Authority Update 11/5/18

Recent legal and policy developments relevant to those working with the local government sector

14/05/2018

Claire Booth

Claire Booth

Professional Support Lawyer

This update contains brief details of recent Government publications, legislation, cases and other developments relevant to those involved in local government work, which have been published in the previous two weeks. Items are set out by subject, with a link to where the full document can be found on the internet.

If you have been forwarded this update by a colleague and would like to receive it direct please email Claire Booth.

All links are correct at the date of publication. The following topics are covered in this update: 

   Access to Information    Government Policy
   Adult Social Services    Highways
   Business Rates    Housing
   Children's Services    Judicial Review
   Combined Authorities    Powers and Duties
   Commons and Village Greens    Procurement
   Development Control    Public Health
   Education    Regulatory Services
   Fire and Rescue Authorities    Standards
   Governance  

Access to Information

ICO: Draft Regulatory Action Policy: seeks views on the ICO's draft revised policy on how it regulates data protection laws. The revised policy sets out a risk-based approach to taking regulatory action against organisations and individuals that have breached the provisions of the upcoming Data Protection Act 2018, the General Data Protection Regulation, Privacy and Electronic Communications Regulations (EC Directive) Regulations 2003, the Freedom of Information Act 2000 and related legislation. It focuses on areas of highest risk and most harm and the principles it applies in exercising its powers. The consultation closes on 28 June 2018. (4 May 2018)

Servis v Newham LBC (Unreported, QBD): S applied for a review of the suitability of her temporary accommodation. The Council had entered into an outsourcing arrangement for homelessness reviews and the review officer concluded that the accommodation was suitable for her. S appealed and sought disclosure of the arrangements for the contracting-out of homelessness reviews. The Council disclosed a cabinet report and minute relating to the contracting-out of homelessness functions but declined to disclose the relevant agreement. The judge refused the application for specific disclosure on the basis that the document sought was not relevant to the grounds of appeal and because it was made too late.
The court held, dismissing S's appeal, that the judge had been right to refuse the application for specific disclosure of the outsourcing agreement. There was no issue in the grounds of appeal as to the authority of the decision maker to conduct the review. There was no prima facie case of any lack of authority arising from the cabinet report and minute that had been disclosed and no application to amend the grounds of appeal. The appeal was based on the information that the reviewing officer had or did not have when finding that the temporary accommodation was suitable; it was not based on what the reviewing officer might have been entitled to from the Council under the outsourcing agreement. That was speculative. It was not necessary to consider the issue of delay. (1 May 2018)
The judgment is available on Lawtel (subscription required).

If you wish to discuss any of the items noted in this section please contact Jonathan Moore.

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Adult Social Services

LGA: Home ownership for people with long-term disabilities (HOLD) factbook: this factbook is about the HOLD shared ownership scheme that enables people with a long term disability to share in the ownership of their home with a housing association. It was developed to support those professionals who are working with people with a learning disability, autism or both as part of the Transforming Care programme. However, shared home ownership is a possible option for a much wider range of people so this guide is relevant to other professionals too. (30 April 2018)

If you wish to discuss any of the items noted in this section please contact Kirtpal Kaur Aujla.

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Business Rates

MHCLG: Business Rates Information Letter (3/2018) Business Rates Bill and Additional Information: this information letter covers: Rating (Properties in Commons Occupation) and Council Tax (Empty Dwellings) Bill; new fibre telecommunications relief; rating appeals: end of list arrangements; and compensation arrangements for the Budget 2017 rates relief schemes. (8 May 2018)

If you wish to discuss any of the items noted in this section please contact Judith Barnes.

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Children's Services

Independent Inquiry into Child Sexual Abuse: Interim report: this report sets out what the Chair Prof. Alexis Jay, and the Panel consider to be the key emerging themes from the Inquiry’s work to date. The report identifies our reluctance as a society to discuss child sexual abuse openly and frankly and calls for this to be addressed.  It also identifies the lack of transparency by some leaders on the failure of their institutions to protect children from sexual abuse. It contains clear accounts of child sexual abuse and the profound and lifelong impact it has on them. The Chair and Panel have identified steps which they consider will better protect children from sexual abuse and have made 18 new recommendations to government, the police and others. (25 April 2018)

DfE: Prevention of homelessness and provision of accommodation for 16 and 17 year old young people who may be homeless and/or require accommodation: revised statutory guidance setting out the respective duties of children’s services and housing services under Part 3 of the Children Act 1989 and Part 7 of the Housing Act 1996 to secure or provide accommodation for 16 and 17 year old children who are homeless or in need of accommodation. The guidance was originally issued following the judgment by the House of Lords in the case of R (G) v London Borough of Southwark (2009). It has now been updated to reflect changes in homelessness and children’s legislation. (30 April 2018)

DfE: Consultation on the revised statutory guidance for local authorities on family and friends care: seeks views on revised guidance to local authorities on fulfilling their role in circumstances where asylum seeking children are being brought to the UK under the Dublin III Regulation to live with family or relatives. It advises on duties in the Children Act 1989 in respect of children and young people who, because they are unable to live with their parents, are being brought up by members of their extended families, friends or other people who are connected to them. The consultation closes on 4 July 2018. (10 May 2018)

LGA: Children’s services funding: the amount of money that local authorities receive and spend on children’s services has been debated frequently. This briefing sets out the LGA’s key messages on the subject and its analysis of council revenue account budgets. It has been drafted in advance of a discussion during oral questions in Parliament on children’s services funding.  (3 May 2018)

LGA: Youth justice resource pack: local authorities are responsible for the safety and wellbeing of all young people in their areas, which includes working with young people to prevent them from coming into the youth justice system in the first place, and supporting those who do to make sure it doesn’t define them, and they still have good life chances. While local authorities have no direct control over most custodial institutions, this pack outlines some of the ways in which they can support young people in custody. The LGA says it will continue to lobby the Government for improved safety in youth custodial institutions. (3 May 2018)

DfE: Statutory Direction to Croydon Borough Council in relation to children’s services under Section 497A(4b) of the Education Act 1996: the Secretary of State has issued a revised Direction requiring Croydon LBC to cooperate with Camden LBC in an intensive peer-support arrangement to improve the quality of practice in children’s social care services. (8 May 2018)

Education Policy Institute: Vulnerable children and social care in England – A review of the evidence: new research from the EPI examines the state of the children’s social care system in England. It brings together the latest data on children in need, intervention rates, staffing levels and funding provision. (30 April 2018)

Children’s Homes (England) (Amendment) Regulations 2018 (SI 2018/540): these regulations, which come into force on 22 May 2018, amend the exception in SI 2015/541 which prevents a 16 to 19 academy from being considered a children’s home. They remove a 16 to 19 academy which is also approved for providing secure accommodation from this exception so that it can be a children’s home under the Care Standards Act 2000 where it is also approved for providing accommodation for the purpose of restricting the liberty of children. This amendment is necessary to enable secure schools, set up as academies, to be approved as secure children’s homes (SCHs) that restrict the liberty of children serving their sentence. (30 April 2018)

Special Guardianship (Wales) (Amendment) Regulations 2018 (SI 2018/573 (W.102)): these regulations, which come into effect on 2 July 2018, amend SI 2005/1513 (W.117) relating to special guardianship support services. (2 May 2018)

If you wish to discuss any of the items noted in this section please contact Kirtpal Kaur Aujla.

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Combined Authorities

Combined Authorities (Borrowing) Regulations 2018 (SI 2018/565): these regulations, which come into force on 4 May 2018,  extend the borrowing powers of mayoral Combined Authorities in England which have agreed debt caps with HM Treasury. They confer additional borrowing powers on each CA to allow them to borrow in respect of all their existing functions. These further functions vary, as each CA has a bespoke set of powers depending on the devolution deals that were negotiated with the Government, but generally they relate to housing, regeneration and economic development. The Explanatory Memorandum lists for each CA the functions for which they may now borrow. (3 May 2018)

If you wish to discuss any of the items noted in this section please contact Judith Barnes.

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Commons and Village Greens

R (Cotham School) v Bristol City Council [2018] EWHC 1022 (Admin) (Admin Ct): the School applied to quash the Council's decision to register an area of land of approximately 22 acres as a town or village green under s.15 of the Commons Act 2006. Avon CC had owned the land until local government reorganisation in 1974, when the land vested in Bristol City Council. Large parts of the land were laid out as playing fields and were used by local schools and sports clubs. There were signs at three entrances to the land marked "Avon County Council" warning the public "not to trespass on the playing field".  Since 2011, the School had occupied the land under a 125 year lease but it was accepted that the lease was no bar to the registration of the land as a green. The independent inspector had recommended that the land should not be registered as a green, finding that one aspect of the statutory test for registration, namely user "as of right", had not been satisfied, as he considered that the three Avon CC signs were at the time of their erection sufficient to make the use of the land contentious. The inspector relied on the decision in Winterburn v Bennett [2016] EWCA Civ 482 in coming to his decision. The Council's officer recommended that the Public Rights of Way and Greens Committee should accept the inspector's recommendation, but the Committee resolved, on the Chair's casting vote, to reject the inspector's recommendation and to grant the application for registration. The Committee stated in its reasons that it accepted the inspector's findings that all the elements of the statutory test were proven on the balance of probabilities but considered that the facts of Winterburn were not the same as in this case, and the small numbers of signs on such a large site was not sufficient to make the use of the land contentious. The School applied to quash the Committee's decision, alleging that it was vitiated by legal errors.
The court held, granting the application, that the Committee had acted unlawfully. The inspector's analysis of the law relating to the phrase "as of right" was correct. He was also correct when he concluded that the use of land by local inhabitants would be made contentious by the erection of sufficient and suitably placed signs which were visible to users of the land and which had been seen by a significant number of persons using the land. Having accepted a crucial finding by the inspector as to the legal significance of the signs when they were first erected, the Committee had failed, erroneously and unlawfully, to analyse the evidence and the further findings of the inspector as to when, if at all, the situation "on the ground" had changed materially so that the signs were no longer sufficient to make the local inhabitants' use of the land contentious. The Committee's decision was that this case was very different on the facts from Winterburn but that was no basis upon which to depart from the inspector's conclusions, given that both the inspector and the Committee agreed as to the legal significance of the signs when Avon CC first erected them. There was no evidence that the Committee had grappled with, let alone given reasons, for the inconsistency between its ultimate view about the sufficiency of the signs and its finding that the signs, as erected, were sufficient to make the use of the land contentious. On the issue of permission, the inspector was entitled to conclude that the local inhabitants had not used the land with the permission of the landowner and had given adequate reasons for concluding that the use of the land by the local inhabitants was not permissive.
The court also considered the issue of statutory incompatibility and ruled that the legislative provisions relating to the disposal of playing field land held for the purposes of an academy did not preclude the registration of such land as a town or village green. (3 May 2018)

If you wish to discuss any of the items noted in this section please contact Kathryn Lawrance.

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Development Control

MHCLG: Government response to the consultation on pre-commencement conditions regulations: sets out the Government's response to the January 2018 consultation on draft regulations which create an exemption to the requirement in s.100ZA TCPA 1990 (inserted by the Neighbourhood Planning Act 2017) that local planning authorities obtain the written agreement of an applicant before imposing a pre-commencement condition on a grant of planning permission. Following the consultation, the Government has now made the Town and Country Planning (Pre-commencement Conditions) Regulations 2018 (SI 2018/566), in force 1 October 2018, which prescribe the circumstances when permission for the development of land may be granted by the local planning authority (or Secretary of State, as the case may be) subject to a pre-commencement condition without the written agreement of the applicant to the terms of the condition. (8 May 2018)

Welsh Government: Changes to the approval of infrastructure development: seeks views on proposals to establish a new process for the approval of infrastructure development in Wales, and interim arrangements until a new process to approve infrastructure development is in place, and also reforms to compulsory purchase in Wales. The consultation closes on 23 July 2018. (30 April 2018)

If you wish to discuss any of the items noted in this section please contact Kathryn Lawrance.

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Education

DfE: Education Secretary to set out vision for "clearer" school system: announces that the Government is to consult on replacing the “confusing” system of having both floor and coasting standards to measure school performance, with a single measure to trigger support for schools. This will be backed by a clear statement on when schools convert to academy status to drive improvement. (4 May 2018)

DfE: Schools that work for everyone: sets out the Government's response to the 2016 consultation on creating more school places. It sets out the Government's plans to enable the creation of new selective schools and to lift the restrictions on faith admissions in new free schools.
The Government has also launched a new Selective Schools Expansion Fund, with £50m available for 2018/19 so that existing selective schools can expand their premises to create more places, and also a new wave of free school applications that will target areas where there is a demand for places and a need to help raise school standards. (11 May 2018)

DfE: Boost in support for children with additional needs: announces new measures to boost support for children and young people with additional needs. These include three new contracts to boost support for children with special educational needs and disabilities (SEND) and their families. (10 May 2018)

DfE: Strengthening qualified teacher status and career progression: sets out the Government's response to the December 2017 consultation on a range of proposals for ensuring teachers have the right support in place at the beginning of their careers, improving access to high-quality professional development, and improving progression opportunities for all teachers throughout their careers. This response is the first stage of a longer-term programme of work. This document sets out some key decisions and outlines how DfE are going to work with the teaching profession to make the next set of decisions. It will publish the next phase of work to align with wider work around the recruitment and retention strategy. (4 May 2018)

If you wish to discuss any of the items noted in this section please contact Rosie Tabrizi.

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Fire and Rescue Authorities

Home Office: Fire and rescue national framework for England: this revised Framework sets out the priorities and objectives for fire and rescue authorities in England. It has been revised to take account of the fire reform programme, such as the creation of the Fire and Rescue Services Inspectorate and the National Fire Chiefs Council and its work programme, and also provisions in the Policing and Crime Act 2017 on emergency services collaboration and enabling mayors and PCCs to take on responsibility for their fire and rescue service. It is brought into effect by the Fire and Rescue Authorities (National Framework) (England) Order 2018 (SI 2018/560). Every FRA must have regard to the Framework in carrying out their functions, and every authority must publish an annual statement of assurance of compliance with the Framework. (8 May 2018)

If you wish to discuss any of the items noted in this section please contact Frances Woodhead.

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Governance

MHCLG: James Brokenshire appoints commissioners to Northamptonshire County Council: the Local Government Secretary has announced that he is sending commissioners into Northamptonshire CC to ensure residents receive the high quality services they need and deserve. The Commissioners are Tony McArdle, former Chief Executive of Lincolnshire CC and  Brian Roberts, former Deputy Chief Executive of Leicestershire CC, and an expert in financial management. The Secretary of State's Directions appoint the Commissioners and set out their formal powers regarding the Council's functions associated with governance and scrutiny, appointment of statutory officers and strategic financial management. The Directions remain in force until 31 March 2021 or until amended or revoked. The Council is directed to comply with the Commissioners. (10 May 2018)

If you wish to discuss any of the items noted in this section please contact Judith Barnes.

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Government Policy

MHCLG: New Housing Secretary appointed: announces that James Brokenshire MP has been appointed as Secretary of State for Housing, Communities and Local Government, following Sajid Javid's move to the Home Office. He comments that "as the son of a former chief executive of a council, local government is in the blood for me. So I look forward to working with councils across the country by supporting them to deliver quality public services and build strong integrated communities." (30 April 2018)

If you wish to discuss any of the items noted in this section please contact Judith Barnes.

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Highways

Welsh Government: Welsh Government support following snow storms: the Welsh Economy and transport Secretary has announced that local authorities will receive £2.5m funding to offset costs incurred in dealing with the recent snow, including those incurred for highway authorities’ gritting and snow clearance operations and salt purchasing. (24 April 2018)

Sumner v Colborne and Denbighshire CC [2018] EWCA Civ 1006 (CA): in a negligence claim arising out of a road traffic accident, the court has held that a highways authority does not have a duty of care in respect of vegetation on land at a road junction (i.e. vegetation not itself on or over the highway) that impaired visibility for users of the highway.
S, a cyclist on a main road, was hit by C's car that was emerging from a minor road. He contended that visibility at the junction was severely restricted by vegetation on a fenced-off parcel of land bordering the junction, and claimed that the Council and the Welsh Ministers were in breach of their duty of care by allowing vegetation to grow and obstruct visibility unless properly maintained. The judge accepted the defendants' argument that that the relevant duty of care to users of the highway related to the creation of dangers on the highway, not to the creation of dangers on land adjacent to the highway.
The court held, dismissing S's appeal, that it would not be just, fair and reasonable to find a duty of care in such circumstances. Applying Stovin v Wise [1996] AC 923 and Gorringe v Calderdale MBC [2004] 1 WLR 1057, failure to cut back vegetation so as to prevent it from obstructing visibility did not give rise to a liability in negligence; that position was not affected by the fact that the Council had carried out work of maintenance on the vegetation in the past. Even if the Welsh Ministers were under a duty of care by reason of their positive act, there was no corresponding basis for the claim against the Council. The court distinguished the decision in Yetkin v Mahmood [2010] EWCA Civ 776, as that was concerned specifically with the creation and maintenance of a crossing facility on the highway, whereas the positive act relied on in this case related to things done on land adjacent to the highway, and the vegetation complained of was on that land and not on the highway. The imposition of a duty of care on owners of land to ensure that vegetation in their fields and gardens did not affect sightlines on neighbouring highways would be profound and would extend to the erection of buildings, fences and other structures that might affect visibility on the highway. Planning controls and  highway authorities' powers provided a range of public law powers for dealing with these matters in appropriate cases. The court should be slow to supplement them by way of an onerous duty of care in private law. The road network was imperfect and drivers had to take it as they found it. (4 May 2018)

If you wish to discuss any of the items noted in this section please contact Jonathan Turner.

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Housing

MHCLG: Housing Secretary James Brokenshire awards funding to reduce rough sleeping: announces £25.3m funding to Greater Manchester, Liverpool and the West Midlands Combined Authorities to support pilot projects that will offer individuals intensive support to recover from complex health issues, for example substance abuse and mental health difficulties and sustain their tenancies. The projects will be based on Housing First, an approach to tackling long-term rough sleeping that puts the emphasis on finding individuals a secure and affordable home to live in, while providing them with expert support to rebuild their lives. (9 May 2018)

Parkhurst Road Ltd v Secretary of State for Communities and Local Government and Islington LBC [2018] EWHC 991 (Admin) (Admin Ct): PRL, a developer, applied for judicial review of the planning inspector's dismissal of the Council's refusal to grant planning permission for the redevelopment of a former Territorial Army Centre. PRL's original proposal for a residential scheme for 112 homes, including 16 affordable units, was refused on grounds of serious harm to the character and appearance of the area. The Council also argued that the proposed proportion of affordable housing was inadequate, as it did not comply with the local policy that each scheme provided the "maximum reasonable amount of affordable housing" in the context of an overall affordable housing target of 50% of all new housing, and it raised concerns over the inspector's approach to viability assessment. PRL then reduced the scale of the scheme to 96 units, but this was again rejected because it failed to meet the affordable housing target and because of the lack of adequate Section 106 obligations to mitigate the effects of the development. The inspector dismissed PRL's appeal on the basis that the revised scheme failed to give adequate effect to policy requirements for affordable housing.
The court held, dismissing the appeal, that it was clear that the proposal would not provide the maximum reasonable level of affordable housing in accordance with Local Plan Policies, not even when considering PRL's proposed provision of 10% by unit which it considered to be unviable. The court noted that it was important to ensure that new development was sustainable, delivering the maximum reasonable level of affordable housing in all cases so as to meet the needs of all. PRL's argument that no affordable housing would come forward if planning permission were refused could be applied to any residential case and was not justification for allowing development that did not properly meet policy requirements and objectives.
It commented that this case strikingly illustrated the importance of seeking to overcome uncertainty on how viability assessments should properly be carried out. The High Court was not the appropriate forum for resolving issues of this kind. RICS should consider revisiting its 2012 Professional Guidance: Financial Viability in Planning in order to address any misunderstandings about market valuation concepts and techniques, the "circularity" issue and any other problems encountered in practice over the last six years, so as to help avoid protracted disputes of the kind seen in this case and achieve more efficient decision-making. (27 April 2018)

If you wish to discuss any of the items noted in this section please contact Matthew Waters.

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Judicial Review

Sandwell MBC: Former councillor ordered to pay almost £140,000 over failed judicial review: reports that Mahboob Hussain, the Council’s deputy leader, has been ordered to pay almost £140,000 in costs, interest and court fees after he lost a judicial review over the publication of an independent investigation into allegations that he had abused his position as a councillor. (9 May 2018)

R (Goring-On-Thames Parish Council) v South Oxfordshire DC [2018] EWCA Civ 860 (CA): in this appeal relating to the Council's grant of planning permission for a hydroelectric turbine development on the River Thames, the court advised on the principles to be applied to applications under CPR 52.30 to re-open a decision refusing permission to appeal on the papers.
The court held that the court's jurisdiction under CPR 52.30 was tightly constrained and was "exceptional" in the sense that it would be engaged only where some obvious and egregious error had occurred in the underlying proceedings and that error had vitiated – or corrupted – the very process itself. The CPR 52.30 jurisdiction would never be engaged simply because it might be suggested that the decision in the underlying proceedings, whether it be a decision on a substantive appeal or a decision on an application for permission to appeal, was wrong. An application for permission to appeal to the Court of Appeal would be determined on paper without an oral hearing, except where the judge considering the application on paper directed that the application was to be dealt with at an oral hearing. CPR 52.30 did not provide a default procedure for challenging the court's decision to refuse the application for permission to appeal, whether on paper or at an oral hearing. When determining an application for permission to appeal on paper, if the decision was to refuse permission, the Lord or Lady Justice had a duty to address in his or her reasons the essential issues raised in the applicant's grounds of appeal so that the applicant was able to understand why, on the appropriate test under the rules, the intended appeal was not being permitted to proceed. A corollary of that principle was that advocates settling grounds of appeal ought to take care to draft each ground crisply and clearly as a properly formulated ground of appeal. (25 April 2018)

R (Adath Yisroel Burial Society) v HM Senior Coroner for Inner North London [2018] EWHC 969 (Admin) (Admin Ct): the Society was a charitable organisation responsible for managing and facilitating the burials of a large proportion of the orthodox Jewish population in Inner North London. It applied for judicial review of the Coroner's decision to adopt a policy that "No death will be prioritised in any way over any other because of the religion of the deceased or family, either by the coroner's officers or coroners". The Society argued that this fettered the Coroner's discretion to take expedited decisions with regard to the needs and interests of particular families, was irrational, and breached Art.9 and Art.14 ECHR on freedom of religion and equal treatment and the Public Sector Equality Duty.
The court held, granting the application, that the policy was unlawful and would be quashed. The power being exercised by the Coroner was akin to a power derived from statute and so the principle against fettering a discretion applied. The policy constituted an unlawful fetter on the Coroner's decisions as to when and how to exercise her various statutory powers and for how long to retain custody of a body. It imposed a blanket rule that, in taking those decisions, the Coroner would not take into account the circumstances of any individual family where they had a religious basis, and so would prevent the Coroner taking into account a relevant consideration, even where this would have limited, or even no, effect on her other work. The Coroner's suggestion that in practice she did not apply the policy as rigidly as might appear to be the case on its face did not correct this defect, as the court had to consider the policy as it was published. The policy was still over-rigid as it would preclude the Coroner from taking any account of the individual circumstances of a particular case at all. The policy was discriminatory and incapable of rational justification as there was no good reason for singling out religious beliefs for exclusion from consideration.
The Coroner's policy beached Art.9 ECHR as it interfered with the right to manifest religion and did not strike a fair balance between the rights concerned. The fundamental flaw in the present policy was that it failed to strike any balance at all, let alone a fair balance. It also breached Art.14 – the Coroner's limited resources could not justify discrimination of this kind, which meant that certain reasons for a request for expedition were excluded from consideration altogether. However, the Coroner did have due regard to her Public Sector Equality Duty and so that ground of challenged failed. (27 April 2018)

If you wish to discuss any of the items noted in this section please contact Virginia Cooper.

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Powers and Duties

R (Muir) v Wandsworth LBC [2018] EWCA Civ 1035 (CA): the Council appealed against the High Court's declaration that its decision to grant a long lease of premises on Wandsworth Common to a private company, which intended to operate a private nursery for pre-school children on the site, was unlawful. The court had ruled that the provision of child care in a nursery setting did not come within the meaning of the term "recreation" in the Greater London Parks and Open Spaces Order 1967. The Council was empowered by the 1967 Order to provide and maintain centres and other facilities the use of clubs, societies or organisations whose objects or activities were of a recreational, social or educational character, but, while "organisation" could have a wide meaning, applying the eiusdem generis principle of construction, it did not include limited companies who were operating a profit-making business.
The court held, dismissing the appeal, that the judge was correct to allow the judicial review. It considered the meaning of "indoor facilities for any form of recreation whatsoever" and "facilities for the use of clubs, societies or organisations" in Art.7 of the 1967 Order. To say that the proposed nursery school was a predominantly recreational facility with ancillary educational and child care facilities was not a natural or appropriate way of describing what was proposed, and was driven by a desire to shoe-horn the proposed facility into the category of facilities defined in Art.7(v). That description was inconsistent with the Council's own guidance, which accurately described a day nursery as providing childcare and a nursery school as providing education, in contrast to a play group, where children "learn and play". Article 7(vi) did not impose a hard-edged requirement that the organisation be not-for-profit; nevertheless, the company was not the type of "club, society or organisation" with which sub-para.(vi) was concerned. The term "organisation" was there to sweep up organisations which were not strictly or properly described as clubs or societies, but which nevertheless shared their principal characteristic of being run for the benefit of members sharing a common interest. The company did not operate on this basis, but was a limited company providing services for clients or customers.
The court also briefly considered whether the charges proposed to be made by the company exceeded reasonable charges, and whether a power to make "reasonable charges" in this context was limited to recovery of costs, but declined to express a concluded view on this point. (9 May 2018)

If you wish to discuss any of the items noted in this section please contact Judith Barnes.

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Procurement

Crown Commercial Service: Public Sector contract: the CCS has published the Core Terms and generic schedule templates that make up the Public Sector Contract standard template for framework contracts for common goods and services. It says that when setting up a new framework contract, CCS will use: the standard core terms (used in every procurement), and relevant schedules (some schedules must be used, while others are optional). These schedules are templates. They will be customised for every procurement by CCS and will be found in the bid pack for new procurements. (1 May 2018)

Bevan Brittan: Procurement Bytes on Supply Chain: we have published two new articles in our Procurement Byte series:

(8 May 2018)

If you wish to discuss any of the items noted in this section please contact Emily Heard.

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Public Health

King's Fund: Talking about the ‘return on investment of public health’– Why it’s important to get it right: this article by David Buck looks at the increasingly common misunderstanding and misuse of the term ‘return on investment’ and its conflation with ‘cost saving’ to public services. (23 April 2018)

If you wish to discuss any of the items noted in this section please contact Judith Barnes.

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Regulatory Services

Institute of Licensing: Guidance on determining the suitability of applicants and licensees in the hackney and private hire trades: LLG have collaborated with the Institute of Licensing to launch  guidance to assist local authorities when making decisions about the suitability of applicants and licensees in connection with taxi and private hire driver, vehicle and operator licences. It considers how regard should be had to the antecedent history of the applicant or licence holder and its relevance to their 'fitness and propriety' or 'suitability'. (26 April 2018)

If you wish to discuss any of the items noted in this section please contact Adam Kendall.

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Standards

Committee on Standards in Public Life: The continuing importance of ethical standards for public service providers: this report charts progress in the new environment in which public service delivery is evolving, including changes to the market and changes to the civil service arising from the planned withdrawal from the European Union. It finds that the Government has made some improvements in how it manages the ethical conduct of contractors as part of a broader maturing of outsourcing practices; but in most other areas there has been little progress in adopting the Committee’s recommendations in its 2014 report Ethical Standards for Providers of Public Services. The Committee makes a further set of recommendations. It also calls for a consultation on whether the Freedom of Information Act should apply to private sector providers where information relates to the performance of a public service contract. (10 May 2018)

If you wish to discuss any of the items noted in this section please contact Judith Barnes.

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