Authority Update 12/8/16

Brief details of recent Government policy and legal developments relevant to those involved in local government work

15/08/2016

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: 

    Children's Services    European Union
    Communities    Health and Social Care
    Delivery of Services    Housing
    Devolution    Human Rights
    Economic Development    Intellectual Property
    Elections    Judicial Review
    Emergency Planning    Police
    Employment    Shared Services
    Equality and Discrimination    Tree Preservation Orders

Children's Services

Ofsted: Joint targeted area inspections – Framework and guidance: Ofsted is to carry out a series of six joint targeted area inspections (JTAIs) with the Care Quality Commission, HMI Constabulary and HMI Probation from September this year. The JTAIs will examine the multi-agency response to children affected by domestic abuse. Local Safeguarding Children Boards and member agencies can use this guidance to understand how inspections are conducted. There is also Guidance for joint targeted area inspections on the theme: children living with domestic abuse. (10 August 2016)

Re W (A Child) [2016] EWCA Civ 793 (CA): adopters appealed against the judge's decision to allow A's grandparents to oppose the application for A's adoption. A had been placed into care at birth and was placed with prospective adopters at seven months. She had lived with them ever since and at the time of the appeal was aged just over two years. A's paternal grandparents only became aware of A's existence after A's parents had another child, J, who was also taken into care. J was later placed with the grandparents, and a third child was also placed within the parental family. The grandparents applied for permission to oppose A's adoption and to apply for a child arrangements order. The judge dismissed the adoption application and making a Special Guardianship Order in favour of the paternal grandparents to take effect once transitional arrangements had been put into place. The adopters appealed.
The court held, allowing the appeal and setting aside the judge's order, that the judge's welfare evaluation had been fatally flawed. Where an adoptive placement had been made and significant time had passed so that it could be seen that the looked for level of secure, stable and robust attachment had been achieved, the welfare balance to be struck where a natural family claimant came forward at this late stage to offer their young relative a home must inevitably reflect these changed circumstances. Where the relationship that the child has established with new carers was at the core of one side of the balancing exercise, the question of what harm, if any, the child might suffer if that relationship was now broken must be considered. Here the generalised evidence of the independent social worker (ISW) and the Guardian, which did not involve any assessment of A and the adopters, fell short of what was required. The "nothing else will do" test was a useful distillation of the proportionality and necessity test as embodied in the ECHR and reflected in the need to afford paramount consideration to the welfare of the child throughout her lifetime; it did not bypass the need to undertake a full, comprehensive welfare evaluation of all of the relevant pros and cons. It was only once the comprehensive, full welfare analysis had been undertaken of the pros and cons that the overall proportionality of any plan for adoption fell to be evaluated and the phrase "nothing else will do" could properly be deployed. If the ultimate outcome of the case was to favour placement for adoption or the making of an adoption order it was that outcome that fell to be evaluated against the yardstick of necessity, proportionality and "nothing else will do". Here, the ISW and Guardian had focused on the "presumption" or "right" for a child to be brought up by a member of her natural family, and the judge had relied on their evidence without drawing attention to their erroneous approach.
The judge's welfare evaluation of the pros and cons displays was a good example of what was required by the modern case law, and so should stand. However, the fact that the judge did not identify any error in the approach taken by the ISW or the Guardian, which was compounded by the other factors in the proceedings, made it inevitable that the judge's determination must be set aside. (29 July 2016)

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

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Communities

Prime Minister's Office: PM rewrites plan to put money from infrastructure in the hands of local people: announces proposed changes to the Shale Wealth Fund, which was previously expected to share proceeds from shale revenues only with community trusts and local authorities.
HM Treasury has issued a consultation on the Shale Wealth Fund, which seeks views on: the allocation of funding from the Shale Wealth Fund to different stakeholder groups; the extent to which the industry community benefits scheme and the Shale Wealth Fund should be aligned; and potential delivery models, to ensure that households and communities benefit, and to decide how funds are spent, and how any process should be administered. The consultation closes on 26 October 2016. (7 August 2016)

Cabinet Office: Local charities and community groups match fund – Guidance: the Office for Civil Society is seeking to select a fundraising campaign to support with at least £250,000 of match funding. It is inviting applications to deliver the match funding through a fundraising campaign. The match funding should be used to encourage donations to local charities and community groups, to help them to raise vital income, attract new donors, and raise awareness of their work. Applicants must have experience of delivering match-funded fundraising campaigns that benefit the whole or part of England and must be able to use the match funding through a campaign starting in December 2016 at the latest. The closing date for applications to deliver the match funding is 21 August 2016. (8 August 2016)

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

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Delivery of Services

Institute for Government: Local public service reform – Supporting learning to integrate services and improve outcomes: a previous IoG briefing paper, Joining Up Public Services around Local, Citizen Needs, identified five perennial barriers that repeatedly hinder integration at a local level, as well as several insights into how to tackle them. Limited sharing of what works (and doesn’t work) emerged as a critical barrier that needs urgent attention. This paper looks at what would help people involved in integrating public services locally to share experiences and learn from one another to improve outcomes on the ground. An accompanying set of eight case studies provides more detail about the methods and impact of different approaches designed to support learning around local public service reform more generally. (2 August 2016)

Institute for Government: Failing well: the system of organisation that delivers public services in the UK is complex and it is inevitable that failures will occur. But as recent high-profile cases have shown, when essential public services fail, citizens can be left without essential support or care. While new models of service delivery present opportunities for improvement, the risk of failure is heightened during change and transition. This research analyses the experiences of four different organisations that endured serious failures but nonetheless managed to successfully return to providing good services for citizens. It highlights eight lessons that can be learned from these case studies; it also draws some broader conclusions on understanding the nature of failure in the first place which should be borne in mind as current and future reforms are implemented. (27 July 2016)

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

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Devolution

IPPR: Devo-health – What & why?: this booklet sets out the context for IPPR’s research on devo-health and the questions that it would like this programme of work to address. It finds that at the moment, ‘devo-health’ is more akin to delegation than devolution – this may need to change, with local mayors given clearly defined roles in the NHS and the centre stepping away from its responsibilities. Devo-health should be considered as one option in looking to drive reform going forward: there is a better case for proceeding with devo-health in urban areas with clearly established geographic boundaries and with a strong history of joint working between the NHS and local government. It also finds that there are a number of unanswered questions: How much freedom should local areas have to differ from national policy? Should full devolution follow delegation? Is there a role for fiscal devolution? How can local areas unlock the potential benefits of devo-health, and what should local areas do with their devolved powers? How do we keep the ‘N’ in the NHS while also delivering place-based public services? Will the funding pressures on the NHS and local government ultimately undermine efforts at reform? (10 August 2016)

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

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Economic Development

DBEIS: New ministerial local growth champions appointed by Business and Energy Secretary: the Business and Energy Secretary Greg Clark has announced that all ministers in DBEIS will act as local growth champions across the UK and will be tasked with building relationships with a number of LEPs. Ministers will also engage with businesses and local leaders in the devolved administrations in Wales, Scotland and Northern Ireland, and will act as a first point of contact for respective LEPs in England within DBEIS. This press release lists which LEPs have been allocated to which minister. (11 August 2016)

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

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Elections

Cabinet Office: Securing the ballot – Report of Sir Eric Pickles’ review into electoral fraud: the former Secretary of State for Communities and Local Government Sir Eric Pickles was asked in 2015 to consider what further changes were needed to make the electoral system more secure, in light of the Tower Hamlets election court judgment that saw the disqualification of the elected mayor for a number of corrupt and illegal practices. His report makes a series of 50 recommendations, including:  clamping down on postal vote ‘harvesting’ by political activists;  piloting some form of identification at polling stations; action to tackle the links between electoral fraud and immigration fraud; and stronger checks and balances against municipal corruption. On governance and oversight, he recommends that:

  • officers at the most senior level in a local authority should be appointed as Electoral Registration Officers and Returning Officers and should undertake relevant training to ensure that they have the skills required for the roles; 
  • the position of Electoral Registration Officers and Returning Officers is clarified with respect to Freedom of Information rules and they are made subject to the relevant provisions to release information; 
  • a protocol for reporting within a local authority on issues relating to electoral fraud should be developed and guidance provided in conjunction with the National Police Chiefs Council and other relevant bodies; and 
  • the Government should undertake a review of how democratic checks and balances can be increased in local government executive structures where power is concentrated.

(12 August 2016)

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Emergency Planning

MoD: 2015 to 2020 government policy – Military aid to the Civil Authorities for activities in the UK: if there is an emergency in the UK, local emergency services provide the first response; government departments or civil authorities may then request military assistance from MOD. This is officially termed Military Aid to the Civil Authorities (MACA). This policy paper summarises the MoD's role and the principles governing the provision of military assistance. (4 August 2016)

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

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Employment

Nottingham City Council v HM Revenue and Customs (Income Tax/Corporation Tax: Employment income) [2016] UKFTT 520 (TC): the Council had introduced a salary sacrifice arrangements under which employees could sacrifice part of their salary and obtain a tax-free bus pass. It provided details of the proposed arrangements to HMRC, and HMRC confirmed that they met the requirements of s.243 of the Income Tax (Earnings and Pensions) Act 2003 so that there would be no tax or NICs liability arising from their provision. Six years later HMRC revised its guidance on s.243. The Council’s bus pass arrangements did not satisfy some of the new conditions so it terminated the salary sacrifice arrangements and stopped providing free bus passes. It then implemented a new salary sacrifice arrangement for a single employee, S, under which he entered into a salary sacrifice arrangement and was provided with a zonal bus pass which the Council purchased from the local bus operator. HMRC contended that the free bus pass given by the Council to S was a benefit in kind. It therefore amended S’s self-assessment return to include tax on the provision of the bus pass. The Council and S submitted that the bus pass was exempt from tax by virtue of because it constituted "financial support for a local bus service", so the bus pass was not a benefit in kind and no income tax or Class 1A NICs were due on its provision.
The tribunal ruled that neither the bus pass nor the other support provided to the local bus operator constituted "financial support for a local bus service" within the meaning of s.243. On the natural reading of the 2003 Act, the tax-free nature of the bus pass followed from and was the result of some support given by the employer to the bus company; it could not itself constitute that support. If the mere purchase of a bus pass were sufficient to constitute "support", all employer-provided bus passes would be tax-free as long as they were for local services.  Had Parliament intended that outcome, it would have been a simple matter to have amended the voucher rules. Instead, those provisions remained in place generally, with an exception being made only where an employer had provided "support" for the bus service. So the purchase of a bus pass by an employer was not "support" within the meaning of s.243 – something more was required. Had the Council given support to the bus operator to fund the public bus system used by its employees, a zonal bus pass given free to employees would not have been subject to income tax. However, on the facts of this case, there was no evidence of any such support: neither the purchase of S’s bus pass, nor the other payments, came within s.243. (29 July 2016)

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

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Equality and Discrimination

Pointer v Brixworth Parish Council (Unreported, ET): an Employment Tribunal has ruled that a parish council had failed in its duty to make reasonable adjustments under s.58(6) of the Equality Act 2010 by failing to provide P, a councillor with visual impairment, with reading aids to carry out his duties. The parish council had passed a resolution to pay for an iPad for P but then later said that P should pay for its maintenance and insurance. P contended that this infringed the Act. The Tribunal stated that if P's complaint had been that he was in receipt of an iPad rather than money, the tribunal would have rejected his claim - the obligation under s.20 of the 2010 Act was to provide an auxiliary aid, not money to procure the same. However, the parish council's requirement that P pay towards the insurance and maintenance of equipment was in clear contradiction of s.20(7). It was regrettable that, rather than resolve the issue by removing the unlawful requirement placed P to pay for maintenance and insurance, the parish council entered into a lengthy and continuing and ultimately damaging dispute. That they had sought to lay the blame for this at P's door was wholly inappropriate. The obligation to make reasonable adjustments lay with the council alone. P had no obligation in that regard. The tribunal also noted that the fact that a disabled person sought to enforce his or her rights through a legal process when the obligation had not been met should not be met with the reaction which the council had in this case to subsequently ‘pull up the drawbridge’ and fight the proceedings. The judgment is available on the Local Government Lawyer website. (6 June 2016)

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

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European Union

House of Commons Library: Brexit – Some legal and constitutional issues and alternatives to EU membership: this updated paper considers how the UK will leave the EU, some legal and constitutional issues, and possible alternatives to EU membership. It includes discussion of the process for leaving the EU, whether the UK will join a different grouping of states or go it alone, and whether EU or UK citizens or businesses have any vested rights. (28 July 2016)

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

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Health and Social Care

LGA / NHS England: The Better Care Fund – Operating guidance for 2016-17: guidance to partners for local Better Care Fund (BCF) plans – CCGs, local authorities, and Health and Wellbeing Boards – on the operational requirements for these plans in 2016-17. It sets out the legislation underpinning the BCF, the accountability arrangements and funding, the reporting and monitoring requirements for 2016/17, and the role of the BCF support team in supporting delivery. The guidance also outlines how progress against plans will be monitored and what the escalation process will look like. (2 August 2016)

HC Library: Social care – Paying for care home places and domiciliary care (England): this briefing note looks at the means-test that applies to care home residents and those in other settings (such as care at home) in need of social care, and provides information on personal budgets. (27 July 2016)

Localis: Local empowerment – How to achieve a sustainable health service: this report makes the case for a devolution revolution in the National Health Service, arguing that a healthier balance between central and local control is possible and practical. The publication, sponsored by KPMG, argues that much more NHS funding should be raised and controlled locally, with local NHS and local government leaders devolved total control of their entire local health budget. Correspondingly local areas should be increasingly free of central government control and direction, with greater local flexibilities. To provide the framework for this 'devolution revolution', Localis recommends that areas across the country negotiate health devolution deals with Government that empower local leaders to drive integration, transformation and financial sustainability in their local health and care economies. (22 July 2016)

Welsh Government: Consultation on regulations and statutory guidance regarding area plans following the population assessment: seeks views on draft guidance and regulations on the area plans which set out the range and level of services that local authorities and Local Health Boards propose to provide or arrange, under s.14A of the Social Services and Well-being (Wales) Act 2014. These area plans are required following the carrying out of a population assessment under s.14 of the 2014 Act. The consultation closes on 3 October 2016. (11 July 2016)

R (GS) v Camden LBC [2016] EWHC 1762 (Admin) (Admin Ct): GS, a Swiss national who suffered from physical and mental health problems, challenged the Council's decision following an assessment under the Care Act 2014 that she did not have a need for care and support, in particular a need for accommodation. GS claimed that the Personal Independence Payment she received was insufficient for her to secure accommodation and meet her needs; therefore, it was necessary for the Council to provide assistance. The Council contended that the need for accommodation was not a need for care and support within the Care Act 2014 and that it had no power under statute to provide for such a need. The Council argued that case law on s.21(1) of the National Assistance Act 1948, the predecessor to the Care Act 2014, had established that a need for accommodation alone was not a "need for care and support." GS submitted that the cases under the 1948 Act were no longer relevant and that "care and support" had a different meaning to "care and assistance," which was the relevant phrase under the 1948 Act, and that the phrase used in the Care Act was broad enough to include a need for simple accommodation.
The court held, granting the application, that GS's requirement was for accommodation alone, which was not a need for care and support. Both sections 18 and 19 of the Care Act 2014 referred to meeting an adult's needs for care and support, subject to criteria on residency and cost, neither of which were relevant to this matter. Nor was the Council obliged under s.24(2) of the Care Act 2014 to give help and advice on meeting or reducing needs where there was no duty to meet needs under s.18 or it decided not to exercise its power under s.19, as there was nothing here amounting to a need for care and support.
However, the council did have a power under s.1 of the Localism Act 2011 that it could, potentially, exercise in GS's favour. It was therefore necessary to consider whether the power had been converted into a duty and whether or not it was necessary to exercise that power or perform that duty to provide support and assistance for the purpose of avoiding a breach of GS's Convention rights. Taking into account the entirety of GS's circumstances, including her potential social isolation, physical disabilities, pain, mental health condition and the physical difficulties that she encountered, there would be a breach of Art.3 if she were to become homeless and the treatment of her would be inhuman and degrading. In the absence of evidence of available and affordable accommodation, it would be an imminent breach if the current accommodation were to be withdrawn. The Council had a duty to act so far as was necessary for the purpose of avoiding a breach of GS's Convention rights, and so its decision not to exercise the power available to it under s.1 of the Localism Act was unlawful. (27 July 2016)
We have published a comment on this case: Accommodation under the Care Act and the General Power of Competence.

Richards v Worcestershire CC [2016] EWHC 1954 (Ch) (ChD): R, who suffered from frontal lobe damage and bipolar affective disorder, was assessed for after-care services under supervision under s.117 of the Mental Health Act 1983. The supervision application referred to an attachment with details of the after care services to be provided, but there was no such attachment and no s.117 after care plan had since come to light. After his discharge from hospital, R was moved into a care home and then to his own home with full time carers; he paid for these costs privately. R brought a claim for restitution against the local authority and the NHS commissioning group who had made the after-care assessment. He argued that the Council and CCG had a duty to provide him with after-care services, which extended to the provision of the various services which had thus far been paid for privately, and that their failure to pay for these services unjustly enriched the defendants. The Council and CCG applied to strike out R's claim on the grounds that it was not properly the subject of private law proceedings.
The court held, refusing the application, that the defendants had not demonstrated that R could not have a restitutionary claim against them. A successful unjust enrichment claim depended on establishing an "unjust factor". R's claim was based in part on the simple proposition that payments made on his behalf served to relieve the defendants of liabilities which they ought to have been bearing under s.117. So far as the court was aware, failure to perform a public law duty had never of itself been held to be an unjust factor for the purposes of a claim in unjust enrichment or a sufficient basis for any other restitutionary claim. R had also alleged that his deputy made payments under mistake, an accepted unjust factor. Since none of the relevant payments was to either defendant, there could be no scope for a conventional claim to recover money paid under mistake; but that was not necessarily fatal to R's claim. R should be permitted to pursue his restitutionary claim. He was asserting a private law claim, albeit one that raised a question as to whether the defendants had performed public law duties, and the claim did not involve any allegation that the defendants had failed to perform their statutory duty to assess and determine R's s.117 needs. Further, while CPR 54.3 now allowed "restitution" to be claimed within judicial review applications, such an application still could not be for restitution alone and yet R's concern was to obtain financial redress rather than any other relief. It was far from clear that a private law claim for restitution should be subject to the strict time limits applicable to judicial review applications rather than the limitation periods laid down for private law claims generally. (28 July 2016)

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

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Housing

Smith Institute: Devo-housing – The emerging agenda: this report analyses the place of housing, planning and regeneration in the 11 devolution deals agreed to date. It shows how devolution agreements on housing to date have been patchy and piecemeal, lacking serious funding or new powers. (28 July 2016)

R (Jalal) v Greenwich RLBC [2016] EWHC 1848 (Admin) (Admin Ct): J applied for judicial review of the Council's social services department's refusal to secure further accommodation for him and his family under s.17 of the Children Act 1989. The Council had concluded that the children were not in need because J had the resources to find a home before his temporary accommodation from the housing services was due to end. J argued that in light of his continued inability to find a home, the subsequent refusals to provide interim accommodation pending a re-assessment of the family's need were irrational. It was inconsistent to assert that the children were "not in need" after that date and in the circumstances no reasonable social services authority would have refused to accommodate pending a re-assessment.
The court held, refusing J's application, that s.17 conferred a power to assist, not a duty. There was no material change of circumstance here but merely the passage of time and an extension of pre-existing circumstances. The Council had taken sufficient steps to satisfy their statutory responsibility and there was nothing contradictory about their decision making. The Council's proposal to accommodate the children but not parents, should J still not find accommodation, was reasonable. (27 July 2016)

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

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Human Rights

HC Home Affairs Committee: Migration crisis: this report concludes that  EU action to address a crisis it should have foreseen has been "too little, too late", with the EU-Turkey agreement a partial solution at best which raises serious humanitarian, human rights, logistical and legal concerns. The report publishes for the first time the number of Syrian refugees resettled in each local authority area. It contends that these figures show many local authorities are not pulling their weight in resettling Syrian refugees, and there is scant evidence that the Government is on track to meet its commitment to resettle 20,000 Syrians by 2020. The Committee says Ministers should show leadership by encouraging their own constituency authorities to take refugees. (3 August 2016)

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

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Intellectual Property

IPO: Changes to Copyright Law – Guidance on changes to Section 72 of the Copyright, Designs and Patents Act 1988: free public showing or playing of broadcast: guidance for all organisations (including charities, voluntary and not-for-profit organisations) which show television broadcasts in public, about changes that came into force on 15 June 2016. (13 July 2016)
We have issued an alert highlighting the implications of these changes for public bodies, such as care homes: Changes to copyright law may affect your ability to show free-to-air TV channels in public spaces.

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

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Judicial Review

HM Courts & Tribunals Service: Administrative Court judicial review guide: detailed legal guidance on judicial review cases in the Administrative Court, that covers: starting a claim; applying for permission for judicial review; substantive hearings; remedies; case management; specific practice points; ending a claim; costs; and appeals. The guide also includes contact details for the court, information on forms and fees, and addresses for serving documents on government departments. (25 July 2016)

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

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Police

CIPFA: Delivering good governance – Guidance notes for policing bodies in England and Wales: these guidance notes are intended to assist PCCs, Chief Constables and associated organisations and systems, such as strategic alliances and other collaboration arrangements, partnerships and other vehicles established by PCCs, in reviewing the effectiveness of their own governance arrangements by reference to best practice and using self-assessment. They should be read alongside Delivering Good Governance: Framework (2016 Edition), that  sets the standard for local authority governance in the UK. (31 July 2016)

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

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Shared Services

DCLG: Merger of Wandsworth and Richmond Upon Thames pension funds: seeks views on draft regulations that amend the Local Government Pension Scheme Regulations 2013 (SI 2013/2356), in order to merge the pension funds maintained by the London Boroughs of Wandsworth and Richmond upon Thames. This follows the boroughs' announced plans to enter into shared staffing arrangements with the intention of delivering £10m of savings to the council tax payers of each borough. The members’ pension benefits are set out in the existing regulations and will not be changed. Wandsworth already provides Richmond’s fund administration, and members' benefits and contributions are set nationally and will not change. The consultation closes on 15 September 2016. (4 August 2016)

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

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Tree Preservation Orders

Burge v South Gloucestershire Council [2016] UKUT 300 (LC): B claimed  compensation under s.203 TCPA 1990 for loss and damage to a conservatory attached to the rear of their house that was incurred in consequence of the Council's refusal of consent to fell an oak tree that was the subject of a TPO. B contended that a right to compensation arose automatically upon the Council’s refusal to fell the protected tree and thus all reasonably foreseeable loss or damage which it was would be incurred as a consequence of the refusal was payable. The Council argued that the conservatory was so inadequately constructed that it would have failed anyway, regardless of the presence of trees; alternatively that B could have reasonably foreseen that a conservatory which did not comply with the relevant industry guidance concerning construction in areas of plastic clay would in due course suffer damage, and thus no compensation was payable.
The court held, allowing the claim, that whether or not B’s conservatory complied with the requisite building standards was immaterial. The question was whether at that time loss or damage to the conservatory being erected was reasonably foreseeable to B themselves. It was for the Council to show that B knew, or ought to have known, that there was a real risk of the tree causing subsidence damage to the new conservatory and it had failed to show this. There was no evidence that B knew the depth of the foundations, the proximity of the Oak, or for that matter its potential effect in terms of subsidence damage of its proximity to the conservatory being built. They had employed professional contractors to build the conservatory and had put their faith in those so employed as they were perfectly entitled to do. The Council's argument that if such claims succeeded, anybody would be entitled to erect an inadequate building near a protected tree and claim compensation for subsequent damage, did not sit at all comfortably with the facts of this case. The conservatory was built in 2003 at a time when there were no protected trees in the vicinity. The TPO protecting the oak was made in 2007, confirmed the following year, and consent to fell was refused in 2010. It could not sensibly be argued that B had sought from the outset to use the compensatory machinery available to those affected by TPOs to their personal advantage and to the disadvantage of taxpayers generally. The Council was ordered to pay B compensation assessed at £25,000, including interest. (27 July 2016)

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

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