local authorities under section 7 of the Public Libraries and Museums Act 1964 to provide a comprehensive and efficient library service.



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