Case Law Update – Mental Health Act 1983
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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 four 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
East Sussex County Council v Information
Commissioner (C-71/14) (AGO): Article 5(2) of
Directive 2003/4 expressly allows Member States to charge
subject to two conditions: first, charges may be imposed only for
'supplying environmental information'; and second, such
charges cannot exceed a 'reasonable amount'. The First-tier
(Information Rights) Tribunal made a Preliminary Reference to the ECJ in 2013,
asking it to clarify the proper interpretation of the Environmental
Information Regulations 2004 (EIR) that implement Directive 2003/4,
and in particular what local authorities can charge for providing
access to and supplying environmental information.
The Advocate General has now given her Opinion (AGO). She
has found that:
- 'Supplying any environmental information' in Art.5(2) covers the circumstance where the information is given in a manner that enables the applicant to consult and use it in a place and at a time of his choosing and thus independently of where and how that information is held and otherwise made available through other means of access;
- Art.5(2) does not authorise a public authority to recover, through a charge for supplying information, all or part of the costs of establishing and maintaining an environmental information database;
- a charge does not exceed a reasonable amount where it is:
-
- set on the basis of objective factors that are known and capable of review by a third party;
- calculated regardless of who is asking for the information and for what purpose;
- set at a level that guarantees the objectives of the right of access to environmental information upon request and thus does not dissuade people from seeking access or restrict their right of access; and
- no greater than an amount that is appropriate to the reason why Member States are allowed to make this charge and directly correlated to the act of supplying that information.
- in particular, a charge of a ‘reasonable amount’ is to be based on the costs actually incurred in connection with the act of supplying environmental information in response to a specific request. That will include the costs of staff time spent on searching for and producing the information, but it must not also cover overheads such as heating, lighting or internal services as these are not incurred solely in connection with the supply of information in response to a specific request.
The ECJ will now consider the AGO and will prepare its judgment. While the ECJ is not required to follow the AGO, it is a strong indicator of what the ECJ's judgment may say. The implications of the decision are wider than just property searches as it will be relevant to a number of authorities' departments, including planning, environmental health, buildings control and land charges. We recommend that all authorities read the Opinion carefully and consider whether this would mean they are overcharging for providing access to and supplying environmental information. (16 April 2015)
NLGN: Demystifying data – The data revolution and what it means for local government: this paper looks at how data is at the heart of the better running of all modern public services but councils are not yet taking full advantage of the data assets they hold or of the information it could give them if used properly. It sets out the challenge that local authorities face in learning to properly utilise local data, and equally the vast scale of the opportunities doing so affords them. Properly understood, data will help local authorities to make huge savings as they are able to target their services much more effectively; but they will also be able to use this data to bring inward investment and put themselves at the centre of the data driven economy. In the paper, NLGN argue that data is not just a financial asset, but it is also the key that unlocks council’s ability to fully integrate and transform the services they offer local people to truly develop the full potential of their places. (23 April 2015)
If you wish to discuss any of the items noted in this section please contact Emma Godding.
Adult Social Services
LGA/ADASS: Mental Health Crisis Concordat – Local authority provision and practice: joint research in response to commitments in the Concordat, which sets out the standards of care people should expect from public services if they experience a mental health crisis and how the emergency services should respond. it looks at cross-organisational commissioning and delivery arrangements for mental health services, and sets out examples of emerging practice that local authorities and their partners are involved in, in respect of the commissioning and delivery of services and supports for those experiencing a mental health crisis. (17 April 2015)
LGA: Local government and the demography of ageing: this evidence review on the demography of ageing and the role of local government focuses on the main opportunities and challenges posed by population ageing for policymakers at the local level, and the ways in which such opportunities and challenges might be addressed. (1 April 2015)
Violence against Women, Domestic Abuse and Sexual Violence (Wales) Act 2015: this Act has received Royal Assent. The Act places duties on the Welsh Ministers, Welsh local authorities and Local Health Boards to prepare and publish strategies aimed at ending domestic abuse, gender-based violence and sexual violence. It also provides a power to the Welsh Ministers to issue guidance to relevant authorities on how they should exercise their functions with a view to contributing to ending domestic abuse, gender-based violence and sexual violence. The Act contains provision for the appointment of a Ministerial Adviser. The sections on guidance and directions come into force on 29 June 2015; the other provisions come into force on a day or days to be appointed. (29 April 2015)
Mayfield Care Ltd v St Helen's Council [2015] EWHC
1057 (Admin) (Admin Ct): MC, the owner of care homes, applied
for judicial review of the Council's setting of payment rates
for the provision of residential care accommodation for 2013/14. It
contended that the model on which the decision was based contained
a flawed approach to return on capital, the Council had failed to
pay due regard to the actual cost of care, contrary to statutory
guidance, and it had failed to comply with its public sector
equality duty.
The court held, refusing the application, that the Council
was entitled to adopt a hybrid approach to return on
capital, and it was not obliged either to adopt the mathematical
modelling approach throughout, or to provide a detailed and
rational justification for not doing so. The Council
had decided to set its usual costs of care by reference to
rates of return on capital which it arrived at by an exercise of
judgment and experience, taking into account all of the factors
mentioned, which were all relevant. It did not purport to, nor was
it obliged, to undertake what would have been a completely
artificial exercise by ascertaining some notional actual rate
of return on capital and then to have regard to all of the other
relevant factors when deciding what usual rate(s) of return on
capital should be employed. Nor was it obliged to set out some
detailed justification as to the process by which, applying its
judgment and expertise, it had arrived at the rate(s) of return on
capital adopted. The Council was entitled to have regard to its own
experience of what had happened in its area, in particular the
absence of widespread provider failure. It was also entitled to
have regard to the absence of any consultation response from the
majority of care home owners that the usual rates were
insufficient, and to have regard to the results of its benchmarking
exercise. The Council had fulfilled of its public sector equality
duty: the EIA was detailed and comprehensive, and the report
clearly demonstrated that it had due regard to the equality
implications of its decision as a substantive exercise. (21
April 2015)
If you wish to discuss any of the items noted in this section please contact Clare Taylor.
Byelaws
London Councils: Consultation on fixed penalty levels for bird feeding, noise in streets and public urination in the City of Westminster: Westminster has byelaws which prohibit the feeding of birds, noise in streets and other public places, and public urination and defecation. At present, any person who breaches these byelaws can be required to pay a £500 fine. The City Council would like to offer the option for an individual to pay a fixed penalty notice rather than prosecute them. London Councils’ Transport and Environment Committee has the statutory powers to set the levels of fixed penalty notices for byelaws in London, and is therefore consulting on the proposed fixed penalty levels. (22 April 2015)
Local Government Byelaws (Wales) Act 2012 (Commencement No. 2, Transitional Provisions and Savings) Order 2015 (SI 2015/1025 (W.74) (C.70): this Order brings most sections of the Local Government Byelaws (Wales) Act 2012 into force in Wales on 31 March 2015. It also makes transitional and savings provisions. (27 March 2015)
If you wish to discuss any of the items noted in this section please contact Olwen Dutton.
Civil Litigation
Begum v Birmingham City Council [2015] EWCA Civ 386
(CA): B appealed against a costs order, which effectively wiped
out the damages that she had recovered in her successful claim
against the Council for breach of statutory duty. She had
failed in her claims for negligence and misrepresentation based
upon substantially the same facts. B claimed that the Council had
breached its duty under s.125 of the Housing Act 1985 by failing to
disclose serious structural defects in a property sold under the
Right to Buy. The issue in the appeal was whether the judge
was entitled to make such a swingeing costs order by reason of B's
failure correctly to characterise the legal cause of action to
which her pleaded facts gave rise.
The court held, allowing the appeal, that B was the successful
party in the action, and the starting point when awarding costs was
that the court, in the exercise of its discretion, should award
costs in the claimant's favour. The judge had departed from this
position because B had failed in law on her claims for
negligence and misrepresentation. The court could not agree with
the judge: that circumstance could not possibly justify an order
that B paid all of the Council's costs or forfeited 60% of
her costs. The proper way to reflect B's lack of success
on negligence and misrepresentation would be to make a discount of
15% from B's costs up to the second judgment date. The court
ordered that B recover 85% of her pre-issue costs and 85% of
her costs during the periods up to that date. (20 April
2015)
Stratford on Avon DC v Clarke (Unreported) (Ch
D): the Council applied for permission to appeal against a
district judge's summary assessment of its costs in bankruptcy
proceedings against C, a debtor. The Council had served three
statutory demands on C seeking to enforce payment of council tax of
£4,800. The bankruptcy petition hearing was adjourned three
times because C promised to pay. At the fourth hearing the matter
was settled by full payment. The Council claimed £7,500 costs
but C was ordered to pay £1,800 costs. The Council argued that
it had a duty to enforce council tax liability and that it was
important that it could recover as much council tax as possible
without being subjected to an unnecessarily harsh costs burden.
The court held, refusing the application, that the first two
statutory demands should not create an entitlement to costs, as
only the third had formed the basis of the bankruptcy petition.
There was a procedure and pro forma forms in place for issuing a
bankruptcy petition and very little legal intellectual input was
required. There were no grounds for interfering with the judge's
discretion. (20 April 2015)
The judgment is available on Lawtel (subscription
required).
If you wish to discuss any of the items noted in this section please contact Virginia Cooper.
Communities
Home Office: Channel duty guidance – Protecting vulnerable people from being drawn into terrorism: Statutory guidance for Channel panel members and partners of local panels: Channel is a programme which focuses on providing support at an early stage to people who are identified as being vulnerable to being drawn into terrorism. The programme uses a multi-agency approach to protect vulnerable people. This is updated statutory guidance to local authorities and partners of local panels on their duty under the Counter-Terrorism and Security Act 2015 to provide support for people vulnerable to being drawn into any form of terrorism. (23 April 2015)
If you wish to discuss any of the items noted in this section please contact Olwen Dutton.
Duty of Care
Darby (Administratrix of the Estate of Rabbetts) v
Richmond upon Thames LBC [2015] EWHC 909 (QB): D, mother
of R, brought a claim in negligence against the Council,
alleging that the Council had breached its duty to take
reasonable care to evaluate R's housing application. R suffered
from acute myeloid leukaemia and had had a bone marrow transplant.
He lived with D, his sister and her baby. He applied to the Council
to be rehoused. His GP and a consultant haematologist both wrote to
the Council saying that R's health was at risk while living in
the same household as a baby and that his environment was "very
dangerous". The Council approved his housing application but only
awarded him 50 points for his medical condition. R contracted
an infection and died of influenza three weeks later; shortly
afterwards, the Council purported to make him an offer of
accommodation. D claimed that if the Council had properly applied
its housing policy and offered R accommodation before he contracted
an infection, then he would not have died but would have made a
full recovery. The Council applied for summary judgment on, or
to strike out, D's claim, arguing that it owed no common law
duty of care in respect of the exercise of its statutory function
of allocating social housing.
The court held, granting the Council's application, that where a
public authority was required or empowered to apply a statutory
scheme, it did not enter into an assumption of responsibility to a
person assisted under that scheme. Moreover, where such persons
were entitled to exercise remedies conferred by the statutory
scheme, the imposition of a duty of care would generally be
inconsistent with the statutory scheme. D relied on the fact
that the Council had been told expressly of the risks of
R living in the same house as his sister and baby;
however, the suggestion that a duty of care could be imposed
on a public authority by the provision of information was contrary
to principle. The Housing Act 1996, taken in conjunction with the
right to seek judicial review, with the opportunity to seek interim
relief, coupled with the ability to refer maladministration to the
Local Government Ombudsman, provided a sufficiently comprehensive
set of remedies to conclude that a duty of care would be
inconsistent with the statutory scheme. D's case was bound to
fail and the statement of case should be struck out as
disclosing no reasonable grounds for bringing the claim;
alternatively, the court gave summary judgment against D as
the claim had no real prospect of success. (2 April 2015)
The judgment is available on Lawtel (subscription required).
If you wish to discuss any of the items noted in this section please contact Virginia Cooper.
Education
Education Act 2002 (Commencement No. 15) (Wales) Order 2015 (SI 2015/381 (W.40) (C.22)): this order brings Part 1 Chapter 1 (ss.1-5) of the Education Act 2002 into force in Wales on 27 February 2015. That Chapter gives the Welsh Ministers powers to make orders to facilitate the implementation of innovative projects and makes provision about matters related to those powers. (24 February 2015)
If you wish to discuss any of the items noted in this section please contact Clare Taylor.
Equality and Discrimination
Welsh Government: Future arrangements for the Welsh
Government’s Equality and Inclusion Programme for 2017-2020:
seeks views on the future Welsh Government funding framework for
equality and inclusion.
The Welsh Government is also consulting on its Draft Equality Objectives for 2016-2020,
seeking views on what Equality Objectives should be
included in its Strategic Equality Plan 2012-16.
Both consultations close on 10 July 2015. (20 April 2015)
If you wish to discuss any of the items noted in this section please contact Olwen Dutton.
Governance
DCLG: Further Directions to the council of the
London borough of Tower Hamlets and related documents: the
Election Court has found the Mayor of Tower Hamlets LBC Lutfur
Rahman guilty of electoral fraud and ordered that he vacate
his post immediately - see Erlam v Rahman [2015] EWHC 1215 (QB). He was also
banned from standing for election again. The Election
Commissioner Richard Mawrey stated that the effect of his ruling
was that Mr Rahman's election was void and it was as if
the election "had never taken place" and he had not lawfully been
Mayor since he was re-elected for a second term on 24 May 2014.
DCLG has now proposed additional intervention powers under
s.15 LGA 1999 to address failures by Tower Hamlets LBC to
comply with its best value duty. The proposed Directions enable the
Commissioners to order the Council to take any actions needed
to safeguard good governance throughout the council until a new
mayor and top officer team are in place and fully bedded in. The
Secretary of State has appointed two new commissioners to
join the existing team of commissioners headed by Sir Ken
Knight. He has also issued a Direction requiring the council to appoint,
through open competition, a Head of Paid Service, who will be
responsible for managing all the council’s staff and exercising
delegated executive functions. (29 April 2015)
Well-being of Future Generations (Wales) Act 2015: this Act has received Royal Assent and comes into force on a day or days to be appointed. The Act provides for a set of long-term well-being goals for Wales: a prosperous; resilient; healthier; more equal Wales; with cohesive communities; and a vibrant culture and thriving Welsh language. It places a duty on Welsh local authorities and other specified public bodies to set out objectives that are designed to maximise its contribution to the achievement of the well-being goals. It also requires them to explain every year the progress they have made toward achieving their well-being objectives, which must contribute to the well-being goals for Wales. It will also require these bodies to state how they propose to govern themselves and ensure that resources are allocated annually to fulfil the duty. It reforms the approach to integrated community planning in Wales by putting Public Service Boards on a statutory basis. (29 April 2015)
Local Government (Democracy) (Wales) Act 2013 (Commencement No. 2) Order 2015 (SI 2015/1182 (W.79) (C.71)): this order brings ss.55, 56, 57 and 58 (Community councils - access to information) and ss. 68 and 69 (Joint standards committees) of the 2013 Act into force in Wales on 1 May 2015. (16 April 2015)
If you wish to discuss any of the items noted in this section please contact Olwen Dutton.
Government Policy
LGA: Election 2015 – What the manifestos say: the LGA has published a guide that sets out, in simple terms, what all the parties say per policy area. (20 April 2015)
If you wish to discuss any of the items noted in this section please contact Olwen Dutton.
Health and Safety
HSE: Bristol City Council prosecuted after worker thrown from tractor: reports that Bristol Magistrates' Court has fined the Council a total of £20,000 and ordered it to pay £4,700 in costs for two breaches of the Provision and Use of Work Equipment Regulations 1998. The prosecution arose after a park keeper suffered serious injuries when she was thrown from a tractor as it overturned. The magistrates found that the tractor was not fitted with a seat belt or any type of restraint and the Council had failed to ensure that their employee had received adequate training on the use of the tractor. The investigation also identified that the nearly new tractor and trailer had been acquired by the Council shortly before the incident but outside the normal procurement procedure and, as a result, no supplier training was provided. (28 April 2015)
If you wish to discuss any of the items noted in this section please contact Adam Kendall.
Health and Social Care
R (Clarke) v Sutton LBC [2015] EWHC 1081 (Admin)
(Admin Ct): C suffered from severe epilepsy and had a
number of mental health and behavioural difficulties. Enfield LBC
provided C with a community care package under which he was placed
with a specialist epileptic care provider in SLBC's
area, with a tenancy in supported living accommodation.
He later was deemed to have become ordinarily resident in SLBC's
area so that SLBC became responsible for his care package.
Following a review by Enfield which found that he needed
appropriate specialised services, SLBC carried out an assessment
and concluded that C's care could be provided in a non-specialist
placement. C applied for judicial review of SLBC's decision not to
continue to fund the specialist placement funded by Enfield and its
assessment as to his needs.
The court held, granting his application, that C had a heavy burden
to establish that his assessment was unlawful, needing to
prove procedural irregularity or unreasonableness verging on
absurdity. C had been in receipt of these services for a
number of years in circumstances in which his medical team and care
providers had made it clear that his needs had not decreased; this
should be distinguished from the type of case in which a claimant
was seeking services which he had not had in the past. SLBC's
assessment showed a failure to understand and address C's medical
and support needs. There was no evidence from the care provider as
to how it would ensure the availability of sufficient trained staff
to provide the necessary support. SLBC failed to give appropriate
weight to evidence by qualified and experienced experts but had
relied excessively on the non-expert view of a social worker. It
should re-assess C's needs and the extent of care that as a
consequence was required. Furthermore, SLBC's decision that C
should move from his home at which he has a tenancy to a placement
of the Council's choosing where no care plan had been provided
by the proposed non-specialist care provider amounted to an
unlawful interference with C's rights to respect for home and
private life under Art.8 ECHR. (23 April 2015)
R (Whapples) v Birmingham Crosscity CCG; Secretary of
State for Health (Interested Party) [2015] EWCA Civ 435 (CA): W
appealed against the High Court's decision regarding the extent of
the CCG's obligation to provide her with accommodation under s.3 of
the NHS Act 2006 and the National Framework for NHS Continuing
Healthcare and NHS-Funded Nursing Care 2012. W had severe physical
symptoms resulting from PTSD and she was tetraplegic. She applied
for a ruling that the CCG had an obligation under s.3 NHS Act 2006
to provide her with accommodation, as part of the health care
package with which it should provide her free of charge under the
NHS. The CCG conceded that it had power under s.3(1)(b) to provide
or pay for private accommodation but contended that the statutory
regime and National Framework imposed no such obligation.
The court held, dismissing the appeal, that there was no question
that W was entitled to NHS continuing healthcare under s.3. The
context of the National Framework was to establish how those in
need of care should receive it, whether from the NHS, from local
authorities or both. Its aim was to ensure that there were no gaps.
Where ordinary residential accommodation was needed which the
patient could not arrange and fund for himself, the distribution of
responsibility placed such accommodation needs upon local
authorities, rather than the NHS. If the patient could provide his
own accommodation, funded privately or with the assistance of
benefits, he was expected to do so. The National Framework did not,
in circumstances where a patient was receiving NHS continuing
healthcare in his own home, generally contemplate that the NHS
would be responsible for defraying the costs of that accommodation.
W's interpretation of the National Framework, if correct, would
have significant implications for NHS funding of private
accommodation and it was not consistent with the practical guidance
found elsewhere in the document. The judge was right to conclude
that the National Framework did not dictate the outcome that W
sought. The Secretary of State had developed the concept of a
"primary health need" as the criterion for deciding whether a need
should be met by the NHS or by a local authority under s.21 of the
National Assistance Act 1948 and the CCG was entitled to decide
that the provision to W of a private home within s.3(1)(b) of the
NHS Act was not such a need.
There was no public law failing in the CCG's decision not to fund
alternative accommodation on the basis that it was likely to be
available through a housing provider or a housing authority. W had
capacity to make the relevant decisions and she had indicated her
willingness to explore alternative options. All bodies concerned
had been willing to assist her to find accommodation away from the
West Midlands. Effectively, there had been a standoff brought about
by W. She had declined offers of assistance in seeking alternative
accommodation unless the offer included an acceptance on the part
of the CCG to provide it or fund it. In the meantime, and contrary
to her own best interests, she continued to decline any assistance
with her care. The CCG was entitled to conclude either that W had
no reasonable requirement for accommodation provided or funded by
the NHS, or that it was not necessary to provide it (or both).
There was every reason to suppose that, with W's co-operation,
suitable alternative accommodation would be found for her. (29
April 2015)
If you wish to discuss any of the items noted in this section please contact Olwen Dutton.
Housing
R (Rotherham Action Group Ltd) v Rotherham MBC
[2015] EWHC 1216 (Admin) (Admin Ct): RAG applied for
judicial review of the Council's decision to approve the
designation of four areas in Rotherham as being subject to
selective licensing under s.80 of the Housing Act 2004.
RAG represented the interests of private residential
landlords in Rotherham. It contended that the Council had failed to
consult properly or had failed to consider whether there were
other courses of action available to them to achieve the objectives
relating to low demand housing, in accordance with s.81(4)(a) of
the Act.
The court held, dismissing the application, that s.81(4) began with
the mandatory words "The authority must not make a particular
designation under section 80 unless" and it was this that
needed to be examined. The judge construed s.81(4)(a) as imposing a
mandatory duty on the Council to consider other available courses
of action that might be effective. If it did so consider, then
it could make a designation even if there were other courses
of action that might be effective. In making that decision,
which was discretionary, the Council must not act perversely
or irrationally, which depended on the circumstances of the
case. Here, the Council had not acted perversely or irrationally
in choosing a mandatory scheme over a voluntary one, having
considered the voluntary scheme. There were cogent reasons for
preferring the mandatory scheme. (30 April 2015)
If you wish to discuss any of the items noted in this section please contact David Isaacson.
Libraries
LGA: Transforming local archive services – A new collection of 13 case studies: this publication looks at how the landscape of local authority archives across the country is changing, along with the way in which they deliver their services. Throughout the UK archives are finding innovative solutions in response to the need to find savings. It contains innovative examples about how local archive services are making a real difference to people’s lives. It also shares how local archive services, against the backdrop of continued austerity, are working differently and increasingly in partnership with other council services and partners, adopting new delivery models and sharing services and expertise with their neighbours. (14 April 2015)
If you wish to discuss any of the items noted in this section please contact Clare Taylor.
National Park Authorities
National Park Authorities (England) Order 2015 (SI 2015/770): this Order, which comes into force on 1 July 2015, consolidates six SIs relating to the National Park Authorities that were established by SI 1996/1243. (19 March 2015)
If you wish to discuss any of the items noted in this section please contact Olwen Dutton.
Powers and Duties
Welsh Language Standards (No.1) Regulations 2015 (SI 2015/996 (W.68)): the Welsh Language (Wales) Measure 2011 provides for the specification of standards of conduct in relation to the Welsh language, replacing the system of Welsh language schemes provided for by the Welsh Language Act 1993. These regulations, which come into force on 31 March 2015, specify standards in relation to the conduct of the Welsh Ministers, county and county borough councils and National Park authorities; they also authorise the Welsh Language Commissioner to give a compliance notice to one of those bodies requiring it to comply with one or more standards. There are six different types of standards, as defined in ss.28-32 of the 2011 Measure: service delivery; policy making; operational; record keeping; promotion; and standards that deal with supplementary matters. (24 March 2015)
If you wish to discuss any of the items noted in this section please contact Olwen Dutton.
Procurement and State Aid
European Commission: Consultation on remedies in public procurement: seeks views on the effectiveness of the provisions of the Remedies Directive 2007/66. The Commission must report to the European Parliament and to the Council on the effectiveness of the Remedies Directive, in particular of the alternative penalties and time limits. Also Directive 2007/66 must undergo an evaluation in 2015, to assess the functioning of the provisions introduced by it. The consultation closes on 20 July 2015. (24 April 2015)
European Commission: State Aid – Commission gives guidance on local public support measures that can be granted without prior Commission approval: the Commission has concluded in relation to seven measures granting public support to purely local operations that they do not involve state aid within the meaning of EU rules, because they are unlikely to have a significant effect on trade between Member States. The decisions concern the Czech Republic, Germany, the Netherlands and the UK. The decisions provide Member States and stakeholders with additional guidance to determine which cases do not need to be cleared by the Commission under EU state aid rules. They complement the Commission's revised General Block Exemption Regulation 651/2014 (GBER), which considerably extended the scope of exemptions from prior approval by the Commission. (29 April 20150
Bristol Missing Link Ltd v Bristol City Council [2015]
EWHC 876 (TCC): the Council applied to lift the automatic stay
that had been imposed under the Public Contracts Regulations 2006
after BMLL challenged the award of a significant contract for
domestic violence and abuse support services. BMLL were the
incumbent providers of the service and they tendered for a new
contract but were unsuccessful. BMLL contended that their scores
had been adjusted downwards as part of the moderation process,
and they also criticised scores awarded. They sought disclosure of
all relevant documents.
The court held, refusing the application, that disclosure in
procurement cases involved balancing the interests of justice
against the background facts of the particular case. What the
authority should not do was to try and have it both ways. It ought
not to refuse requests to provide documents relating, say, to the
evaluation of the successful tenderer's bid, or the bid itself, but
then, on the application to lift the suspension, provide for the
first time evidence about the process or the successful bid in
support of its case. That approach was at least potentially unfair,
because it was relying on potentially controversial material which
the unsuccessful tenderer had been given no proper opportunity to
consider. Here, it was potentially unfair for the Council to pick
and choose what documents they provided and when, as it suited
them. Authorities had sometimes argued that the claimant's
case was hopeless, so there was no serious issue to be tried. This
has required the judge to undertake a detailed analysis of the
merits or otherwise of the pleaded case in order to reach a view.
The judge was not sure that this should be happening quite as often
as it was. In the ordinary procurement case, it would often be
unproductive for the parties (and a waste of judicial resources) to
spend a good deal of time arguing about the merits or otherwise of
the underlying claim. The threshold was, after all, a low one.
Where, as here, there were clear issues arising out of
individual scores, it would be difficult to conclude that there was
no serious issue to be tried, especially as the relevant documents
had yet to be disclosed. On the evidence, there was a
serious issue to be tried which the court could not possibly
resolve on an interlocutory basis.
Applying the balance of convenience test, the advantages to the
Council if the suspension was lifted were either non-existent or
negligible, while the disadvantages to BMLL were fundamental.
Therefore the suspension would remain in force until after the
expedited trial. (1 April 2015)
If you wish to discuss any of the items noted in this section please contact Emily Heard.
Regulatory Services
R (Hemming (t/a Simply Pleasure Ltd)) v Westminster City
Council [2015] UKSC 25 (Sup Ct): the Council appealed
against the Court of Appeal's decision in relation
to a claim by H, sex shop owners, that licence fees charged for
running those establishments were unlawful. H argued that the costs
payable by applicants on account of the costs of enforcement of the
licensing scheme which were (although refundable) unrelated to the
costs of processing applications should have been borne out of the
Council's general funds and/or were, although payable on
application by all applicants, sums which could only benefit
successful applicants. The CA ruled that the cost of enforcing
the licensing regime against unlicensed operators did not fall
within the relevant provisions of the Services Directive
(2006/123/EC) and the Provision of Services Regulations 2009 (POS),
and was therefore unlawful. On that basis, an element of the annual
£26,435 licence fee levied since the enforcement date of the
relevant provisions had to be refunded to H for each year it
had been charged, exposing the Council to potential refunds of
£2m.
The Supreme Court held that as a matter of domestic law, it was
open to a licensing authority to require an applicant for the grant
or renewal of a licence to pay a fee to cover the running and
enforcement costs of a licensing scheme, and to make this fee
payable either outright or on a refundable basis. The
provisions of the Directive suggested that the actual regulation of
or access to or the exercise of a service activity was a distinct
matter from any prior authorisation scheme and its procedures.
Nothing in Art.13(2) of the Directive precluded a licensing
authority from charging a fee for the possession or retention of a
licence, and making this licence conditional upon payment of a fee.
There was no reason why that fee should not be set at a level
enabling the authority to recover from the licensed operators the
full cost of running and enforcing the licensing scheme, including
the costs of enforcement and proceedings against those operating
sex shops without licences.
The Supreme Court drew a distinction under POS between the fee
charged to deal with an initial application for a licence and the
further fee(s) to maintain the licence which were subject to
different requirements under the Directive. As such, if an
initial charge for an application fee was made and a further charge
sought once the licence was granted then, subject to the
further requirements under the Directive, this was
lawful. However, the Supreme Court found the position where
both the application fee and the further charge were made at the
outset more problematic even if the further charge was refunded
following an unsuccessful application. The Supreme Court has
referred this issue to the European Court of Justice for
determination. (29 April 2015)
We have published an Alert that analyses the
decision and looks at its practical consequences for local
authorities: Good outcome for local authorities in Westminster
sex shop case.
If you wish to discuss any of the items noted in this section please contact Adam Kendall.
Traffic and Transport
Chaumeton v Camden LBC [2015] EWHC 1010 (Admin)
(Admin Ct): C, a member of a motorists' lobbying group, applied
for judicial review of the Council's decision to increase or change
parking charges across the borough. C contended that purpose of the
increases and changes was to raise additional revenue for various
purposes, which was unlawful. The Council's Transport Strategy
included the objectives of reducing motor traffic levels and
vehicle emissions to help make Camden a 'low carbon and low waste
borough', and to encourage healthy and sustainable travel choices
by prioritising walking, cycling and public transport in Camden.
The Finance Director's report stated that parking charges were
being increased to reduce emissions, create a greater incentive for
motorists to downsize their vehicle and to discourage multiple
vehicle ownership.
The court held, refusing the application, that it did not
follow from the fact that the income raised exceeded costs that
creating that excess was the purpose of the increases and changes.
Here, there was evidence that the purpose was not to raise revenue
but was to address the problems that come with private vehicle
traffic. C's proposition that any local authority paid for
parking scheme must be directed to be revenue neutral was
mistaken. The requirement that an authority must not use parking
charges for the purpose of raising additional revenue did not mean
that the objective had to be revenue neutrality. Indeed,
addressing the problems that come with private vehicle traffic
might mean a parking scheme that was far from revenue neutral. The
mere fact of "budgeting for a surplus" or of recognition of "the
likelihood of a surplus" was not "evidence of an improper purpose"
or "determinative of the legitimacy" of parking orders. C had
argued that by treating an excess of revenue over costs as
"savings" to its general account, the Council were
"attempting to circumvent the law"; however, the Council's
response to his FOI request advised that the surplus on the parking
account was applied to highway and traffic improvement and
maintenance, concessionary fares, and home to school transport, and
C had not shown in what way this application contravened the
guidance and legislation. (17 April 2015)
If you wish to discuss any of the items noted in this section please contact Virginia Cooper.
