Case Law Update – Mental Health Act 1983
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Read More09/08/2013
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:
Access to Information
Freedom of Information (Release of Datasets for Re-use) (Fees) Regulations 2013 (SI 2013/1977): when releasing a dataset under the FOI Act 2000, public authorities are required in certain circumstances to release them in a re-usable format and, where they own the copyright, to make them available for re-use under licence. These regulations, which come into force on 1 September 2013, enable public authorities to charge a fee for making such datasets available for re-use and prescribe the manner in which such fees are to be determined. (9 August 2013)
If you wish to discuss any of the items noted in this section please contact Emma Godding.
Adult Social Services
Welsh Government: A framework for delivering integrated health and social care: seeks views on a proposed framework for the NHS, third sector and local authority social care leaders across Wales that sets out a new approach to integrate health and social services for older people with complex needs. The consultation closes on 15 October 2013. (22 July 2013)
LGA / NHS England: Statement on the health and social care Integration Transformation Fund: sets out the LGA's and NHS England's joint vision for how the pooling of £3.8bn of funding, announced by the Government in the June Spending Round, will ensure a transformation in integrated health and social care. The Integration Transformation Fund is a single pooled budget for health and social care services to work more closely together in local areas. This document provides a roadmap for local areas to plan in the run up to the fund taking full effect from 2015/16. (9 August 2013)
If you wish to discuss any of the items noted in this section please contact Clare Taylor.
Charging
DCLG: Guidance on bin charging on student accommodation: the Local Government Minister Brandon Lewis and Parliamentary Under Secretary of State Lord de Mauley have written to local authority Chief Executives about the introduction of charges for waste services to landlords of students in privately rented accommodation blocks. The letter states that local authorities should not be charging such landlords for waste services, as these are domestic residences and students are exempt from council tax, and such charges could lead to a rise in fly-tipping and illegal dumping of waste. The Controlled Waste (England and Wales) Regulations 2012 gave local authorities powers to charge for the collection and disposal of waste from a wider range of non-domestic premises, including "domestic property used in the course of a business for the provision of self-catering accommodation". However, this description does not cover waste from students or any privately rented domestic property. (29 July 2013)
Local authority parking charges come under scrutiny: following the publication of budget estimates of local authority revenue expenditure and financing for 2013 - 2014, DCLG has highlighted English local authority forecasts of £635m surplus from parking charges and fines in 2013 and 2014. In a statement, the Communities Secretary has indicated a potential review of parking policies. The RAC Foundation has also published a report on parking charges. The DCLG statement follows the successful judicial review challenge to Barnet Council's decision to increase parking charges in its Controlled Parking Zones (R (Attfield) v London Borough of Barnet [2013] EWHC 2089 (Admin)). In this alert, Bevan Brittan looks at the implications of the judgment for the wider local authority sector, in light of the Secretary of State's statement. (2 August 2013)
If you wish to discuss any of the items noted in this section please contact Nadeem Arshad.
Children's Services
Re B [20131] EWCA Civ 964 (CA): in
care proceedings concerning a five-month old baby, K,
the court made an interim residence order to the grandparents,
G, and an interim supervision order to the local authority.
The local authority were prepared to make payments pursuant to
s.17 Children Act 1989 to help G with childcare costs but they
did not accept that they had duties to K as a looked after child. G
argued that K was a looked after child and that this entitled them
to a fostering allowance.
The court held that K was not a looked after child because she was
not being, and had never been, provided with accommodation under
s.20 of the Children Act 1989 and was not within the definition in
s.22(1). When a residence order was made, it conferred
parental responsibility on the holder for the duration of the order
by virtue of s.12(2) of the 1989 Act. From the moment of the making
of the residence order, the child was therefore provided with
accommodation by a person with parental responsibility, whose role
had been approved by the court. That was wholly inconsistent with a
continuing duty under s.20. Section 91(1) provided that the making
of the residence order discharged the care order. Section 22(1)(a)
therefore ceased to be applicable and the child was no longer
looked after by virtue of it. This was powerful support for the
view that a residence order also brought to an end the looked
after status of a child who was up to that point provided with
accommodation within the meaning of s.22(1)(b). Even if K
might be said to have been provided with accommodation when placed
with G, the provision of accommodation was fleeting because the
making of the residence order brought K's looked after status to an
immediate end. (30 July 2013)
LGO: Liverpool City Council fails to give adequate support to 340 carers: announces that Liverpool City Council has agreed to carry out a review of its practice of deducting Child Benefit from those on Income Support in receipt of Special Guardianship Allowance (SGA) (a separate benefit for carers who have parental responsibility for the children in their care). The Council has also agreed to backdate payment of its SGA at the same rate as its Fostering Allowance (FA) rate from April 2010, and to pay all foster carers looking after children under 4 years old the FA in line with or above National Minimum Fostering Rates from April 2013, backdated to April 2011. This follows the LGO's investigation into a complaint by a woman, who had been looking after her toddler nephew following a domestic violence incident, that the Council was not paying her the correct benefits. The LGO found that the Council was failing to pay those foster carers who look after children aged 0 to 4 years old at the National Minimum Fostering Allowance set by Government each year, and also failed to pay the SGA at the same rate as its foster carers. (1 August 2013)
DfE: Residential holiday schemes for disabled children – National minimum standards: sets out the national minimum standards applicable to providers of holiday schemes for disabled children. These form the basis of the regulatory framework under the Care Standards Act 2000 for the conduct of these providers. The standards are designed to be applicable to different holiday schemes for disabled children. They aim to enable, rather than prevent, individual providers to develop their own particular ethos and approach. (1 August 2013)
R (Kebede) v Newcastle City Council [2013] EWCA Civ 960
(CA): the Council appealed against the court's decision to
quash its refusal to make grants to K under s.24B(2) of the
Children Act 1989 for his university fees. K and his brother
had been accommodated by the Council under s.20 of the 1989 Act
after they came to the UK from Ethiopia, and so each of them
became a "former relevant child" for the purposes of the
Act once they reached 18. Because of their immigration status,
they were ineligible for state funding for their university
fees so they sought funding from the Council under s.24B(2) of the
Act, which requires a local authority to make a grant to a former
relevant child "to enable him to meet expenses connected with his
education or training". The Council argued that "expenses" in s.24B
meant incidental expenses, such as the cost of stationery, but not
the fees charged for the education or training; further, even if it
did cover university fees, the Council was entitled to
take its limited resources into account in deciding whether or not
to make a grant.
The court held, dismissing the appeal, that the natural meaning of
"expenses connected with his education" included the major expense
of the tuition fees. Section 24B(2) and (5) would appear to confer
no practical benefit on former relevant children unless they extend
to tuition fees and it was difficult to see the point of the
requirement in s.23C(4) that the prospective student's "welfare and
his educational or training needs require" the assistance in
question if it was limited to the costs such as books and
stationery. That requirement most obviously related to what was
central and essential to the education or training in question. The
assistance was to be given "to the extent that [the former relevant
child's] welfare and his educational or training needs require it"
– this was an objective test and left no room for a
consideration of the resources of the local authority. (31
July 2013)
Surrey CC v M [2013] EWHC 2400 (Fam) (Fam Div): this
case concerned a 23-month old girl, E, who was born with
a number of difficulties and required highly specialist care. She
required intubation and ventilation at birth and had been
ventilator dependent ever since. She was discharged home from
hospital with a complex care package when aged 13 months and
her parents were given training on how to care for her. Concerns
were raised about non-accidental damage to equipment, the parents'
care and suspected factitious illness. The Council held
a strategy meeting where it was decided that E was at
immediate risk of harm and E was removed from her parents' care
that evening, by way of an enforced agreement with the parents
under s.20 of the Children Act 1989. In care proceedings,
the Council contended that the parents had put E at risk
of significant harm by cutting part of her ventilation equipment on
at least two occasions, by failing to properly understand E's
medical needs, by unreasonably escalating E's clinical
presentation and by not keeping professional boundaries with
staff. At the fact finding hearing, the Council sought permission
to withdraw the proceedings on the basis that they recognised they
were not going to be able to establish the threshold criteria to
the required standard, namely the balance of probabilities.
The court held, granting the Council's application to withdraw the
proceedings, that the way the information had been presented,
both before and after the issue of proceedings, and the process
that was used by the Council graphically illustrated the dangers of
not rigorously analysing the evidential foundation for and against
any allegations made and not exercising a balanced judgment. The
peremptory removal of E from her parents' care by way of an
enforced Section 20 agreement was achieved through an unfair
process and the parents had no choice but to 'agree' when, in
reality, they had no choice. There was a lack of effective
structure and leadership within the Council regarding the decisions
made before and after E's removal from her parents' care. Both
the Council and the community health team failed to check the
evidential foundation of what was being asserted by them and ensure
it was presented in a balanced way. There was little evidence of
effective and consistent management or supervision of the social
workers who were operating on the ground. A proper and fair
process should be invoked before a child was removed from the care
of its parents and police powers of protection should only be
used in exceptional circumstances, otherwise it should be by way of
EPO or an interim care order. The route used in this case
sought to circumvent those important safeguards that ensured a fair
process when the State sought to interfere in family
life.
The court observed that this case demonstrated the vital need to
check the sources of information that formed the foundation of
decisions being made relating to child protection, so an assessment
could be made about its reliability. The fact that a piece of
information had been repeated many times did not enhance its
reliability. Information to be given to a meeting by key
participants, where important decisions were going to be made,
should be put in writing, giving those attending the
opportunity to be able to read and consider it in advance, and
it was essential that statements for court proceedings were
based on contemporaneous records, not recollections made some
months later. There was an obligation on public authorities who
were seeking orders that interfered with rights to family
life, to present a balanced picture, not just the
negative information, or the facts cast only in a negative
light. (30 July 2013)
DfE: Funding to increase the recruitment of adopters: announces almost £16m funding to help new and existing voluntary adoption agencies (VAAs) to develop new and creative ways to recruit more adopters. It will also provide new business support for adoption agencies, with advice, coaching, and guidance to expand their organisations. (8 August 2013)
If you wish to discuss any of the items noted in this section please contact Clare Taylor.
Communities
Welsh Government: New fund open to make Wales a fairer society: invites charities and third sector groups to apply for up to £1.6m of funding from the new Equality and Inclusion Grant 2014-17 for projects that tackle inequality and discrimination and help make Wales a fairer place. The deadline for applications is 31 October 2013. (1 August 2013)
DCLG: £17 million support to help communities build: announces that the funding for the Community Right to Build scheme is to be extended to include any community-led development project. The fund [worth £14m according to HCA, £17m according to DCLG] is available until March 2015 to help groups outside London to formally establish, build up their development proposals and submit either a Community Right to Build Order or a planning application. Guidance for applicants is on the HCA website. (5 August 2013)
If you wish to discuss any of the items noted in this section please contact Olwen Dutton.
Delivery of Services
DCLG: Local planning authority performance tables: these tables present data on the performance of local planning authorities against the published criteria for assessing under-performance under s.62B of the Town and Country Planning Act 1990. They provide information on the speed and quality of decisions on applications for major development, for both district and county councils. DCLG stresses that these are interim tables so should not be taken as an indication that any particular authorities will be designated once information for the assessment period as a whole becomes available in September and October this year. Local planning authorities have until 9 August 2013 to complete their statistical returns for the first quarter of 2013 to 2014. (30 July 2013)
If you wish to discuss any of the items noted in this section please contact Olwen Dutton.
Democracy
Local Government (Democracy) (Wales) Act 2013: this Act of the National Assembly for Wales has received Royal Assent. The Act improves the democratic processes and transparency of local government in Wales by:
- improving the public’s access to information about town and community Councils;
- reforming the structure and functions of the Local Government Boundary Commission for Wales;
- amending the responsibilities of the Independent Remuneration Panel for Wales and the structure of local authority audit committees within the Local Government (Wales) Measure 2011;
- requiring principal councils and fire and rescue authorities to consult the Independent Remuneration Panel before varying the salary of their chief executive;
- facilitating the creation of joint standards committees by local authorities; and
- enabling councils to separate the ceremonial and civic functions from the role of presiding over meetings of the council if they so wish.
Many of the provisions come into force on 30 September 2013. The remaining provisions come into force on a day or days to be appointed. (30 July 2013)
If you wish to discuss any of the items noted in this section please contact Olwen Dutton.
Development Control
DCLG: Pickles takes on town halls' new driveway tax: announces that the Government is to publish new practice guidance on when planning permission is, and is not, required that will include the issue of change of use and renting driveways. This follows reports that local authorities are demanding that households that want to rent out their off-street parking space must apply for planning permission for “change of use". The new guidance will make it clear that the public should be able to rent out a single parking space without planning permission, provided there is no public nuisance to neighbours or other substantive concerns. (3 August 2013)
DCLG: Greater flexibilities for change of use – Consultation: seeks views on proposals to amend permitted development rights so as to make better use of existing buildings, support the high street and rural communities, provide new housing, develop more free schools and contribute to the provision of childcare for working families. It includes a new permitted development right for a retail building to change to residential use (C3); however, this proposal has been toned down since first mooted - the proposal is now that the right will only apply to small conversions (<150sqm) to provide a single dwelling house or a maximum of four flats, and will be subject to obtaining prior approval that considers the design and the potential impact on the area's economic health, provision of local services and local character. The consultation closes on 15 October 2013. (6 August 2013)
If you wish to discuss any of the items noted in this section please contact Kathryn Lawrance.
Economic Development
DBIS: Assisted Areas Map 2014 to 2020: Assisted Areas are locations where regional aid to support businesses can be offered by public authorities under EU legislation. The Government is now seeking views on common principles for drawing the 2014 to 2020 Assisted Areas Map. Local Enterprise Partnerships in England and local authorities in Scotland and Wales are asked to identify their economic priorities in disadvantaged local areas, which will be used to develop a draft Assisted Area Map that will be published as part of a second consultation in the winter. The final Map will come into force from July 2014 after it has been agreed by UK ministers and the European Commission. The consultation closes on 30 September 2013. (31 July 2013)
If you wish to discuss any of the items noted in this section please contact Mark Calverley.
Education
DfE / DCMS: Cultural education: sets out the Government's plan for cultural education in England, covering subjects such as art and design, dance, drama, film studies and music. it provides an overview of the programmes and opportunities open to schools and teachers to give all children access to a high-quality cultural education. (5 August 2013)
School Standards and Organisation (Wales) Act 2013 (Commencement No. 2, Savings and Transitional Provisions) Order 2013 (SI 2013/1800 (W.182) (C.74)): this Order brings Part 3 Chapters 2-6 of the 2013 Act (school organisation) into force in Wales on 1 October 2013. It also brings the remainder of Part 3 Chapter 1 into force on 19 July 2013. (16 July 2013)
School Organisation Code (Appointed Day) (Wales) Order 2013 (SI 2013/1799 (W.181)): this Order appoints 1 October 2013 as the day on which the School Organisation Code comes into force in Wales. (16 July 2013)
Ofsted: Good early years provision for all – A report on the responses to the consultation: announces that Ofsted is to make early years inspections tougher, in light of the April 2013 consultation on proposals to revise the framework for the inspection of early years providers. From November 2013, a judgement of ‘requires improvement’ will replace the current ‘satisfactory’ judgement for all early years providers. ‘Good’ will be the minimum standard expected; pre-schools and nurseries requiring improvement will have a maximum of two years to get to ‘good’, otherwise they face the prospect of being judged ‘inadequate’. (2 August 2013)
Home Office: Addressing youth violence and gangs – Practical advice for schools and colleges: advice for leaders, senior teams and staff in schools or colleges affected by gang or youth violence. Schools and colleges have a duty and a responsibility to protect their pupils and students. When inspecting schools, one of the four key judgements that Ofsted inspectors will make is on the behaviour and safety of pupils, and inspections will include a consideration of pupils’ ability to assess and manage risk appropriately, including online safety, substance misuse, knives and gangs. The guidance includes an overview of teachers' powers relating to discipline and legal issues regarding gang membership. (2 August 2013)
School Staffing (England) (Amendment) Regulations 2013 (SI 2013/1940): these regulations, which come into force on 1 Sepember 2013, amend SI 2009/2680 so that the checks that maintained schools are required to carry out on new staff reflect recent changes to the regulation of teacher misconduct. They amend the checks which the governing body of a maintained school is required to carry out before appointing a person to the school staff, by adding a check that the person is not subject to a prohibition order or an interim prohibition order. (8 August 2013)
DfE: The Children’s Commissioner’s reports, ‘They Go The Extra Mile’ and ‘Always Someone Else’s Problem’ – The Government’s response: sets out the Government's response to two reports from the Office of the Children’s Commissioner's school exclusion inquiry, which focused on reducing inequality in exclusion and unlawful exclusion. The response states that the issues that underlie the disparity seen in school exclusions are complex and longstanding, reflecting wider inequalities in society. Schools have clear legal duties in relation to exclusion, equality and the provision of education for pupils with special educational needs. These duties are backed by a robust inspection system and there are established processes for raising complaints that cannot be resolved at a local level. (9 August 2013)
If you wish to discuss any of the items noted in this section please contact Clare Taylor.
Highways
Vernon Knight Associates v Cornwall Council [2013] EWCA
Civ 950 (CA): the Council appealed against a decision that
it was liable for damage to VKA's property caused by floodwater
escaping from one of the roads in the county. VKA owned
a holiday village that suffered damage from flooding on two
separate occasions, as a result of blocked drains and
gullies on the adjacent road after heavy rainfall. The
Council's highways maintenance contractor carried out maintenance
work on the road on a cyclical basis but had not cleared the
gullies for six weeks before the first flood and two months before
the second. The contractor's team leader, O, often went and
cleared the road's gullies during heavy rain, on his own
initiative, as he knew it to be a flooding hotspot but he had not
so on these two occasions. VKA claimed that the Council was in
breach of its duty under s.41 of the Highways Act 1980 and
that it was liable both in negligence and in nuisance for the
escape of water. The judge held that the Council owed a duty to do
that which was reasonable in all the circumstances to prevent or
minimise the known risk of flood damage to VKA's property, and that
its system to prevent blockages was flawed, as the maintenance
teams were not required to identify hotspots to their line managers
and there was no standard procedure requiring the teams to check
hotspots during bad weather. The flooding was caused by O's
failure to follow his normal practice, for which there was no
reasonable explanation or excuse, and so the Council was
in breach of its duty to VKA as an adjoining landowner.
The court held, dismissing the Council's appeal, that although
there were limits on what could be expected from local
authorities in relation to flood prevention, the judge had not
applied too high a standard of care. He properly took into account
all the relevant circumstances and he properly highlighted those
factors which were particularly significant. The Council had a
duty to take reasonable steps to keep the drainage
installation functioning properly and the highways maintenance team
could and should have prevented the flood by following normal
practices. On both the relevant dates O was engaged upon cyclical
maintenance work in his area and there was no reason why he could
not break off to deal with hotspots. (30 July 2013)
If you wish to discuss any of the items noted in this section please contact Jonathan Turner.
Housing
R (MA) v Secretary of State for Work and Pensions and
Birmingham City Council; Equality and Human Rights Commission and
Shelter (Interested Parties) [2013] EWHC 2213 (QB) (QBD): the
court has dismissed a challenge brought by ten disabled people
over the Secretary of State's decision to cut social housing
benefit for residents with spare bedrooms. The claimants contended
that the changes introduced into the Housing Benefit Regulations
2006 by the Amendment Regulations 2012 were unlawful as
they discriminated against disabled people and also that the
Secretary of State had failed to comply with his Public Sector
Equality Duty (PSED) under s.149 of the Equality Act 2010.
The court held, dismissing the appeal, that it was not enough for a
decision-maker in a field of sensitive public policy to draw
attention to a particular pressing social problem and pray that in
aid as an intrinsic justification for the measures adopted to
address it. The concrete question was whether the refusal to
exclude some disabled persons from the regime, and the provision
made and to be made by way of access to discretionary housing
payments (DHPs), constituted a proportionate approach to the
difficulties suffered by such persons in consequence of
the housing benefit policy. The proper approach to
justification in cases involving discrimination in state benefits
was that the court would generally respect the legislature's policy
choice unless it was "manifestly without reasonable foundation".
Here, justification and the PSED marched together as both demanded
an informed and conscientious appreciation of the difficulties
facing the persons or group adversely affected by the prospective
measure. The court found that the PSED was fulfilled and the
effects of the benefit cap were properly considered in terms of the
discipline imposed by the requirement of proportionality. The
Secretary of State's provision of extra funding for DHPs and advice
and guidance on its use was not a disproportionate approach to the
difficulties which disabled persons faced. (30 July
2013)
DWP: Spare room subsidy – Funding update: announces that local authorities are to receive an additional £35m in-year funding to help claimants affected by changes to housing benefit in the social sector who need extra support. This is in addition to existing discretionary housing payment funding that is provided to help support vulnerable residents with the welfare reform changes. (30 July 2013)
DCLG: £1.9 million to tackle bed and breakfast living: announces the seven local authorities that will receive a share of £1.9m funding to find innovative ways to reduce the number of homeless families living in bed and breakfast accommodation. (1 August 2013)
Welsh Government: 357 new homes to help those affected by the 'Bedroom Tax': announces £20m funding help Registered Social Landlords focus on building more one and two bedroom affordable housing, which will enable some tenants affected by the welfare benefit changes to downsize. (2 August 2013)
DCLG: Consultation on the general consents issued under section 25 of the Local Government Act 1988: s.24 LGA 1988 gives local housing authorities power to provide financial assistance in connection with privately let housing accommodation. Section 25 LGA 1988 requires that a local authority cannot exercise the s.24 powers or use another power to provide financial assistance or gratuitous benefit towards works listed in s.24 without the consent of the Secretary of State. Gratuitous benefit includes the discounted disposal of an asset. DCLG is now seeking views on proposals to revise the general consents issued under s.25 so that local authorities will no longer require the Secretary of State's specific consent to dispose of vacant housing land, or vacant dwellings to other registered providers, at less than market value. The consultation closes on 13 September 2013. (5 August 2013)
If you wish to discuss any of the items noted in this section please contact David Isaacson.
Ports and Harbours
DH: Health protection (ships and aircraft) regulations: seeks views on a set of reduced and consolidated Health Protection (Ships and Aircraft) Regulations 2013 to provide updated health protection powers and duties for use at England’s ports and airports, replacing the existing port health regulations (SI 1979/1434 and SI 1979/1435). The proposed new regulations, which are made under the Public Health (Control of Disease) Act 1984 include provisions making local and port health authorities responsible for carrying out health protection functions under the revised regulations. Local and port health authorities will be responsible for appointing a suitably trained and qualified proper officer to carry out these statutory functions. The consultation closes on 4 October 2013. (25 July 2013)
DfT: A guide to good practice on port marine operations: this supplement to the Port Marine Safety Code contains more detailed guidance on issues relevant to harbour authorities. It is designed to provide general guidance and examples of how a harbour authority can meet its commitments in terms of compliance with the Code. The guidance applies to all harbour authorities in the UK that have statutory powers and duties. (29 July 2013)
If you wish to discuss any of the items noted in this section please contact Adam Kendall.
Procurement
Cabinet Office: Procurement Policy Note 05/13 – Further progress update on the modernisation of the EU Procurement Rules: this PPN summarises the main changes in the provisional agreement on the revised EU procurement rules and outlines the next steps in the process to finalise the EU rules and then implement them in the UK. (25 July 2013)
R (Nash) v Barnet LBC [2013] EWCA Civ 1004 (CA): N, a
resident of B Council, appealed against the refusal of permission
to apply for judicial review of the Council's decision 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 High Court held
that N's claim was out of time.
The Court of Appeal held, dismissing N's appeal, that the
proceedings had been properly assessed as out of time. When
identifying the relevant decision, the question to be asked was not
when the decision was finally or irrevocably made but when a
decision was taken in respect of which the statutory duty to
consult under s.3 LGA 1999 first arose. The duty under s.3 was
framed in broad terms and was concerned with "questions of policy
and approach", not specific operational matters. N's complaint was
not about the alleged failure to consult about entering into a
particular contract or about the terms of any such contract but was
about the alleged failure to consult about the whole proposal to
outsource in principle. Statutory consultation was ordinarily
designed to be needed, and was required, at the formative stage of
the relevant process. The decisions in 2010/11 were the relevant
ones for when the statutory duty to consult arose. Considerations
of fairness and certainty all weighed strongly in favour of the
Council. It was inconceivable that the Council (or the potential
tenderers) would have gone down the very costly and time-consuming
process of procurement and competitive dialogue had it been
envisaged that a challenge on the grounds of lack of consultation
on the whole strategy of outsourcing might at the very end of the
day be made. That was quite different from the inherent and
understood risk that the procurement process might not ultimately
result in any concluded procurement contract.
The court approved of the observations in R (Risk Management Partners Ltd) v Brent London Borough
Council [2009] EWCA Civ 490 that "a failure to comply with the
procedure at any stage inevitably undermines the integrity of all
that follows. The right of action is complete immediately and
cannot be improved by allowing the procedure to continue to a
conclusion. Where there has been a failure to comply with the
proper procedure the later award of the contract does not
constitute a separate breach of duty; it is merely the final step
in what has already become a flawed process". (R (Burkett) v Hammersmith & Fulham LBC [2002] UKHL 23
distinguished.) (2 August 2013)
If you wish to discuss any of the items noted in this section please contact Elizabeth Cooper.
Regulatory Services
DBIS: Reform of consumer law – Draft regulations: Government Response to consultations on misleading and aggressive practices and the European Consumer Rights Directive: seeks views on two sets of draft consumer protection regulations that have been issued following the August 2012 consultations on reforming consumer law. The draft Consumer Protection from Unfair Trading (Amendment) Regulations give consumers a new private right to seek redress from businesses and, where appropriate, compensation where they have been the victim of a misleading or aggressive commercial practice. The draft Consumer Contracts (Information, Cancellation and Additional Payments) Regulations implement the European Consumer Rights Directive 2011/83, covering three main areas of consumer rights: information which traders should provide to consumers; cancellation rights and responsibilities for distance and off-premises sales; and measures to prevent hidden costs. The consultation closes on 11 October 2013. (6 August 2013)
DCLG: Dealing with illegal and unauthorised encampments – A summary of available powers: summarises the powers available to local authorities to tackle the formation of illegal and unauthorised campsites and help the reclamation of land and property. This latest version includes the removal of restrictions from planning law on Temporary Stop Notices for unauthorised caravan encampments which are a main residence. It complements DCLG’s Guide to effective use of enforcement powers. The expectation is that local authorities will be proactive in the use of their available powers; police powers can only be used where there has been criminal activity, serious disruptive behaviour or when intervention is requested by the private owner. (9 August 2013)
If you wish to discuss any of the items noted in this section please contact Adam Kendall.
