Legal intelligence for professionals in local government.

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:  

   Adult Social Services    Education
   Audit    Equality and Discrimination
   Children's Services    Governance
   Defamation    Judicial Review
   Delivery of Services    Public Health
   Development Control    Tortious Liability


Adult Social Services

Draft National Health Service (Direct Payments) (Repeal of Pilot Schemes Limitation) Order 2013: this Order, once in force, repeals ss.12A(6) & 12C(1)-(4) of the NHS Act 2006, which were inserted by s.11 of the Health Act 2009, that enabled individual authorised pilot schemes to give people direct payments for healthcare as part of their personal health budget. This Order will pave the way for the revision of the National Health Service (Direct Payments) Regulations 2010 which will be put before Parliament later in 2013, enabling direct payments for healthcare to be made available across England, not just in pilot schemes. (22 April 2013)

DH: Government launches care comparison website: announces the launch of a new website that will help people to choose, compare and comment on care homes and other care services. The profiles are available on NHS Choices and sit alongside information on entitlements to care, paying for care, organising a care need assessment and other practical advice. (25 April 2013)

DH: Adult Social Care Outcomes Framework 2013 to 2014: sets out the indicators for measuring adult social care outcomes in 2013 and 2014. It describes the principles for the way in which the framework should be used, and its role in supporting local improvement, provides a national commentary on adult social care outcomes in 2011 to 2012, the first year of the operation of the framework, sets out the Adult Social Care Outcomes Framework (ASCOF) for 2013 to 2014 and provides a forward look for the development of the framework in future years.
There is also a Handbook of Definitions that sets out the technical detail of each measure, with worked examples to minimise confusion and inconsistency in reporting and interpretation. (29 April 2013)

DH: Oversight in adult social care – The consultation response: sets out the Government's response to the consultation on measures to protect people who rely on care services, in the event of provider failure. It confirms that the Government will introduce a system of central supervision by the Care Quality Commission for the 50 - 60 largest care providers. Where smaller providers leave the market, local authorities will continue to be required to make sure that people are given the necessary support if they need to arrange alternative care. (4 May 2013) 

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

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DCLG: Government response to the pre-legislative scrutiny report by the draft Local Audit Bill Committee: sets out the Government’s response to the report and recommendations of the Draft Local Audit Bill Committee that were published on 17 January 2013. The Committee was asked to consider whether the draft Local Audit Bill's provisions would meet the Government’s objective of creating a more efficient and transparent local audit system with appropriate safeguards for protecting the integrity of the audit system and ensuring accountability to local people. This response addresses each recommendation, following the order of the Committee’s report. (25 April 2013)

Public Audit (Wales) Act 2013: this Act has received Royal Assent. It comes into force on a day or days as the Welsh Ministers may order. The Act aims to strengthen and improve the accountability and governance arrangements relating to the Auditor General for Wales (AGW) and the Wales Audit Office (WAO) whilst protecting the AGW’s independence and objectivity. The Act establishes a new WAO, responsible for the corporate functions currently vested in the AGW, that also has a duty to monitor and a power to advise the AGW. It also makes the AGW the statutory auditor of local government bodies in Wales. (29 April 2013)

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

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Children's Services

Ofsted: Good early years provision for all: seeks views on proposed changes to the inspection framework aimed at improving the quality of early years providers. The consultation closes on 24 May 2013. (19 April 2013)

DfE: Residential Family Centres – National Minimum Standards: sets out the National Minimum Standards (NMS) applicable to residential family centres. The NMS, together with the Residential Family Centres Regulations 2002, form the basis of the regulatory framework under the Care Standards Act 2000 for the conduct of residential family centres. (6 March 2013)

R (H) v Kingston upon Hull City Council [2013] EWHC 388 (Admin) (Admin Ct): this case considered the relationship between administrative law and care proceedings. The issues were whether it was permissible to bring a judicial review challenge to a local authority decision when there were extant care proceedings (and an interim care order was in force), and what was the extent of the duty to consult when an interim care order was in force.
H was the mother of two young children who were the subject of interim care orders (ICOs). She challenged the Council's decision to remove the children from the care of their paternal grandparents, without any court approval for that course or consultation. Under the ICO, the children were removed from their parents and placed with their paternal grandparents. At the time the ICO was made, the grandparents' suitability was not challenged; however, six weeks later the Council conducted a Viability Assessment which concluded that the grandparents were not able to provide the standard of care that the children needed. The Council then decided, without consulting with either the parents or the children's guardian, to remove the children immediately and place them in foster care. The parents were informed of this decision the next day. H brought judicial review proceedings.
The court held, making a declaratory judgment in favour of H, that when an ICO was in force, there was a plain duty upon a local authority to consult with all closely involved parties, but the weight to be attached to the views expressed was a matter for the judgement of the local authority. Furthermore, when there was a dispute, the issue had to be returned to the family court for resolution.
The judge stated that this case was a useful reminder of the need of all local authorities to consult meaningfully and not engage in unilateral decision-making. A local authority had a duty to consult with all affected parties before a decision was reached upon important aspects of the life of a child whilst an ICO was in force. The guidance was clear that a local authority must consult and that was even more crucial during the interim phase of proceedings when final decisions as to the threshold criteria and outcome had not been made by a court. There would be decisions to be made in some cases where it was impossible to engage with parties or even to consult where the local authority had to act speedily in the interests of child safety and protection. In those circumstances there had to be clear reasons for this and the decision needed careful justification and calibration, with a full note of the reasons for such an exceptional course. Here, the meeting with the parents the day after the decision was not consultation at all but was a process of disseminating information about a decision that had already been made. There had also been lamentable failures by the Council to maintain adequate records of the route they took to reach a fundamental decision. Had there been consultation in this case,  it might have been possible to have found a route whereby the children could have remained with the grandparents (with additional safeguards) or for removal to have been effected in a much more seemly and kindly way for the children. The mess created in this case was the sole responsibility of the Council.  
The answer to the question whether it was permissible to bring a judicial review challenge to a local authority decision when there were extant care proceedings was a qualified "yes". Usually the appropriate remedy was for the family court to control the situation, but there were unusual situations where the actual decision sought to be impugned could not effectively be made the subject of review in family proceedings. (8 April 2013)

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

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Defamation Act 2013: this Act has received Royal Assent. It comes into force on a day or days to be appointed. The Act makes a number of substantive changes to the law of defamation, but is not designed to codify the law into a single statute. The provisions include: 

  • a requirement for claimants to show that they have suffered serious harm before suing for defamation;
  • removal of the current presumption in favour of a jury trial;
  • introduction of a defence of "responsible publication on matters of public interest";
  • increased protection to operators of websites that host user-generated content, provided that they comply with the procedure to enable the complainant to resolve disputes directly with the author of the material concerned; 
  • new statutory defences of truth and honest opinion to replace the common law defences of justification. and fair comment.

The Lords did propose an amendment to the Bill to make special provision restricting the bringing of defamation claims by non-natural legal persons; however, this amendment was rejected by the Commons. (25 April 2013)

If you wish to discuss any of the items noted in this section please contact Wesley O'Brien.

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Delivery of Services

NESTA: Grumbles, gripes and grievances – The role of complaints in transforming public services: this report shows how the gap is widening between the public services people want and the ones that they receive. It finds that rising demands and changing public expectations are compounded by reductions in public spending and pressures on budgets, and warns that this may lead to exasperated consumers if the way that public services listen and engage don't evolve to meet changing demands. The gap between service expectations and reality is driving the need for public service innovation - the development of new products, services and ways of doing things. The report explains that complaints are an early warning sign that something has gone wrong and that public services need to adopt a solid approach to listening, engaging and acting on public comments. But, Nesta stresses, a complaint-led innovation model needs to be built on a culture that is open to innovation. For some public services, this will mean a cultural shift is needed before complaints are acted on and create innovative responses. (16 April 2013) 

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

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Development Control 

LGA: Briefing on Government’s revised permitted development proposals: following concerns over proposals to extend permitted development rights for homeowners, the Communities Secretary laid an amendment before Parliament that introduced a new light-touch neighbours’ consultation scheme that would put in place protections for neighbours where adjoining homeowners tried to use the proposed extension to their permitted development rights. The revised approach to permitted development reforms has since been debated by the House of Lords as part of the Growth and Infrastructure Bill (now an Act - see below). This briefing highlights significant concerns and queries with the new proposals. (22 April 2013)
See also the Communities Secretary’s letter to MPs Making it easier for families to improve their home that explains the amendments to the Growth and Infrastructure Bill on the issue of householder permitted development rights.
The Chair of the CLG Select Committee, Clive Betts MP, has written to the Secretary of State with ten questions about the revised proposals, including the financial sustainability of the scheme and how environmental and social impact assessments would be carried out under it. (22 April 2013)

The Growth and Infrastructure Act 2013 has now received Royal Assent. Some of its provisions come into force on 25 April and 25 June 2013; the remainder come into force on a day or days to be appointed. The provisions include: 

  • the option to make planning applications directly to the Secretary of State when a local planning authority has been designated because of a record of very poor performance; 
  • new permitted development rights which will allow homeowners to carry out rear extensions to their houses of up to eight metres without the need for planning permission, subject to a consultation scheme under which neighbours can object to planned extensions and ask the local authority to consider the plans; 
  • allowing for the reconsideration of economically unviable affordable housing requirements contained in Section 106 agreements; 
  • excluding the right to apply for land proposed for development to be registered as a town or village green to safeguard against the system being used to stall or stop development, while protecting existing registered greens; 
  • modifying special parliamentary procedure to ensure that the procedure will consider orders under the Planning Act 2008 and Acquisition of Land Act 1981 only to the extent that these authorise compulsory acquisition of land falling into a special category; 
  • enabling the Secretary of State to direct that business and commercial projects of national significance can be considered under the nationally significant infrastructure regime contained in the Planning Act 2008; 
  • clarifying the position of variations and replacements of pre-Planning Act consents under the Planning Act and associated saving provisions; and
  • postponing the date on which new non-domestic rating lists in England should be compiled from 1 April 2015 to 1 April 2017. 

See also the DCLG press release. (25 April 2013)

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

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DfE: Consultation on draft amendments to the Education (School Performance Information) (England) Regulations 2007: seeks views on proposed amendments to SI 2007/2324 so as to require schools to submit teacher assessments on or before “the last Friday in June”.  Test results will be available in early July. It also proposes some other small changes to the regulations to reflect current school practice, in particular in relation to how the teacher assessment data should be submitted. The consultation closes on 20 May 2013. (9 April 2013)

DfE: New wave of approved studio schools will take total to more than 40: announces that 13 more Studio Schools are to be established from September 2014. Studio Schools allow 14 - 19 year-olds to study academic subjects through practical projects designed and delivered by employers. (10 April 2013)

DfE: Review of efficiency in the schools system: DfE is conducting a review of the level of efficiency in the schools system, with particular focus on how schools can maximise the resources available to them. For the purposes of this review, efficiency is about the relationship between spending decisions and outcomes, and ensuring that limited resources are used to the best possible effect. This document calls for evidence on how schools make financial decisions and the techniques that they find particularly useful, along with opinions and ideas of how schools can improve their efficiency. The call is open to anyone to respond.but DfE would particularly like to hear directly from people that are involved in these decisions on a day to day basis. The results of the call for evidence will form part of a report on efficiency in schools which will be published in June 2013. The consultation closes on 10 May 2013. (10 April 2013)

DfE: Guidance on home to school travel and transport: this statutory guidance, to which local authorities must have regard, provides a summary of the statutory duties with which local authorities must comply when making home to school travel arrangements. (1April 2013)

MoD: Admissions to schools in England and the armed forces covenant: the Armed Forces Covenant is is a pledge made by the Government to ensure that the armed forces are not disadvantaged as a result of their service. This guide for service parents and other relevant stakeholders explains the relationship between the commitments made in the Covenant and the statutory guidance in England for schools and local authorities in respect of admissions to state maintained schools. In the case of school admissions in England, the relevant law and guidance is summarised in the School Admissions Code 2012. In the light of the Covenant, there are some specific references to children of service personnel and their parents in the code which are outlined in this document. (25 April 2013)

DfE: Departmental advice – Reviewing and revising your school’s approach to teachers’ pay: this guidance helps schools and governing bodies with developing a process for decisions on teachers’ pay in relation to the School Teachers’ Pay and Conditions Document (STPCD) 2013. Revised pay progression arrangements for teachers in England come into force from 1 September 2013. After that date, decisions about teachers’ pay progression will be linked to performance, with their first annual performance-related progression pay increases being made in September 2014. It is up to each school to decide for itself how best to implement the changes and develop policies accordingly. By September 2013, every school will need to have revised its pay and appraisal policies setting out how pay progression will in future be linked to a teacher’s performance. This advice highlights factors that schools could consider when assessing teachers’ performance. (29 April 2013)

West Sussex CC v C (Unreported) (Div Ct): the Council appealed against the magistrates' court's dismissal of an information preferred against C for the aggravated offence under s.444(1A) of the Education Act 1996 of failing without reasonable justification to secure her daughter's attendance at school. C's defence was that she could not control her daughter (D), C had mental health issues which had caused her not to attend meetings arranged to discuss D's non-attendance, and that D was only intermittently at home and spent more than half of the time with the father's family. The magistrates' court found that D's chaotic lifestyle was an unavoidable cause of her non-attendance and that C had a reasonable justification in all the circumstances within s.444(1A).
The court held, allowing the Council's appeal, that the case law showed that "unavoidable cause" had to be strictly construed and required something in the nature of an emergency, which actually prevented attendance. The magistrates had erred in concluding that D's chaotic lifestyle was an unavoidable cause preventing her from attending school within s.444(3). Even if C had a reasonable justification within s.444(1A), there was no unavoidable cause. (30 April 2013)
The judgment is available on Lawtel (password required).

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

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Equality and Discrimination

R (Bracking) v Secretary of State for Work and Pensions [2013] EWHC 897 (Admin) (Admin Ct): B and others were all severely disabled people who were current users of the Independent Living Fund (ILF). They applied for judicial review of the Secretary of State's decision to close the ILF. They claimed that the consultation process was defective as the information provided in the consultation document was inadequate, and that the SoS had failed to comply with his Public Sector Equailty Duty (PSED) under s.149 of the Equality Act 2010. 
The court held, refusing the application, that the SoS had had due regard to the PSED. The statutory duty was brought to the decision-maker's personal attention and sufficient regard was had to the relevant elements engaged by the proposal. The principles laid down in R (Brown) v Secretary of State for Work and Pensions [2008] EWHC 3158 (Admin) and other case law had been met. This was not an after the event assertion that due regard had been had, but an anxious consideration of what closure would mean in general terms for the affected class. The consultation was not defective: although there was information known to the DWP that was not in the consultation, the consultation was candid and open, having regard to what it was: a desire to know the consequences of a provisional decision to close the ILF. The omission of this data did not detract from the ability of the consultees to explain how closure had potential serious impact on them. (24 April 2013)

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

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DEFRA: Review of National Park governance – Implementation update: the aim of the 2010 review was to look for ways in which the governance of the England’s National Parks and the Broads could be made more effective, and the National Park and the Broads Authorities could be more responsive to the concerns of their local communities. This note provides an update on progress in implementing the outcomes of the review. (25 April 2013)

LGA: No overall control – The experience of chief executives in councils without a majority administration: this guidance presents case studies of  chief executives whose authorities had moved to a no overall control position. (25 April 2013)

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

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Judicial Review

MoJ: Reform of judicial review – The Government response: in December 2012, MoJ launched a consultation on proposals to reform judicial review procedures. MoJ stated that the aim of the proposals was to tackle delays and reduce the burden of judicial review by filtering out weak, frivolous and unmeritorious cases at an early stage, while ensuring that arguable claims can proceed to a conclusion without delay. This response sets out how the Government will now proceed with the reforms, in light of comments received. The changes include:  

  • reducing time limits for bringing a claim from three months to six weeks in planning cases and 30 days for procurement cases;  
  • introducing a new fee of £215 for an oral renewal hearing, where the claimant does not accept a refusal of permission on the papers, and asks for the decision to be reconsidered at a hearing (an "oral renewal"); and  
  • removing the right to an oral renewal where the case is assessed as totally without merit on the papers.

The changes complement separate proposals being considered which would also see the fee for a judicial review application increase from £60 to £235. Court Rules will now be put in place to implement the changes, which are expected to take effect this summer. (23 April 2013)
Bevan Brittan LLP has published an article that discusses the proposed reforms: Government plans to reform judicial review procedure.

R (Nash) v Barnet LBC; Capita Plc, EC Harris LLP and Capital Symonds (Interested Parties) [2013] EWHC 1067 (Admin) (Admin Ct): N, a resident of B Council, applied for judicial review of one decision and one impending decision by the Council to outsource to private sector organisations a high proportion of its functions and services under its One Barnet programme. The contested decisions related to the award of the outsourcing contract and were taken (or were to be taken) in December 2012 and January 2013. In 2010/11 the Council had taken decisions that marked the formal beginning of the procurement process leading to the contract award decision. N claimed that the Council had not complied with its consultation obligations relating to the decisions and had failed to have due regard to its Public Sector Equality Duty (PSED) under s.149 of the Equality Act 2010. She also contended that if the Council entered into the proposed contracts it would be in breach of its fiduciary duty to council taxpayers. 
The court held, dismissing N's application, that the claim was out of time. If the Council was under a duty to consult, it should have consulted prior to the decisions taken in 2010/2011 to proceed with outsourcing and to initiate the procurement procedures accordingly; and any breach of that duty crystallised when those decisions were taken without any consultation having occurred. The 2010/2011 decisions plainly constituted distinct substantive decisions and had immediate legal effect. The decisions made in December 2012, or impending in January 2013, were, or would be, different decisions, namely to award a particular contract to a particular contractor. On that basis, it was clear that N's challenge was in truth to the earlier decisions, on grounds that existed from the moment that they were made. The challenges on PSED and fiduciary duty were similarly out of time. The judge was not prepared to extend time - the proceedings were brought 18 months or more after they should have been. The Council had been proceeding on the basis that the decisions were lawful, and it would be contrary to all principles of good administration for that basis now to be put in doubt and would also risk considerable wasted expenditure.
Even if the application for judicial review had been made in time, the Council would have been held to have been in breach of its consultation obligations in respect of the 2010/11 decisions. However, the court would not necessarily have quashed those decisions or the December 2012 decision as it would have wished to consider seriously whether even if the claim was in time, it would be right to withhold relief. Nor would the Council have been in breach of its PSED: the question for the court was only whether the Council had paid due regard to the issue, which it had done. It was for the Council, not the court, to judge whether the provisions of the contract adequately addressed the interests of groups with a protected characteristic and its assessment could only be challenged if it fell outside its wide discretion. On the issue of breach of fiduciary duty, the court would have refused permission on the merits even if the claim had been within time as the evidence did not establish the kind of reckless disregard of the principles of financial planning or management that was necessary to make good such a claim. (29 April 2013)

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

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Public Health

Lead Member for Children’s Services briefing on School Health Service: from April 2013, local authorities are responsible for delivering and commissioning public health services for 5 - 19 year olds. This includes providing prevention and early intervention services, addressing key public health issues and delivering the Healthy Child Programme. School nurses are skilled in delivering these services and can work with local authorities to deliver effective public health programmes. This briefing from the Local Government Association and the DH provides an overview of the School Health Service and shares top tips to help Lead Members for Children’s Services think about how they can use the School Health services to deliver better health outcomes for 5 - 19 year olds. (22 April 2013)

LGA: Measles: Frequently asked questions – Briefing for councillors: the LGA has combined with Public Health England to provide guidance to councillors on measles. This listing of FAQs explains what is being done to reduce the spread of these latest local outbreaks of the disease and what vaccination strategies a local authority can adopt. (22 April 2013)

DH: The Health and Social Care Act 2012 and associated secondary legislation and guidance: this document lists regulations and guidance concerning the new public health system that have made or published in consequence of the HSC Act 2012, with a high-level summary of the changes to secondary legislation that came in on 1 April 2013. (24 April 2013)

PHE: Council access to health care data from the NHS: this letter from the Chief Knowledge Officer, Public Health England, to local authority chief executives and directors of public health discusses problems with arrangements for Councils and CCGs to access healthcare data from the NHS through Clinical Support Units (CSUs), and what PHE is doing to resolve the situation. (12 April 2013)

Regional Voices: Resources published – to support VCS involvement in Healthwatch: links to resources to support the development of Healthwatch as well as to promote involvement with the voluntary and community sector and the communities it works with. They include an overview of Healthwatch for the VCS, a good practice guide, and recommendations on how the VCS can act as a key partner in local Healthwatch. (23 April 2013) 

Primary Care Commissioning: Briefing on NHS health checks for local authorities: local authorities are now responsible for commissioning health checks. This Primary Care Commissioning briefing provides information about the national prevention programme, which is provided locally, mostly by GPs. Patients can be referred as a result of their health check to various services, many of which, such as open gyms, are run by local authorities. The briefing considers why health checks are important, what a check consists of, their cost-effectiveness and the implications for local authorities. (25 April 2013)

PHE: Public Health England's priorities for 2013 to 2014: sets out PHE's direction for the next year. The priorities encompass the organisation's broad remit, ranging from protecting and improving the nation's health to building the public health system and increasing its own expertise. The document forms the the beginning of a conversation with PHE's partners about how to transform the public health system and create a genuine improvement in the public's health. (26 April 2013)

PHE: Localising the Public Health Responsibility Deal – Toolkit for local authorities: this toolkit supports local authorities to mobilise local businesses to improve the health of their staff and customers. It sets out simple, effective actions which local businesses could take to support their customers and employees to make healthier choices, based on work that has been done at national level through the Public Health Responsibility Deal. It invites local authorities: to use this toolkit to encourage local businesses to take action to improve the health and wellbeing of their staff and customers; to sign up to the national Responsibility Deal themselves and report each year on the actions they have taken to engage local businesses; and  to encourage businesses in their area to sign up to the national Responsibility Deal as local partners, in place of or in addition to local arrangements. (10 April 2013)

DH: Public Health Outcomes Framework 2013 to 2016 – Interim updates to Part 2: Summary technical specifications of public health indicators: local authorities must have regard to  the Public Health Outcomes Framework in the exercise of their public health functions. This document includes a number of updates and corrections to Part 2: Summary technical specifications of public health indicators, following the November 2012 update. (29 April 2013) 

DH: Healthy Lives, Healthy People – A public workforce strategy: this strategy builds on the March 2012 consultation that sought views on ways to support and develop the public health workforce following the public health reforms under the Health and Social Care Act 2012. It sets out the actions that the various partners in the public health system will take to support and develop the public health workforce. (3 May 2013)

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

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Tortious Liability

Tacagni v Cornwall Council, Penwith DC and Hayle Town Council (Unreported) (CA):
the Council appealed against a finding that it was one-third liable for personal injuries suffered by T when she fell from a raised pathway. The issue was whether it was open to the judge on the evidence to hold that the local authority had breached its common law duty of care under s.2 of the Occupiers' Liability Act 1957. The accident happened when T was walking home in the dark with her partner, after she had been drinking. After her partner left her to phone for a taxi, T used a fence to guide her along the edge of the path; however the fence, which had been erected around an area where a retaining wall had collapsed, only covered part of the path. T walked off the path onto grass and then fell onto the road below. The judge concluded that T was under the influence of alcohol only to a moderate extent and that the Council had breached its common duty of care by failing to erect a fence to prevent someone falling over the edge, but found that T was two-thirds liable.
The court held, allowing the Council's appeal, that the evidence as a whole did not warrant the judge's finding that the Council had unreasonably failed to guard against the risk of accident that did occur to T. It was hard to envisage that a person would be using the fence as a guide in T's circumstances and that it would not have been obvious to someone that they were departing from the path and crossing a significant portion of the grass. Accordingly, the evidence did not warrant the conclusion that the local authority had breached its common duty of care. (24 April 2013)
The judgment is available on Lawtel (password required).

Wilkin-Shaw v Fuller and Kingsley School Bideford Trustee Co Ltd [2013] EWCA Civ 410 (CA): WS's daughter fell into a fast flowing stream, was swept away by the strong current and drowned while on a training exercise on Dartmoor with ten other children from her school. F was a teacher at the school and was responsible for the children's training for the expedition. Another staff member, T, was supposed to meet the children at a checkpoint but missed them as she had lost her way and had fallen into a brook but managed to pull herself out. WS claimed damages for personal injuries against F and the school. The judge dismissed WS's claim that the school was vicariously liable for F's negligent acts or omissions. WS appealed, alleging that T, although competent to act as a check pointer, was personally negligent in failing to be present at the checkpoint and that the school was vicariously liable for T's failure.
The court held, dismissing WS's appeal, that given the high standard reasonably to be expected, and the seriousness of the elementary errors made, T had been negligent. However, subsequent events could not fairly be attributed to T's absence at the checkpoint. A finding that her presence at the checkpoint when the group first arrived would have prevented the second attempt to cross the brook, with its tragic consequences, involved too much speculation to be tenable. On the evidence, the judge could not conclude that T's presence at the checkpoint when the group first arrived would have led to a different outcome or was causative of the second attempt to cross the brook. Even had she stayed, the intervention of a third party, anxious to help and apparently authoritative, would have broken the chain of causation. It could not have been foreseen that the children would have disobeyed F's instructions and the advice given by another, W, whom they met en route. (18 April 2013)

Devon CC v TR [2013] EWCA Civ 418 (CA): TR brought a claim against the Council as highway authority for damages for breach of its duty under s.41 of the Highways Act 1980 to maintain the highway. TR's passengers were seriously injured when his car left the road and overturned after he lost control while overtaking a slower car on a country road. He contended that the defective state of the offside of the road was what had caused him to lose control. The Council pleaded the defence under s.58 of the 1980 Act that it had taken such care as was in all the circumstances reasonably required to render the highway not dangerous to traffic. The Council's manual for road inspection and the treatment of defects classified the road as having inspections every six months. The judge concluded that the Council had failed to make out the statutory defence because it had not justified its departure from the recommended monthly inspection interval set out in the non-statutory Code of Practice "Well maintained highways". She found that the Council was liable and she held that TR had not been negligent at all.
The court held, allowing the Council's appeal in part, that the judge had erred in treating the Code as a mandatory standard which had to be adhered to unless there was a positive reason to depart from it. The Code did not set out mandatory rules but was evidence of good practice and authorities had to exercise their own judgement. The judge's finding that the Council's adoption of an inspection frequency of six months for local distributor roads generally was a want of reasonable care could not stand as it was founded on an erroneous approach to the Code. However, there was sufficient evidence to justify the judge's conclusion that this particular road needed inspection at shorter intervals than six monthly, and so her finding that the statutory defence had not been made out would be upheld.  The rut in the road could be seen and TR made an error in not seeing the damaged area and avoiding it. This error amounted to a significant failure to keep a proper lookout and to manage the car correctly.  TR was contributorily negligence to the extent of 50%.(30 April 2013)

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

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