Authority Update 28/7/17

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

01/08/2017

Claire Booth

Claire Booth

Professional Support Lawyer

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

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

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

    Adult Social Services    European Union
    Children's Services    Finance and Rates
    Commons Registration    Fire and Rescue Authorities
    Delivery of Services    Governance
    Economic Development    Housing
    Education     Planning and Environment
    Elections    Regulatory Services
    Employment     Tortious Liability

Adult Social Services

DH: Adult personal social services – Specific revenue funding and grant allocations for 2017/18: this letter clarifies local authority specific revenue funding for the financial year 2017 to 2018, which was subject to the 2015 Spending Review. It provides information on funding for the third year of Care Act implementation, which comes from a range of sources, as well as details of parts of the Better Care Fund. (26 July 2017)

Ipsos Mori: Unmet need for care: this research report highlights the experiences of unmet need for care among older people living in their own homes. It finds that whichever measure of unmet need is used, over half of older people with care needs have unmet needs. The findings show that meeting needs and maintaining well-being among older people with care needs is about more than providing care services. Access to suitable transport, housing and adaptations, and social and community networks can assist people in meeting their care needs and in maintaining well-being. (20 July 2017)

DBEIS: Enforcement of the National Minimum Wage in the social care sector: clarifies the rules for when the National Minimum Wage should be paid to staff on overnight “sleep-in” shifts, and states that the Government will waive the financial penalties faced by employers who are found to have underpaid their workers for “sleep-in” shifts. (26 July 2017)

LGSCO: The right to decide – Towards a greater understanding of mental capacity and deprivation of liberty: this focus report highlights concerns about the way that some of the most vulnerable people in society are being treated when decisions are being made on behalf of people who lack mental capacity to choose how they are cared for. The report also includes problems the Ombudsman sees with the Deprivation of Liberty Safeguards system. It offers advice and guidance to social care professionals on how to get things right when working with people who may lack mental capacity. It also provides questions councillors can use for scrutinising their own authorities to ensure people in their area are treated properly. (19 July 2017)

Learning Disabilities (Review of Services) Bill: this Private Member's Bill has been introduced into the Lords by Baroness Hollins and received its 1st Reading. The Bill requires the Secretary of State to undertake a public consultation reviewing the provision of comprehensive and integrated services for adults with learning disabilities. (10 July 2017)

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

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Children's Services

DfE: Early education and childcare – Operational guidance: guidance for local authorities and early years settings on how they should provide the entitlement for 2-, 3- and 4-year olds. It sets out: what local authorities should do to fulfil their statutory responsibilities; what early years settings should do to fulfil their agreement with the local authority; and how local authorities and early years settings can support parents and children. (17 July 2017)

DfE: Analysing repeated referrals to children’s services in England: this research report looks at the services offered by local authorities and the reasons why some children are referred multiple times. (20 July 2017)

DfE: The fostering system in England: gives an overview of the fostering system in England and looks at what works and where improvements could be made to improve fostering outcomes for children. (18 July 2017)

R (AC & SH) v Lambeth LBC [2017] EWHC 1796 (Admin) (Admin Ct): two children, aged ten and four, applied for judicial review of the Council's Child in Need assessment under s.17 Children Act 1989 which determined that they were not 'in need'. The assessment concluded that the children were not destitute or at genuine risk of homelessness and required no services to be provided. It contained explicit adverse findings as to their mother's credibility, stating that she had deliberately misled the Council and attempted to manipulate the council into providing housing for the children, and thereby herself, while there were alternatives available to the family to avoid destitution. The children claimed that the procedure followed by the Council was unfair as their mother had not been given an opportunity to correct the adverse findings, and that it had failed to take into account AC's needs in light of a formal diagnosis of autism.
The court held, granting the application, that it was inconsistent with the aim of achieving a fair process for a public body to jump to an adverse conclusion which materially affected the decision if, on simple enquiry that conclusion might be shown to be false. However, here the assessment was reached after a fair process that was not tainted by public law error as the adverse credibility findings were only part of the picture. The assessment process was far from perfect, but as to the central unfairness challenge, neither the mother or grandmother were deprived of a reasonable opportunity to explain matters and the assessment procedure was not unfair to the children.
On the second ground, the Council had failed to carry out an assessment of AC as a child in need despite the indications from his mother than he had needed support and the confirmation of those difficulties in the autism assessment. There had been no actual assessment of AC's needs as such. The work carried out did not amount to a sufficiently wide, statutory guidance compliant, analysis of AC's needs as an autistic child and it was impossible to see how the formal diagnosis might impact on his accommodation needs. The decision not to treat AC as a child in need was quashed and a fresh assessment ordered. (14 July 2017)

KA v Croydon LBC [2017] EWHC 1723 (Admin) (Admin Ct): KA and NBV had claimed to be unaccompanied child asylum seekers. They sought judicial review of the council's decision to stop providing them with services at the same time as it provided them with summary reasons for its decision that they were not children, but before it had given them the full reasons for that decision. They argued that this denied them their constitutional right of access to justice and breached their rights under art.8 ECHER.
The court held, refusing the application, that the right of access to justice was a right to apply to the court for it to determine an application in accordance with the applicable substantive and procedural law. It was not a right to have special rules applied which did not apply to other applicants for the same, or for similar, relief. A decision of a local authority was not a judgment of any kind and it did not engage art.8. One of the consequences of an adverse decision was that, as a result of the Council's practice or policy, services were withdrawn. It was artificial and wrong to distinguish between the decision of the Council and its consequences - if the decision did not engage art.8, its consequences could not. Once the Council had decided that an applicant was not child, it was entitled to act on its assessment of the position, and to withdraw services. The right of access to justice did not require the Council to continue to provide those services for any period, short or long, in case its decision was wrong. The only route by which the Council could be required to continue to provide services was if it was ordered to do so by the court on an application for interim relief in an individual case. (7 July 2017)

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

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Commons Registration

R (St John's College, Cambridge) v Cambridgeshire CC [2017] EWHC 1753 (Admin) (Admin Ct): the College applied for judicial review of two of the Council's decisions regarding registration of land as a town or village green. The issue was whether the correction of defective applications to ensure that they were duly made under the Commons Act 2006 was limited to one occasion only.
The court held, refusing the application, that the Commons (Registration of Town or Village Greens) (Interim Arrangements) (England) Regulations 2007 (SI 2005/457) did not confer only a limited possibility of correction for defective applications under the 2006 Act. The College's interpretation of reg.5(4) did not accord with the underlying legal policy, was contrary to its language, and was unrealistic as a matter of practice. There was no objection to the Council offering an applicant the opportunity to correct his application for a second time. In fact the application as amended and resubmitted was duly made because there had never been any defect about the statement of locality. The guidance was in some respect misleading both for applicants and registration authorities, although the Council was correct in cautioning that any guidance of this nature could not purport to be definitive or to cover all eventualities. The parties had redrafted the guidance so that it more accurately represented the law and the redrafted guidance was annexed to the judgment. (12 July 2017)

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

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Delivery of Services

Social Market Foundation: Local public services 2040: this report, supported by Zurich Municipal, sets out to understand what factors could affect the future of local public services over the next two decades and what new roles for local government could exist by 2040. It explores six dimensions of change that are likely to dramatically impact the demand for, and supply of, local public services in 2040. The report notes that "It is easy to be gloomy about the future role of councils but this is to ignore some huge new opportunities, responsibilities and roles for local government over the coming years". It sketches out five possible future models: Industrial Councils; 'Ofcouncils'; Tech Opportunists; Community Councils; and the Commissioning Council Revisited. (12 July 2017)

PWC: Local State We're In 2017: the latest annual local government survey shows that councils have coped well in the face of uncertainty in the short term, but concerns about the longer term remain high and the scale of the challenge ahead is significant. Austerity continues to be the backdrop as councils grapple with digital disruption, embracing the potential of data and analytics and developing resilience. Beyond organisational priorities, there is a growing focus on partnership working in order to deliver place based growth and public service reform. (23 June 2017)

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

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Economic Development

Oxford Economics / County Councils Network: Understanding county economies – Analysis to inform the Industrial Strategy and the devolution debate: this report argues that devolving fiscal powers to England’s county authorities could re-balance the economy, make a success of the Industrial Strategy, and help England cope better with any Brexit aftershocks. The report explores the economies of the County Councils Network (CCN) to help understand the structure of the county economies, collectively and individually, and especially to inform the Government’s Industrial Strategy. It also provides unique analysis of the fiscal position of the CCN economy and of the contributions that CCN members make to the Exchequer. It offers evidence on how devolution might enable faster economic growth, through the effective investment of savings made as a result of greater devolution of public sector spending to the local level. (30 June 2017)

Welsh Government: Our valleys, our future: the Ministerial Taskforce for the South Wales Valleys has published a high-level plan which outlines its priorities for the future. The Plan sets out a range of aims and actions in each of the three priority areas: good quality jobs and the skills to do them; better public services; and local communities. (20 July 2017)

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

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Education

DfE: Exclusion from maintained schools, academies and pupil referral units in England – Statutory guidance for those with legal responsibilities in relation to exclusion: updated guide to the legislation that governs the exclusion of pupils from maintained schools, pupil referral units (PRUs), academy schools (including free schools, studio schools and university technology colleges) and alternative provision academies (including alternative provision free schools) in England. It applies from September 2017. (19 July 2017)

DfE: SEN support – A survey of schools and colleges: research on how mainstream schools and colleges provide special educational needs support. There is also a selection of case studies. (19 July 2017)

DfE: £1.3bn for core schools budget delivers rise in per pupil funding: announces an additional £1.3bn for schools funding over two years (2018/19 and 2019/20). The Education Secretary also confirmed that a new National Funding Formula will be introduced in 2018, ending the unfair postcode lottery on school funding that has resulted in similar children, attending similar schools, attracting very different levels of funding. (17 July 2017)

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

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Elections

Welsh Government: Electoral reform in local government in Wales: seeks views on a review of the framework of legislation applying to Welsh local elections. It focuses on the franchise for local elections, the registration of electors, voting procedures and systems, standing as a candidate and the returning officer function. The consultation closes on 10 October 2017. The Welsh Government intends to include the changes in forthcoming local government legislation when the opportunity arises. (18 July 2017)

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

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Employment

Vining v Wandsworth LBC [2017] EWCA Civ 1092 (CA): two Parks Constables employed in the Council's Leisure and Amenity Services Department appealed against the employment tribunal's decision that they were precluded from bringing a claim for unfair dismissal by s.200 of the Employment Rights Act 1996 as they were employed by a "police service". They argued that this breached their rights under art.8 ECHR. The union argued that the exclusion was a breach of art.14 read with art.11.
The court held, allowing the appeals in part, that art.8 ECHR was not engaged by the mere fact of dismissal from employment. Article 8 was not applicable because, having regard to the principles to be derived from the existing Strasbourg jurisprudence, the case had no special features capable of bringing the employees within the scope of art.8 consistently with those principles. Nor did art.14 apply when read in conjunction with art.8. However, the rights under ss.188-192 TULR(C)A 1992 fell within the scope of art.11 and the UK was under a positive obligation to secure the effective enjoyment of those rights. Where a legislative scheme was in place it had to strike a fair balance between the competing interests and any provision of that scheme which restricted its availability to particular classes of workers had to be justified, albeit that the state was recognised to have a wide margin of appreciation. Here, no justification was advanced for the exclusion of parks police officers, or trade unions representing them, from the rights accorded by ss.188-192, so the exclusion had to represent a breach of their, and their union's, art.11 rights. The union's appeal against that aspect of the order of the EAT would be allowed and the original decision of the ET restored so that the substance of that claim would have to be determined by the ET. (28 July 2017)

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

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European Union

European Union (Withdrawal) Bill: this "Great Repeal" Bill has been introduced into the Commons and received its 1st Reading. It repeals the European Communities Act 1972 on the day that the United Kingdom leaves the European Union. The Bill ends the supremacy of EU law in UK law and converts EU law as it stands at the moment of exit into domestic law. It also creates temporary powers to make secondary legislation to enable corrections to be made to the laws that would otherwise no longer operate appropriately once the UK has left, so that the domestic legal system continues to function correctly outside the EU. The Bill also enables domestic law to reflect the content of a withdrawal agreement under Art.50 TEU once the UK leaves the EU. (13 July 2017)

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

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Finance and Rates

LGA: A new Local Government Mutual: reports that the LGA is exploring options to develop a cost effective alternative to the conventional insurance market products and services available to local government, as well as improved ways of sharing best practice in risk management. The new mutual would aim to provide improved protection to LGA member authorities at a competitive rate and would be owned and controlled by its local authority members. The LGA is now inviting councils to join them in exploring becoming founding members of a mutual. The aim is for the mutual to be available as an alternative form of risk transfer for councils from April 1 2018, when the majority of current local authority insurance arrangements fall due for renewal. (18 July 2017)

DCLG: Local councils to receive £15 million in extra funding: announces grants totalling £15m from the Controlling Migration Fund to help ease the pressures on local services such as housing, schooling and health services resulting from recent migration. (19 July 2017)

Welsh Government: Delivering a tax cut for small businesses – A new small business rates relief scheme for Wales: seeks views on policy proposals for delivering a new permanent small business rates relief (SBRR) scheme for Wales from 1 April 2018 to assist eligible small businesses with their non-domestic rates (NDR) liability. The consultation closes on 13 October 2017. (21 July 2017)

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

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Fire and Rescue Authorities

Home Office: Major expansion of HMIC to take on inspection of fire and rescue in England: announces that Her Majesty’s Inspectorate of Constabulary (HMIC) is to take on the role of inspectorate of fire and rescue authorities in England. It will be renamed Her Majesty’s Inspectorate of Constabulary and Fire & Rescue Services (HMICFRS). The inspectorate will consider how efficient and effective fire and rescue authorities are, highlight good practice and identify areas where they need to improve, so that action can be taken to overcome them. The first inspection is expected to take place next spring with every authority in England inspected by the end of 2019. HMIC will shortly begin work developing an inspection framework and programme to be published for consultation in the autumn. (19 July 2017)

Home Office: Essex PCC to take on responsibility of local fire and rescue service: announces that the Home Secretary has approved the Essex PCC’s proposal to take on responsibility for Essex Fire and Rescue Service, under the collaboration measures introduced by the Policing and Crime Act 2017. Roger Hirst is now set to become the first Police, Fire and Crime Commissioner in October 2017.  (26 July 2017)

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

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Governance

Welsh Government: Local Government Secretary announces details of new Local Government Bill: announces a new Local Government Bill that would see mandatory regional working between Wales’ 22 councils on areas such as economic development, strategic land use planning and strategic transport. These services will all be undertaken in three large regions: North Wales, Central and South West Wales and South East Wales, with joint governance committees. Councils would also be required to work regionally on other services, e.g. education improvement and social services. The Bill will also make it mandatory for local authorities to broadcast their meetings. The Welsh Local Government Secretary also announced a root and branch review of town and community councils. (17 July 2017)

DCLG: New taskforce to support recovery from Grenfell fire disaster: the Communities Secretary Sajid Javid has announced details of the independent Grenfell Recovery Taskforce that will support Kensington and Chelsea RLBC to develop and implement a long term recovery plan following the Grenfell Tower fire. The Taskforce will provide assurance to the Secretary of State that RBKC has the capacity and capability to deliver an effective long term recovery plan for its residents taking into account their views. (26 July 2017)

DCLG: Rotherham intervention – Proposed return of 5 further functions: the Secretary of State has written to Rotherham MBC outlining a revised intervention package, in light of the Commissioners' 27 month progress report. He proposes the return of five functions (community safety; waste management; performance management; asset management; and HR) to the council. (18 July 2017)

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

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Housing

LGA: Housing Advisers Programme: the LGA has launched a new programme that is designed to support local authorities deliver a project that helps meet the housing need of their local area. It provides up to £14,000 to each council to fund the provision of an independent adviser to offer bespoke expert support to local authorities undertaking a specific project that works towards delivering homes, reducing homelessness, or generating savings or revenues. Local authorities are invited to submit an application to the programme for adviser support with projects that would help meeting a local housing need. The closing date for expressions of interest is 12 September 2017. (18 July 2017)

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

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Planning and Environment

R (Wet Finishing Works Ltd) v Taunton Deane BC [2017] EWHC 1837 (Admin) (Admin Ct): WFW applied for judicial review of the Council's decision to grant an application by the Interested Party, SH, to amend a previous planning permission, and creating a new s.106 agreement. WFW owned A mill, which was a derelict Grade II* listed building. The council granted planning permission for SH and WFW to build 84 homes on an adjacent site and the parties entered into a s.106 agreement that included provision for payment of a £780,000 Heritage Asset Contribution (HAC) to WFW for the restoration of the mill. SH later applied to vary the planning permission so as to increase the number of dwellings to 90, and the Council and SH entered into a new s.106 agreement that dispensed with the HAC and instead included provision for a Heritage Protection Contribution, which would be paid to the Council, for its own use in restoration of the mill. WFW submitted that the Council had a duty to consult it in relation to the proposed new agreement as a matter of procedural fairness.
The court held, granting the application, that the Council did have a duty to act fairly, and in particular to give notice to WFW of the proposed s.106 agreement and to give it an opportunity to comment upon that before it was concluded. It would be an abuse of power for the Council not to afford procedural fairness. The court quashed the grant of planning permission. (20 July 2017)

Powys CC v Price [2017] EWCA Civ 1133 (CA): the Council appealed against a declaration that it was liable as an "appropriate person" under Part IIA of the Environmental Protection Act 1990 in respect of the actions of its predecessor, Brecknock BC, in relation to a landfill site at P's farm. On local government reorganisation in 1974, Brecknock became responsible for waste disposal in the area and entered into a series of licences with P to tip "refuse" on the site. Brecknock was abolished on 31 March 1996 and Powys CC came into existence on 1 April 1996 by merger of three districts. Article 4 of the Local Government Reorganisation (Wales) (Property, etc) Order 1996 (SI 1996/532) provided that where there was only one successor authority, all the property, rights and liabilities of the old authority vested in that successor authority. The judge held that Powys was an "appropriate person" under s.78F(2) EPA 1990 bearing responsibility for carrying out remediation works in respect of contaminated land, on the basis that it had taken over the liabilities of Brecknock by virtue of the legislation providing for local government reorganisation in Wales including the 1996 Order.
The court held, allowing the appeal, that at the date of succession Brecknock was not under any liability, whether accrued, contingent or potential in respect of Part IIA EPA 1990, which was capable of passing to Powys by virtue of Art.4 of the 1996 Order. The definition of "appropriate person" in s.78(2) could not be construed so as to include Powys as successor of Brecknock. The emphasis in s.78F(2) and (3) was on the actual polluter, the person who caused or knowingly permitted the pollution. Brecknock would have been an appropriate person, if it had still been in existence at the date when Part IIA came into force in Wales. However, while Part IIA created liability now in respect of past conduct, it did not establish that such liability existed before Part IIA came into force. Part IIA did not operate retroactively so as to deem a predecessor body to have been under a liability which only arose under legislation which came into force after the predecessor body ceased to exist. Very clear words would be needed if it were intended to impose on a successor body liabilities which were non-existent at the date of succession and only created later. The succession provision in Art.4 of the Order was nowhere near as extensive in its effect and was not effective to impose such a liability on the successor body. (27 July 2017)

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

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Regulatory Services

DCLG: Independent review of building regulations and fire safety: announces a forward-looking independent review of current building regulations and fire safety with a particular focus on high rise residential buildings. The review will be led by Dame Judith Hackitt, Chair of EEF, the Manufacturers’ Organisation. It is expected that the review will present an interim report before the end of the year, and a final report no later than spring 2018. (28 July 2017)

R (Hemming (t/a Simply Pleasure Ltd)) v Westminster City Council [2017] UKSC 50 (Sup Ct): the Supreme Court has given a further judgment on the lawfulness of fees charged to applicants for sex shop licences, which included the council’s costs of enforcing the licensing scheme against unlicensed third parties. This follows on from the CJEU ruling that the Services Directive 2006/123 should be interpreted as precluding charging in advance for costs other than those directly related to the authorisation process, even if the payment is refundable (see Hemming v Westminster City Council (Case 316/15) [2016] EUECJ C-316/15). The Council submitted that it was entitled to be paid or repaid the sums which it had repaid to sex shop licence holders, following the Court of Appeal’s order; the licence holders, on the other hand, submitted that they were entitled to retain the repayment made to them in full, because it was charged in a way for which there was no warrant.
The court held that the Council's scheme was only defective in so far as it required payment up front at the time of the application. Its invalidity was limited. European law permitted a fee to cover the costs of running and enforcing the licensing scheme becoming due upon the grant of a licence. There was no imperative under European law, as incorporated domestically by the Provision of Services Regulations 2009 (SI 2009/2999), to treat the whole scheme as invalid, rather than to invalidate it to the extent of the inconsistency. The Council was entitled to set and to require payment of a fee including enforcement costs as well as processing costs applicable to all those who, like the licence holders, actually received licences and benefitted by the council’s enforcement action. Although it was wrong to charge the element of this fee relating to enforcement costs conditionally at the time of any licence application, the payment made became due unconditionally when the application was successful. It followed that, in so far as the Council had determined a reasonable fee, including enforcement costs, there was no answer to the Council’s claim to be paid or repaid it now. The parties agreed that any re-determination of the fees should be undertaken by a judge of the Administrative Court. The Supreme Court had to be able to restore the parties to the position they should have been in, by now ordering repayment by the licence holders of the enforcement costs, to the extent that they met the criterion of reasonableness. The issue potentially remaining on this basis was the reasonableness of the sum identified as enforcement costs, and now to be repaid to the council. This issue should be remitted, as agreed, to the Administrative Court. (19 July 2017)

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

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Tortious Liability

Lugay v Hammersmith and Fulham LBC [2017] EWHC 1823 (QB): L sought damages under the Law Reform (Miscellaneous Provisions) Act 1934 and the Fatal Accidents Act 1976 in respect of the death of her husband. It was accepted that that his death was accelerated by four years by reason of malignant mesothelioma. L contended that this was caused by her husband's exposure to asbestos during the course of his tenancy of a council flat. A claim based on any defect in the property was excluded as the experts agreed that the presence of asbestos-containing materials did not of itself give rise to any risk of exposure above background levels, even where dilapidated, so the issue was whether L could establish her claim based on a breach of common law duty of care.
The court held that, in determining whether the Council was in breach of its duty of care, the court had to compare the steps taken by the Council to prevent the victim from being exposed to asbestos fibres with an objective standard of what reasonable steps should have been taken to avoid reasonably foreseeable injury in the factual circumstances prevailing at the time. Applying the factors for the court to take into account in determining the issue of foreseeability as set out in Williams v University of Birmingham [2011] EWCA Civ 1242, the Council was not in breach of its duty of care. The claimant had failed to prove, on the balance of probabilities, that the acts or omissions on the part of the Council materially increased the risk of Mr L contracting mesothelioma. (19 July 2017)

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

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