February 2015
A very belated happy new year and welcome to our first Local Government newsletter for 2015. The weather outside may
still be frightful and spring still looks a long way off. However, developments in the local government arena have
continued apace through the winter, so we’re bringing you, as ever, the latest cases and legislative changes plus our
collection of featured articles that we think you’ll find to be essential reading. In this edition, we begin with a round-up of
some important employment law issues which landed on us at the end of last year. Then, in a sign of the times in which
we’re living, we look at a very significant EAT decision – its first arising from a Twitter-related dismissal. To round off the
employment matters, we consider a recent tribunal decision on the implications of an internal appeal against dismissal
being upheld. Moving next to housing, we report on a decision from the end of last year which offers useful guidance
about seeking an order for possession of a property due to the anti-social behaviour not of the tenant, but of someone
else in their household. We conclude – as the general election begins to loom large – with a detailed and in-depth analysis
of devolution and the key issues relating to it: an issue, in this election as perhaps never before in view of last year’s
Scottish referendum, on which all the parties will be striving to gain favour and set themselves apart. Let battle
commence…
Employment law roundround-up
Claims based upon obesity
The European Court has handed down the full Court’s Judgment on a Danish claim brought by a child-minder who said he
was dismissed due to his obesity (Fag
Fag og Arbejde v Kommunernes Landsforening).
Landsforening It holds that there is no free-standing
principle of non-discrimination on grounds of obesity in employment under EU law. However the obligation not to
discriminate against an employee because of their disability (and importantly the duty to make reasonable adjustments)
can apply to someone who is unable to undertake activities as a result of their obesity. This fits with the UK test for
defining a disability, which focuses upon whether the individual’s ability to carry out normal day to day activities is
adversely effected, not what the cause of that limitation is.
So an employee who is obese may have the protected characteristic of disability. If you are considering a situation where
obesity or body-size is relevant, tread with care, consider reasonable adjustments and take advice. However this is not
because obesity is itself a protected characteristic, it is because the individual’s condition may fit within the relatively
broad definition of disability (which is a protected characteristic).
The full Court has not followed the Advocate-General’s suggestion that protection might be limited to a body mass index
of 40 or greater. It is also very clear from this Judgment that whether or not an employee may or may not have contributed
to the onset of their disability is irrelevant to the legal protection given after the onset of the disability. So concepts of
“blame”, which some managers may take into account with disabled employees (such as those who are obese or who have
illnesses/injuries caused by abuse of alcohol or extreme sports), have no relevance to the employment decisions you make
or whether adjustments to working arrangements are reasonable.
UNISON’s judicial review of Tribunal fees
This has failed in the High Court for the second time. Unison argued that the introduction of Tribunal fees: has meant that
European law rights cannot be effectively enforced; and amounts to indirect discrimination against women (which the
Government could not justify). This challenge focussed on the statistics which show a significant drop in claims. It has
been rejected on both counts, so Tribunal fees remain unaltered. This is unlikely to be the end of the story as Unison are
likely to appeal and the Judgment leaves open the possibility of a future judicial review application based upon an actual
individual who has found it excessively difficult or impossible to claim, rather than statistics.
New Regulations about holiday pay claims
New Regulations have been laid before Parliament which are intended to limit how far back in time workers can go when
bringing holiday pay claims, but only from the 1 July next year. The Deduction from Wages (Limitation) Regulations 2014
emanate from the taskforce set up by the government following the widely publicised Bear Scotland EAT Judgment. A new
provision will be added to the rules governing deduction from wages claims, so that certain claims can only go back a
maximum of two years and no longer. An additional amendment will also expressly prohibit breach of contract claims
based upon Working Time Regulations’ holiday.
There is an obvious question as to whether these Regulations are needed at all. Whilst good for businesses in providing
added certainty (in the future) about historic holiday pay liabilities, the two year limit will only be relevant if either: a
worker has not had more than a three month break between their European-based (Regulation 13) holiday, which will be
unusual; or if the Bear Scotland Judgment’s ruling on time-limits is overturned by the Court of Appeal. What the
Regulations are likely to do, is lead to more grievances and claims in the period between now and the end of June, as if a
worker wishes to have any argument that they can recover a longer period of holiday pay they will have to enter a claim
before July.
This amendment on time-limits is aimed at holiday pay claims and does not extend to all unlawful deduction from wages
claims, which will continue to have no limit on how far back claims can go as long as they are brought (or ACAS contacted)
within three months of the last of the series of deductions. Assuming the Regulations come into force as intended,
unlawful deduction from wages claims for back-pay for fees, bonuses or holiday pay will only be able to recover two years
lost pay. However in our view the Regulations are not well drafted, meaning there may be a far broader category of
deductions claims caught by the two year limit.
First Twitter dismissal appeal holds warning for employers
The facts
Mr Laws was a risk & prevention officer for Game responsible for 100 of their stores. He was a Twitter user who followed
all of those stores own Twitter-feeds, and 65 followed him in return (in most cases after one store manager recommended
they should do so). He was dismissed for posting 28 abusive tweets which were found to be offensive including to
"dentists, caravan drivers, golfers, the A&E department, Newcastle supporters, the Police and disabled people", including
some which used foul and abusive language. The tweets had nothing to do with his job, so was the dismissal unfair?
The EAT has overturned the Tribunal’s decision that it was. This Tribunal's conclusions were held to be unsafe, based as
they were on a mistaken finding about the posts as private. The EAT emphasised the public visibility of the tweets and the
context of Mr Laws being followed by the stores, with at least one member of staff having raised concerns about them.
The EAT declined to provide general guidance, but the judgment confirms that some relevant factors will be: whether the
employer has a social media or relevant IT policy; the nature and seriousness of the alleged misconduct; the existence of
previous warnings; and the potential damage done to customer/client relationships. However each case will always be
fact-sensitive - is this employer's decision to dismiss one which falls within the range of reasonable responses of a
reasonable employer?
The key warning comes with the importance placed by the EAT on the tweets needing to have a work-related context. It
said, "Generally speaking, employees must have the right to express themselves, providing it does not infringe on the
employment and/or is outside the work context".
What does this mean for
for me?
Abusive tweets by your employees might be grounds for a fair dismissal, but don't assume they always will be. When
investigating such issues or reaching a disciplinary decision you must consider carefully why dismissal is an appropriate
sanction? Why does the tweet have a work-related context? Some relevant questions will be: does the post or twitter feed
refer to your organisation; is the user following or followed by your organisation, clients, customers, or colleagues; what
does your policy say; and what is their role? You need to balance the employee's right to freedom of expression, by
deciding if the posting is work-connected.
Comment
We know that employee social media use is a challenge with which many of you are grappling. Twitter use presents its own
challenges with postings usually being publically available and retweeting, meaning that they can be widely viewed. What
this judgment really emphasises is that the keys to a fair dismissal remain unaltered by this modern context.
What does a successful
successful appeal against dismissal mean (and does the employee have to know)?
know)?
Facts
Mrs Salmon was dismissed. She appealed. Her appeal was heard after the business in which she had worked had
transferred to a new employer. The HR Director (who had transferred as well) upheld the appeal. The new employer clearly
did not like this outcome and did not tell Mrs Salmon. Instead it instructed advisors to try to settle any potential claims.
When settlement did not occur, Mrs Salmon brought a claim.
Mrs Salmon’s pre-transfer employer had gone into administration, so her claim could only progress if she could establish
that she was employed at the time of the transfer and had transferred to the new employer. However, in reality, before the
transfer occurred, she had been dismissed. She could only have transferred if she had been reinstated on appeal, as this
would have the effect that she would then be considered to have transferred (because the successful appeal would create
the slightly bizarre legal outcome that she was retrospectively employed at the time of the transfer).
The EAT has held that Mrs Salmon was employed at the time of the transfer due to the appeal decision. In very clear terms
the EAT determined that, once an appeal succeeds, it is effective and the employee is retrospectively reinstated irrespective of whether or not that employee is told the outcome.
What does this mean for me?
Whilst employees will usually be told the outcome of appeals, we do sometimes see disputes within an organisation when
a manager responsible for an appeal says it should be upheld and other senior managers argue that they cannot have the
person back. This judgment makes clear that once the decision-maker has determined the appeal, the individual is
retrospectively reinstated (remember potentially based upon the decision-maker’s evidence under oath in a Tribunal). If as
an organisation you don’t want the appealing employee back, the timing of without prejudice discussions will be critical,
both to the legal position and the strength of your bargaining power. Practically it is better to have without prejudice
discussions before the appeal is decided, if it looks like the individual will succeed.
TUPE
The other practical problem explored in this case is that of outstanding appeals at the time of a TUPE transfer. Who hears
them and what impact do they have? The EAT’s view is that the starting point should be that the pre-transfer employer
hears the appeal, which might in practice be a bit odd because if it upholds the appeal the result is that the post-transfer
employer gains the previously-dismissed employee. In transfers involving rival organisations (such as competing
contractors), this creates the opportunity for mischief. As is so often the case with TUPE, the best protection you can have
as a post-transfer employer is to ensure that your contracts, and the warranties and indemnities in them, protect you
against the costs and risks of gaining additional unexpected employees.
Another person’s action can
can lead to a tenant losing his home
home
The recent case of Greenwich RBC v Tuitt (27 November 2014) acts as useful guidance on the issue of when it might be
appropriate to seek an order for possession against a tenant based on acts of anti-social behaviour committed not by the
tenant, but by someone else in his household.
In this case, the tenant’s 14 year old son was part of a gang of youths causing anti-social behaviour on the estate,
including an incident where planks of wood were dropped from the fourth floor of a block of flats, onto the head of the
caretaker of that building. The tenant’s son was convinced of assault occasioning actual bodily harm, but not before
committing four breaches of his bail conditions and being convicted of a further offence of criminal damage.
The local authority issued possession proceedings based on the tenant’s son’s actions and the judge ordered outright
possession. The tenant appealed on a number of grounds including, amongst other things, the case of Portsmouth CC v
Bryant
Bryant (2000) 32 HLR 906 in which the court had said that it may well be unreasonable to make any type of possession
order against a tenant based on the anti-social behaviour of another person, against whom the tenant is powerless to
control.
The Court of Appeal dismissed the tenant’s appeal and reaffirmed the decision in Knowsley Housing Trust v McMullen
(2006) EWCA Civ 359 which says that the court is not prevented from ordering possession against a tenant who is unable
to control a person in his household who is committing acts of anti-social behaviour.
When considering whether to make an order for possession which is applied for relying on grounds 1 and 2 in Schedule 2
to the Housing Act 1985, section 85a of that Act requires the court to consider:
The effect the behaviour has on persons (other than the tenant)
Any continuing effect the nuisance or annoyance is likely to cause to those persons
The effect the nuisance or annoyance is likely to have on those persons if the behaviour is repeated
The Court of Appeal ruled that the judge hearing the case had undertaken a fair and complete review of the facts,
including proper consideration of the fact that the tenant was not personally responsible for the anti-social behaviour. The
judge had taken account of the tenant’s son’s apparent inability to control his temper, the tenant’s failed attempts to
control her son, the tenant’s suggestion that her son was not at fault and the tenant’s failure to consider asking her son to
leave the property.
Whilst the law in relation to possession claims based anti-social behaviour is due to change shortly, this case is a useful
guide for both Local authorities and registered providers of social housing when faced with complaints of anti-social
behaviour caused by someone other than the tenant of the property.
Devolution: the definitive guide and where are we now?
Why devolve?
Devolution is an idea whose time has come. A mix of unconnected factors - the aftermath of the Scottish independence
referendum, the disparity between the confident affluence of London and the South East and never ending make-do-andmend austerity in the rest of the country, European-wide disenchantment with traditional politics, the notion of a Northern
“super city”, and a boyish enthusiasm for building new train lines – will make something happen. But no one is quite sure
what the idea is. Stopping Scottish MPs voting on English issues? Reviving the pre-1972 counties, or even the Anglo Saxon
“Game of Thrones” kingdoms? Promoting economic development in regional cities? There must be something in this for
local government, especially in the promise-fest in the run up to the election, but what is on offer, and what will it mean?
What is devolution?
Devolution is about three things: identity, money and power.
A sense of location cannot be imposed. It is a cliché, but where do you say you live if you are asked when on holiday
abroad? Most people in England will answer in terms of compass points, traditional counties or the nearest big city.
Staunch localists will give a different answer, but in principle we are looking at compass-point regions which currently
have no legal or administrative significance, big multi-authority cities, and shire counties old and new.
Council tax accounts for less than 17% of local authority income. Business rates (NNDR) are collected locally but set
nationally, and about half the income is returned to central government and redistributed. Some funding, particularly
school spending, is ring-fenced and just passes through the books. Annual local authority capital spending is about
£20bn, of which about £10bn is funded by central government or from capital receipts. Local authorities are frantically
seeking new sources of income, and new ways to borrow, but so far the impact is marginal. Central government will need
to control overall council spending and will want to claim credit for infrastructure improvements (usually several times).
The focus is on existing administrative areas.
Local authorities can now do anything that a private individual can do, unless the government intervenes. They were even
promised the power to make their own byelaws, without government approval, although this has never quite come about
and no-one is holding their breath.
At that level, there is very little scope for manoeuvre. So let us look in more detail, first at devolution to the compass-point
regions, then at the big cities and finally the counties. Over the years, this has been a serious political football.
Regional government
The 1997 Labour government had a bash at devolution. In 1998 and 1999 it created the Scottish and Welsh Assemblies
and nine Regional Development Agencies in England, charged with developing regional economic development strategies
and distributing government and European funding. The RDAs were quangos, made up of representatives of business,
local government, trade unions and voluntary organisations, appointed by central government. Each RDA was supported
by a Regional Chamber, later styled a Regional Assembly, a wholly non-statutory body focussing on the strategy, and a
regional Government Office. Two thirds of the Assembly members were nominated by the local authorities in the region,
one third by regional organisations. An attempt to place these on a statutory basis, creating a directly elected intermediate
tier of government responsible for the RDAs, training and skills, housing, planning and transport, fire and rescue, culture,
the environment and sustainability, collapsed in ruins. It was opposed as a waste of money, two of the three referendums
planned to bring the new bodies into existence were dropped, and the third, in the North East in 2004, overwhelmingly
rejected the proposal.
The Local Democracy, Economic Development and Construction Act 2009 contained a new system. The Regional
Assemblies were abolished and their functions fell back to the RDAs, whose remit was widened to include town and
country spatial planning. The RDAs were replaced by Leaders Boards, whose composition was as the title suggests. There
was scrutiny by Regional Parliamentary Committees. This did not last very long. The Coalition Government abolished the
whole thing: RDAs, regional Government Offices, regional strategies, Leaders Boards, Parliamentary Committees and all
the associated funding streams. Ghost Leaders Boards remain, as informal Local Government Association sounding boards
with a variety of titles.
Cities and city regions
regions
The seminal 1972 local government reforms produced the two-tier system of counties and districts, but also created
metropolitan county councils in Greater Manchester, Merseyside, Tyne & Wear, West Yorkshire, South Yorkshire and West
Midlands, based on the London County Council, which had been around since 1889 and became the Greater London
Council in 1963. These county councils were abolished in 1985, on the grounds of efficiency, although many saw this as a
purely political move, and the metropolitan districts, including the central “City Council” in each area, became unitaries.
They have muddled through on this basis ever since, with varying degrees of formal and informal cooperation between the
districts (the GLC and the Greater Manchester Authority, in particular, never really went away). Newly created Urban
Development Corporations – quangos with planning and land development powers – stepped out of their shadows and
promoted huge regeneration schemes. They were criticised as out of touch with local people, and the perceived need to
bear down on public sector capital spending meant that they withered on the vine in favour of market-led regeneration.
That left a gap at the “city region” level, although city challenge policies in the 1990s encouraged partnership working to
tap into government funding for regeneration projects.
The 1985 changes also spawned joint authorities in the old metropolitan county council areas, responsible for the police,
fire and rescue, civil defence and transport, and similar authorities in some areas covering waste disposal and a few other
functions. Most of these have wandered off down new legislative trails: police and crime commissioners (PCCs) and fire
and rescue authorities, for example. In Manchester, Merseyside, the West Midlands, South Yorkshire, West Yorkshire and
Tyne and Wear transport – trains, buses, trams and so on – is organised and run (in so far as it has not been privatised) by
Passenger Transport Executives and Integrated Transport Authorities (ITAs), some of which have now become Combined
Authorities, as we will see.
The 2009 Act gave top and single tier local authorities a new duty to prepare an assessment of economic conditions in the
area. It made it possible for the Secretary of State to create new bodies involving two or more adjacent authorities:
Economic Prosperity Boards (EPBs) to promote economic development and regeneration, and Combined Authorities (CAs)
to do what EPBs do, plus the transport functions of the Integrated Transport Authorities. EPBs and CAs survived the
Coalition Government cull of regional government. EPBs have not yet found favour locally, but there are new CAs in
Greater Manchester, Merseyside, Leeds and Sheffield. Their remit is limited, but important, and they are usually perceived
locally as true city-region authorities.
Also under the 2009 Act, the Local Area Agreement “cash and powers for meeting targets” deals were broadened to
provide a statutory basis for multi-authority “Multi-Area Agreements” or MAAs. MAAs were abolished by the Coalition
Government, but “City Deals” emerged in their place. The first wave covered the eight largest “core” cities, centred on
Birmingham, Bristol, Manchester, Leeds, Liverpool, Nottingham, Newcastle and Sheffield. Each deal is different, but key
features include “earn back” (new funding based on actual growth) and tax increment financing (borrowing against
anticipated increases in business rate income), pooled “economic investment funds” and a “local venture capital fund”,
business growth hubs, new funding models for training and skills, devolved responsibility for rail franchising, devolved
transport funding, local asset management and investment programmes, broadband development projects and low carbon
programmes. Bristol and Liverpool acquired elected mayors, although their writ only runs in the City Councils, not across
the city region. The second wave involved 20 more cities, and individual deals have agreed with 15 of them, giving some
kind of official recognition to areas like “Greater Brighton” and “the Black Country”.
Cities and counties
So regional government has, in effect, been sliced up into a messy, city-based sub-regional mix of partnership working,
CAs and City Deals. Likewise, the public/private relationship inherent within RDAs and Regional Assemblies has
reappeared at the sub-regional level, with the creation of Local Economic Partnerships (LEPs). These are non-statutory
bodies charged with economic development planning, working in practice through the local authorities and CAs in their
areas. Their members and board members are self-selected, subject to Government approval, with a majority representing
local businesses. There are 39 LEPs, some of which overlap, covering the whole of the country – and therefore operating in
the shire counties as well as the cities. Initially their purpose was unclear, and their resources limited, and they felt like
talking-shops. However, boosted by a hard-hitting 2012 report called “No Stone Unturned” by Conservative grandee
Michael Heseltine, a long standing proponent of regional development, LEPs now control substantial funds, including EU
funding and a slice of the Local Growth Fund, doled out to LEPs through a competitive bidding process through “Growth
Deals” for individual projects and initiatives similar in flavour to the “City Deal” packages. The second wave has just been
announced.
One of the Heseltine recommendations was to amend the 2009 Act to free up the criteria for EPBs and CAs. In April 2014
the Government published a consultation paper inviting views on four proposals: to allow non-contiguous authorities to
form EPBs and CAs, to enable county councils to become members with respect to only part of the county, to enable them
to do different things in different parts of their areas, to simplify the process for making governance changes, and to
ensure that they all have an overview and scrutiny committee.
This is linked with a steady upsurge of self-assertiveness by County Councils. Those that are not unitaries are
collaborating ferociously with districts, and a few are sniffing around the idea of more restructuring. All see economic
development, growth and inward investment as a major priority. Derbyshire has just won approval for the first nonmetropolitan CA. The counties envy the City Deals. The County Councils Network “Plan for Government 2015 – 2020”
proposes “a radical English Devolution settlement for the County and City Regions of England.”
The Northern Powerhouse and the Iron Man
By the end of the 1990s a new idea was gaining currency – the elected mayor. London went first, with the creation of the
Mayor for London, the Greater London Assembly and the family of related London-wide bodies in 1999. The Local
Government Act 2000 provided the elected mayor and cabinet form of governance, and, with the application of a series of
financial carrots and legislative sticks, there are now 14 elected mayors, including those in Bristol, Salford and Liverpool.
This is only 4% of the local authorities in England, but the principle still fascinates national politicians and will not go away.
In June, George Osborne made a speech in Manchester about his vision of a “Northern Powerhouse”, a collection of cities
with radically improved transport links, and a “serious devolution of powers and budgets” but only to “any city that wants
to move to a new model of city government - and have an elected Mayor”. The Greater Manchester CA has signed up to
the concept. The directly elected Mayor of Greater Manchester will have a devolved transport budget, responsibility for
franchised bus services, powers over strategic spatial planning, a new housing investment fund, a new earn back deal, and
the role of the PCC. The Greater Manchester CA will have devolved business support budgets, further education and
training powers, funding for the “Working Well” project and a joint commissioning role for the Work Programme (both aim
to get people off benefits and into work) and a role in health and social care integration. Like the Iron Man, and like
London 15 years ago, the Manchester County Council is gradually reassembling itself. But it is by no means clear that
unitary authorities in the other City Regions with less inclusive traditions have an appetite for ceding sovereignty to a new
authority or a new elected mayor.
Where next?
Scotland, Wales and Northern Ireland have their own assemblies and governments, with law-making powers, sole
responsibility for a wide range of governmental functions and clear promises of more fiscal independence. In England we
have a failed attempt at regional government, a persistent focus on city regions, increasingly strident county councils, a
confusing alphabet soup of sub-regional economic development bodies, and intricate horse-trading with cities over
funding, spending powers and bits and pieces of devolved authority. What will happen next?
Some things are highly unlikely. There will not be an English Assembly. Wessex, Mercia, Northumbria and the seven
kingdoms of Westeros will not reappear. It is fanciful to suggest that the English regions will be given the same freedom as
Scotland, Wales and Northern Ireland to make their own laws, or allowed to raise new taxes. The counties may have a
louder voice outside the metropolitan areas, but Lancashire will not run Manchester and Liverpool. There will be no SuperCity Council or Northern Powerhouse Mayor to rival the GLA and Boris Johnson. And there will be no new money.
Some things are just possible. Nothing is certain in politics, but the chances are that the next government will be
Conservative-led or Labour-led. Whether a single party will have a majority, or which parties will coalesce, is anyone’s
guess. We have not seen the manifestos, but there is no clear indication that any of the smaller parties, apart possibly
from the Green Party, will make devolution to new tiers of government in England a condition of participation in a
coalition. A Conservative-led government would probably mean more of the same. There is a chance, though, that a
Labour-led government would grasp the nettle of regional government again, especially if it has a majority in the UK but
not in “England only” Parliamentary votes.
And some things could happen. Perhaps we will see combined authorities and city region elected mayors in all 28 of the
City Deal areas, with a broadly similar set of functions instead of grace-and-favour, city-by-city patronage. Perhaps the
shire counties will be offered a watered down version of the same thing. And perhaps there will be a genuine attempt to
redefine the relationship between central and local government. A 2007 Concordat committed the Labour Government to
reducing unnecessary intervention in local government. In 2009 the Communities and Local Government Select Committee
noted that “nothing much appears to have changed as a result”. The Political and Constitutional Reform Committee felt
that the answer was to seek views on a draft code on relations between central and local government. The Government’s
response at the time was unenthusiastic. The Coalition Government said wonderful things about localism, but has reverted
to by directing how often the bins will be collected and the municipal newspaper published, challenge funding for
economic development projects and whatever may come next. The Committee is now working on “the future of devolution
after the referendum”. Perhaps the two streams can be brought together in a real settlement – in place of mock-localism to enable the cities and the shires to assert their authority, instead of begging for scraps.
Cases and legislation
We highlight new cases and legislation of interest to local authorities from November and December 2014.
Cases
Childcare
RE Y (CHILDREN) (2014) CA (Civ Div) 20/11/2014
A district judge had erred in making a care order in respect of two children, because she had ruled out the possibility of
them staying with their mother based on the negative aspects of that arrangement, instead of conducting a full evaluation
and then comparing the different options, as she was required to do by the decision in B-S (Children) (Adoption: Leave to
Oppose), Re [2013] EWCA Civ 1146, [2014] 1 W.L.R. 563.
CM v (1) BLACKBURN WITH DARWEN BOROUGH COUNCIL (2) M (A CHILD) & ORS (2014) EWCA Civ 1479
1479
The decision in B-S (Children) (Adoption: Leave to Oppose), Re [2013] EWCA Civ 1146, [2014] 1 W.L.R. 563 had not
changed the statutory test for dispensing with parental consent to a child being placed for adoption. The statement that
non-consensual adoption should only take place where nothing else would do did not introduce a new standard of proof.
If appropriate, a court could make a placement order, whilst including a contingency plan for a long-term foster
placement if an adoptive placement could not be found within a specified time limit.
RE R (A Child) (2014) EWCA Civ 1625
The President of the Family Division stated that the guidance given in B-S (Children) (Adoption: Leave to Oppose), Re
[2013] EWCA Civ 1146, [2014] 1 W.L.R. 563 had not changed the law or undermined the balancing exercise which the
court was required to perform when considering placement for adoption. Where adoption was in a child's best interests,
neither the courts nor the relevant authorities should shy away from seeking it.
R (on the application of C (A CHILD) BY HIS GRANDFATHER & LITIGATION FRIEND L) v BUCKINGHAMSHIRE COUNTY
COUNCIL (2014) EWHC 4072
The bare fact that a parent or carer had departed from a household in which they had cared for a child did not necessarily
mean that the child was "abandoned" for the purposes of the Children Act 1989 s.20(1)(b). Parliament had plainly intended
that term to signify a child who had been placed in circumstances giving rise to a need for public assistance.
Civil Procedure
MICHELLE
MICHELLE ROBINSON v KENSINGTON & CHELSEA ROYAL LONDON BOROUGH COUNCIL & ANOR (2014) QBD 03/11/2014
A local authority's failure to serve an acknowledgement of service in time was not serious and significant as it amounted
only to a five calendar day delay and the process had already been delayed as the claimant had had difficulty in issuing the
proceedings.
CUTLER v BARNET LONDON BOROUGH COUNCIL (2014) QBD 31/10/2014
A judge had erred in not considering a defendant's oral application for relief from sanctions and thus debarring her from
defending a possession claim. The court had a discretion to consider such an application even where a formal
application under CPR Pt 23 had not been made.
Criminal Procedure
R v HUSSAN HUSSAIN sub nom R (on the application of BRENT LONDON BOROUGH COUNCIL) v HUSSAN HUSSAIN (2014)
EWCA Crim 2344
A confiscation order against a landlord who let his property to numerous tenants in breach of a planning enforcement
notice had properly been made for the full amount of rents received. Although a company had collected the rents, the
landlord had obtained the benefit and, in the absence of his criminal conduct in ignoring the notice, the rents would not
have come within his control. The fact that the leases were lawful had been properly considered.
Council Tax
SOUTH TYNESIDE COUNCIL v AITKEN (2014) EWHC 4163
The fact that an individual was in receipt of employment and support allowance with the support component meant that
he was treated as having a limited capability for work for the purposes of the scheme for reduction in council tax liabilities
contained in the Council Tax Reduction Schemes (Default Scheme) (England) Regulations 2012. He therefore received an
enhanced disability premium for the purposes of Sch.3 Pt.3 para.12 and the standard percentage council tax reduction
had to apply to him.
WILTSHIRE COUNCIL v PIGGIN (2014) QBD (Admin) 02/12/2014
A magistrates' court had erred in allowing a property owner to raise the issue of liability in a local authority's application
for an enforcement order in respect of unpaid council tax. The owner should have disputed his liability by way of an
appeal to a valuation tribunal.
Discrimination
R (on the application of SUSAN TURLEY) (Claimant)
(Claimant) v WANDSWORTH LONDON BOROUGH COUNCIL (Defendant) &
SECRETARY OF STATE FOR COMMUNITIES & LOCAL GOVERNMENT (Interested Party) (2014) EWHC 4040
A condition in the Housing Act 1985 s.87 that the long-term partner of a secure tenant should have resided with him
throughout the 12-month period preceding his death in order to succeed him as a tenant was objectively and reasonably
justified and proportionate. The condition was directed at achieving a reliable conclusion as to whether the couple were
living together.
Education
MOSEKARI v LEWISHAM BOROUGH COUNCIL (2014) EWHC 3617
A local authority did not have power to grant a newly qualified teacher exemption from the requirement to complete the
mandatory statutory induction period as set out in the Education (Induction Arrangements for School Teachers) (England)
Regulations 2012. Although he was given an "induction mentor" by his school and received training and assessment, he
had failed to complete the induction period in the manner prescribed by the Regulations.
R (on the application of CERI MCCANN) v BRIDGEND COUNTY BOROUGH COUNCIL (2014) EWHC 4335
The defendant local authority had failed in a number of material respects to comply with the requirements of the School
Standards and Organisation (Wales) Act 2013 and the School Organisation Code when implementing its proposal to close a
primary school and merge it with another primary school in a village nearby.
R (on the application of LARA SMIEJA (BY HER FATHER & LITIGATION FRIEND FRANK SMIEJA)) v BEXLEY LONDON BOROUGH
COUNCIL (2014) EWHC 4113
A local authority was not under an obligation to arrange the training and education provision specified in a learning
difficulties assessment.
Elections
VERNON WILLIAMS v (1) SHARON PATRICK (2) TOM RAHILLY (3) REBECCA RENNISON (4) TIM SHIELDS (2014) EWHC 4120
Returning officers in local government elections were not required to apply the Parliamentary Rules r.45(3A) and start
counting ballots within four hours of the close of the poll. If Parliament had intended r.45(3A) to apply to local elections, it
would have amended the Local Elections (Principal Areas) (England and Wales) Rules 2006 and the Local Elections (Parishes
and Communities) (England and Wales) Rules 2006 to say so.
Environment
R (on the application of FRACK FREE BALCOMBE RESIDENTS ASSOCIATION) v WEST SUSSEX COUNTY COUNCIL (2014)
EWHC 4108
A local authority's decision to grant planning permission for exploration and appraisal of an existing hydrocarbon lateral
borehole had not been the result of any incorrect advice given by its planning officer to its planning committee.
Equality Duty
R (on the application of CUSHNIE) v SECRETARY OF STATE FOR HEALTH (2014) EWHC 3626
There had been a breach of the Equality Act 2010 s.149 by the Secretary of State for Health in the process leading up to
the making of the National Health Service (Charges to Overseas Visitors) Regulations 2011 in that adequate consideration
had not been given to the impact of the Regulations on disabled persons.
R (on the application
application of (1) ASPINALL (2) PEPPER & ORS (FORMERLY INCLUDING BRACKING)) (Claimants) v SECRETARY OF
STATE FOR WORK & PENSIONS (Defendant) & EQUALITY & HUMAN RIGHTS COMMISSION (Intervener) (2014) EWHC 4134
The secretary of state had lawfully discharged his public sector equality duty under the Equality Act 2010 s.149 when
deciding to close the independent living fund and to transfer funding to local authorities in England and to devolved
administrations in Scotland and Wales. In making the decision, he had been cognisant of the inevitable and considerable
adverse effect which the closure of the fund would have on a substantial number of disabled persons, and particularly on
those who, as a consequence, would lose the ability to live independently.
FIRSTGROUP PLC v DOUG PAULLEY (2014) EWCA Civ 1573
A bus company's policy of requesting, but not compelling, non-wheelchair users to vacate the wheelchair space on its
buses if a wheelchair user required the space did not breach its duty to make reasonable adjustments under the Equality
Act 2010 s.20(3).
Governance
R (on the application of LONDON BOROUGH OF TOWER HAMLETS) v SECRETARY OF STATE FOR COMMUNITIES & LOCAL
GOVERNMENT (2014) QBD (Admin) 14/11/2014
In deciding to direct that a "best value" inspection be carried out under the Local Government Act 1999 s.10, the scope of
the duty of the Secretary of State for Communities and Local Government as set out in s.3 was a very broad one and
detailed reasons were not required, especially in the context of confidential material and where a local authority already
knew what the issues were.
Highways
R (on the application of REDROW HOMES LTD) v KNOWSLEY METROPOLITAN BOROUGH COUNCIL (2014) EWCA Civ 1433
On the proper construction of the Highways Act 1980 s.38, agreements between a developer and highway authority for the
adoption and maintenance of highways built by a developer as public highways maintainable at the public expense might
lawfully contain a provision for a commuted sum to cover all aspects of future maintenance of the highway into the
indefinite future. They could also lawfully provide that the developer should itself pay for, or even carry out, all aspects of
future maintenance whenever they became necessary.
Housing
R (on the application of (1) C1 (2) C2 (BY THEIR MOTHER & LITIGATION FRIEND)) v HACKNEY LONDON BOROUGH COUNCIL
(2014) EWHC 3670
The Children Act 1989 s.27 did not apply to a local authority's children's services department's request for assistance from
its housing department; it applied only where one local authority was requesting help from another.
R (on the application of CN) (Appellant) v LEWISHAM LBC (Respondent) & SECRETARY OF STATE FOR COMMUNITIES &
LOCAL GOVERNMENT (Interested Party)
Party) : R (on the application of ZH (A child by FI, his litigation friend)) (Claimant) v
NEWHAM LBC (Defendant) & SECRETARY OF STATE FOR COMMUNITIES AND LOCAL GOVERNMENT (Interested Party) (2014)
UKSC 62
Temporary accommodation provided under the Housing Act 1996 s.188 was not subject to the Protection from Eviction
Act 1977 s.3. Therefore, a local authority did not need to obtain a court order before evicting a person from such
accommodation.
R (on the application of LINA JAKIMAVICIUTE) v HAMMERSMITH & FULHAM LONDON BOROUGH COUNCIL (2014) EWCA Civ
1438
In framing a housing allocation scheme, a local authority's power to set qualification criteria under the Housing Act 1996
s.160ZA(7) was subject to the duty to secure reasonable preference for certain classes of person under s.166A(3). For that
reason, it had been unlawful for a local authority to disqualify homeless applicants from registration with its allocation
scheme if they had been placed in long-term suitable temporary accommodation.
R (on the application of CONSTANTINOS REGAS) v ENFIELD LONDON BOROUGH COUNCIL (2014) EWHC 4173
A local authority's consultation on a proposal to designate the entire borough for additional licensing of houses in multiple
occupation and selective licensing of private rented sector properties had been inadequate because it had not involved
potentially interested parties in adjoining parts of the neighbouring boroughs and had not lasted long enough.
Human Rights
ROCHDALE METROPOLITAN BOROUGH COUNCIL v (1) KW (BY HER LITIGATION FRIEND CW) (2) PK (3) MW (2014) EWCOP 45
There was no deprivation of liberty for the purposes of ECHR art.5 where a person who was severely physically and
mentally disabled was being looked after in her own home under arrangements which were made and paid for by a local
authority. If the person did not have the physical or mental ability to exercise the freedom to leave, she could not
realistically be constrained from exercising it.
MICHAEL SIMS (Appellant) v DACORUM BOROUGH COUNCIL (Respondent) & SECRETARY OF STATE FOR COMMUNITIES &
LOCAL GOVERNMENT (Interested party) (2014) UKSC 63
The decision in Hammersmith and Fulham LBC v Monk [1992] 1 A.C. 478, that at common law a periodic joint residential
tenancy was terminated automatically if one joint tenant unilaterally served a notice to quit on the landlord, was not
incompatible with the other joint tenant's rights under ECHR Protocol 1 art.1 and art.8. A husband had no right to remain
in a local authority property as a sole tenant after his wife had left and given notice to the local authority landlord quitting
the joint tenancy.
BIRMINGHAM CITY COUNCIL v SARFRAZ RIAZ & 11 ORS (2014) EWHC 4247
Civil injunctions were granted in respect of ten adult Asian men in order to prevent them engaging in the sexual
exploitation of a particular vulnerable 17-year-old girl, and of other vulnerable young females. The sexual exploitation of
young females by much older men attracted very considerable widespread public interest, and the mere fact that sections
of the press and broadcast media might report the instant matter sensationally or inappropriately formed no ground for
making a reporting restrictions order in favour of the offenders.
Judicial Review
R (on the application of JOICEY) (Claimant) v NORTHUMBERLAND COUNTY COUNCIL (Defendant) & R&J BABER FARMS LTD
(Interested Party) (2014) EWHC 3657
On an application for judicial review of planning permission for the erection of a wind turbine, a claimant was entitled to
have the decision quashed where information which by law should have been available to the public was not available in a
timely fashion to enable him to participate effectively in the decision-making. The local authority could not demonstrate
that it would have come to the same conclusion if the information had been available.
R (on the application of ALEXIS ALEXANDER) (Claimant) v PARKING ADJUDICATOR (Defendant) & HAMMERSMITH & FULHAM
LONDON BOROUGH COUNCIL (Interested Party) (2014) QBD (Admin) 18/12/2014
An unsuccessful applicant for judicial review of a parking adjudicator's decision to uphold a penalty charge notice issued
by a local authority was ordered to pay one-third of the local authority's costs where the matter had been of some public
interest.
Landlord & Tenant
SIRHOWY INVESTMENTS LTD v (1) PETER NOEL HENDERSON (2) JULIE LISA KNIGHT (2014) EWHC 3562
Where tenants had failed to comply with their repair obligations, in accordance with the provisions of their lease, they
could not be taken to have validly determined the lease upon giving notice to the landlord, and accordingly the lease had
continued.
LOVERIDGE v LAMBETH LONDON BOROUGH COUNCIL (2014) UKSC 65
The Supreme Court ruled on the proper construction of the Housing Act 1988 s.28, which set out how damages were to be
calculated where a residential occupier was unlawfully evicted by his landlord.
Licensing
R (on the application of YASAR AKIN (T/A EFE'S SNOOKER CLUB)) (Claimant) v STRATFORD MAGISTRATES' COURT
(Defendant) & HACKNEY LONDON BOROUGH COUNCIL (Interested Party) (2014) QBD 28/11/2014
A district judge had not erred in applying the approach in R. v Secretary of State for the Home Department Ex p.
Jeyeanthan [2000] 1 W.L.R. 354 in circumstances where a statutory procedural requirement had not been met and in
concluding that a notice under the Licensing Act 2003 (Premises licences and club premises certificates) Regulations 2005
reg.38 was valid as there had been substantial compliance with reg.39 even though reg.39(c) had not been complied with.
Mental Health
R (on the application of WORCESTERSHIRE COUNTY COUNCIL) v ESSEX COUNTY COUNCIL
COUNCIL (2014) EWHC 3557
The context and judgment of the Mental Health Act 1983 s.117 pointed to an interpretation that was as straightforward as
possible when considering a person's residence, which should be prima facie the place where he or she was living, eating
and sleeping.
TOWER HAMLETS LBC v (1) TB (BY HER LITIGATION FRIEND, THE OFFICIAL SOLICITOR) (2) SA (2014) EWCOP 53
Sexual capacity for the purposes of the Mental Capacity Act 2005 required an awareness of the following: the mechanics of
the act; that there were health risks involved; and that there was a choice.
ROCHDALE METROPOLITAN BOROUGH COUNCIL v (1) KW (BY HER LITIGATION FRIEND CW) (2) PK (3) MW (2014) EWCOP 45
There was no deprivation of liberty for the purposes of ECHR art.5 where a person who was severely physically and
mentally disabled was being looked after in her own home under arrangements which were made and paid for by a local
authority. If the person did not have the physical or mental ability to exercise the freedom to leave, she could not
realistically be constrained from exercising it.
Negligence
NA v NOTTINGHAMSHIRE COUNTY COUNCIL (2014) EWHC 4005
4005
A local authority which had exercised reasonable care in placing a child in its care with foster carers and in supervising the
placement could not be vicariously liable for abuse perpetrated by the foster carers on the child. Nor was it fair, just or
reasonable to find that the local authority had a non-delegable duty of care so as to make it legally responsible for the
foster carers' actions.
Nuisance
ROYAL LONDON BOROUGH OF GREENWICH v CHARLOTTE TUITT (2014) CA (Civ Div) 25/11/2014
A judge had not erred in making a possession order against a public sector tenant on the basis of her son's repeated acts
of nuisance and annoyance to neighbours.
Planning
R (on the application of ROBERT HITCHINS LTD) (Claimant) v WORCESTERSHIRE COUNTY COUNCIL (Defendant)
(Defendant) &
WORCESTER CITY COUNCIL (Interested Party) (2014) EWHC 3809
A developer was not required to pay a highway authority any further contribution towards transport infrastructure and
services pursuant to an agreement under the Town and Country Planning Act 1990 s.106 where the development had been
implemented under a second planning permission granted without the s.106 obligation.
(1) ANDREW MOORE (2) MASSIMO TREBAR (3) ROBERT WAKELING (Claimant) v SECRETARY OF STATE FOR COMMUNITIES &
LOCAL GOVERNMENT (Defendant) & WATFORD BOROUGH COUNCIL (Interested Party) (2014) EWHC 3592
The secretary of state's decision to consent to the local authority's appropriation of allotments would be quashed because
his decision had preceded the developers' decision to increase the number of houses to be built on the land, which was a
material consideration.
R (on the application of OLDFIELD) (Applicant) v (1) SECRETARY OF STATE FOR COMMUNITIES & LOCAL GOVERNMENT (2)
METROPOLITAN PROPERTY REALISATION
REALISATION LTD (Respondents) & THANET DISTRICT COUNCIL (Interested Party) (2014) EWCA
Civ 1446
The secretary of state had properly considered the cumulative effects of a proposed redevelopment project and an
adjacent redevelopment project when concluding that an environmental impact assessment was unnecessary.
R (on the application of EAST MEON FORGE & CRICKET GROUND PROTECTION ASSOCIATION) (Claimant) v (1) EAST
HAMPSHIRE DISTRICT COUNCIL (2) SOUTH DOWNS NATIONAL PARK AUTHORITY (Defendants) (1) J CROUCHER (1) I
CROUCHER (Interested Parties) (2014) EWHC 3543
Planning permission for the construction of residential accommodation above workshop premises was revoked where the
planning report had rejected without adequate reasons Sport England's advice about a potential conflict between the
residential use of the building and the use of an adjoining recreation ground for cricket, with particular regard to the risk
of damage from cricket balls. The planning officer had failed to advise the committee that Sport England was a statutory
consultee whose views should be given considerable weight and only departed from for good reason.
CHESHIRE EAST COUNCIL v (1) SECRETARY OF STATE FOR COMMUNITIES & LOCAL GOVERNMENT (2) ROWLAND HOMES LTD
(2014) EWHC 3536
A planning inspector had given clear and adequate reasons when concluding that a local authority had not demonstrated
that it had a five-year supply of housing land, and had been entitled to find that a proposed development for residential
housing represented sustainable development.
SOLIHULL METROPOLITAN BOROUGH COUNCIL v (1) GALLAGHER ESTATES LTD (2) LIONCOURT HOMES (2014) EWCA Civ
1610
A local authority had failed to follow the approach required under para.47 of the National Planning Policy Framework,
which sought to "boost" housing supply "significantly", when adopting a local development plan which allocated two sites
as green belt land.
R (on the application of (1) HS2 ACTION ALLIANCE LTD (2) HILLINGDON LONDON BOROUGH COUNCIL) (Claimants) v
SECRETARY OF STATE FOR TRANSPORT
TRANSPORT (Defendant) & HIGH SPEED TWO (HS2) LTD (Interested Party) (2014) EWCA Civ 1578
Safeguarding directions made by the Secretary of State for Transport in relation to the high speed rail project HS2 did not
constitute a plan or programme which set the framework for future development consent within the meaning of Directive
2001/42 art.3(2).
R (on the application of GILLIAN HUGHES) (claimant) v SOUTH LAKELAND DISTRICT COUNCIL (Defendant) & (1) OLD
(Interested
nterested Parties) (2014) EWHC 3979
BREWERY (ULVERSTON) LTD (2) HARTLEY’S (ULVERSTON) LTD (I
The court reiterated the principles to be applied by a local authority when considering whether the advantages of
proposed development in a conservation area outweighed any harm that it was likely to cause. It considered the
presumption against the grant of permission in such cases and discussed the application of the guidance in the National
Planning Policy Framework paras 131-135.
FELIX CASH v WOKINGHAM BOROUGH COUNCIL (2014) EWHC 3748
An application under CPR Pt 8 for declarations that planning enforcement notices were nullities was an abuse of process
and should have been an application for judicial review. In any event, it was hopeless. The fact that compliance with the
enforcement notices, which required the removal of hardstanding and caravans from a site in open countryside, would
need consent from Natural England and the local authority, because of a nearby special protection area, did not invalidate
the notices.
ALDERSON v (1) SECRETARY OF STATE FOR COMMUNITIES
COMMUNITIES AND LOCAL GOVERNMENT (2) WEALDEN DISTRICT COUNCIL
(2014) QBD (Admin) 25/11/2014
A planning inspector had been entitled to uphold the refusal of planning permission by a local authority on the basis that
the proposal would have an adverse effect on the safety of road users. It was difficult to see any clear allegation of any
relevant error of law, which was required for an application under the Town and Country Planning Act 1990 s.288 to
succeed.
Property
(1) AINSLEY DAVID POWELL (2) JANE SHERGAR IRANI (Claimants)
(Claimants) v SECRETARY OF STATE FOR ENVIRONMENT, FOOD &
RURAL AFFAIRS (Defendant) & DONCASTER BOROUGH COUNCIL (Interested Party) (2014) EWHC 4009
In relation to a challenge against an order made under the Wildlife and Countryside Act 1981 s.53(2)(b) for recognition of
a footpath, the correct approach in determining whether there had been use as of right was first to examine the quality of
the use relied upon and then, once the use had passed the threshold of being of sufficient quantity and suitable quality, to
assess whether any of the vitiating elements from the tripartite test applied. There was no justification for imposing an
additional test as to whether the quality of the use was such that a reasonable landowner could be expected to intervene
to resist it.
VAT
(1) ISLE OF WIGHT COUNCIL (2) WEST BERKSHIRE COUNCIL (3) MIDMID-SUFFOLK DISTRICT COUNCIL (4) SOUTH TYNESIDE
METROPOLITAN BOROUGH COUNCIL v REVENUE & CUSTOMS COMMISISIONERS (2014) UKUT 446 (TCC) UT (Tax)
15/10/2014
The First-tier Tribunal had been entitled to find as a fact that local authorities were not entitled to recover VAT included in
supplies of off-street car parking. In reaching its findings, the tribunal had properly understood the policy considerations
which affected local authority decisions in practice and had been entitled to conclude that treating them as non-taxable
persons in respect of those supplies would distort competition in the market in the areas of pricing and outsourcing, so
that fewer commercial car parks would remain open.
Welfare
WORCESTERSHIRE COUNTY COUNCIL (Appellant) v R (on the application of J (BY HIS LITIGATION FRIEND W)) (Respondent) &
EQUALITY & HUMAN RIGHTS COMMISSION (Intervener) (2014) EWCA Civ 1518
A local authority had the power under the Children Act 1989 s.17(1) to provide services for a child in need it had assessed
regardless of the circumstances which had led to that child being no longer physically present in the local authority's area.
R (on the application of GE (ERITREA)) v (1) SECRETARY OF STATE FOR THE HOME DEPARTMENT (2) BEDFORD BOROUGH
COUNCIL (2014) EWCA Civ 1490
The question of whether someone was a "former relevant child" under the Children Act 1989 s.23C involved asking
whether they had actually been accommodated, not whether they ought to have been. However, if a local authority refused
to accommodate a child under s.20(1), having wrongly assessed them as being over 18, it would be relieved of any
potential statutory obligation once that child reached the age of 18. When such an error came to light, the local authority
could legitimately be asked to exercise its discretion to provide some of the assistance which it would otherwise have been
obliged to provide.
R (on the application of DEEQA MOHAMMED) (Claimant) v LOCAL SAFEGUARDING CHILDREN'S BOARD FOR ISLINGTON
(Defendant) & ISLINGTON LONDON BOROUGH COUNCIL (Interested Party) (2014) EWHC 3966
A claim for judicial review brought against a Local Safeguarding Children Board had become academic following its
decision, after its initial refusal, to hold a serious case review into the death of an autistic child after a fall from the
eleventh floor of a block of flats. The words "abuse or neglect of a child" in the Local Safeguarding Children Boards
Regulations 2006 reg.5(2)(a) did not refer to "abuse or neglect" by a public body which was not actually caring for, or
looking after, a child.
R (on the application of (1) C (2) T (3) M (4) U) v SOUTHWARK LONDON BOROUGH COUNCIL (2014) EWHC 3983
It was not mandatory for local authorities to comply with the Homelessness Code of Guidance for Local Authorities when
providing emergency temporary accommodation to children in need. A local authority's decision to place a mother and
three young children in bed and breakfast accommodation for eight months was regrettable, but not unlawful.
Legislation round up
Audit
Local Audit and Accountability Act 2014 (Commencement No 4) Order 2014 made
On 15 December 2014, the Local Audit and Accountability Act 2014 (Commencement No 4) Order 2014 (SI 2014/3319)
was made, bringing into force from 16 December 2014 certain provisions of the Local Audit and Accountability Act 2014
(Act).
The provisions brought into force relate to the eligibility and regulation of local auditors in Schedule 5 to the Act, plus
related provisions. Schedule 5 provides for the regulation of local auditors by a modified version of the regime set out in
Part 42 of the Companies Act 2006 (which applies to statutory auditors).
Read the SI: http://www.legislation.gov.uk/uksi/2014/3319/contents/made
Education
Amending regulations relating to school admissions published in England
On 3 November 2014, following the government's publication of its response to the consultation on proposals to revise
the School Admissions Code 2012, the School Admissions (Admission Arrangements and Co-ordination of Admission
Arrangements) (England) (Amendment) Regulations 2014 (SI 2014/2886) (Regulations) were laid before Parliament. The
regulations, which will come into force on 19 December 2014 (at the same time as the School Admissions Code 2014),
amend the School Admissions (Admission Arrangements and Co-ordination of Admission Arrangements) (England)
Regulations 2012 (SI 2012/8). In particular:
Regulation 10 amends the frequency with which an admission authority is required to consult to at least once every
seven years, where they have not consulted in the previous six years.
Regulation 11 amends the dates by which an admission authority must consult. For admission arrangements for the
school year 2017-2018 and in subsequent years, an admission authority must consult for a minimum of six weeks
between 1 October and 31 January and determine their admission arrangements by 28 February in the determination
year.
Regulation 12 amends the date by which a local authority must publish school admissions information for the school
year 2017-2018 and for subsequent years from 1 May to 15 March in the determination year.
Regulation 15 amends the frequency with which a local authority is required to consult on a qualifying scheme to
ensure consistency with the code to at least once every seven years, where it has not consulted in any of the previous
six years.
Read the SI: http://www.legislation.gov.uk/uksi/2014/2886/contents/made
Access the response and other consultation documentation: https://www.gov.uk/government/consultations/changes-tothe-school-admissions-code
Promoting British values: CounterCounter-Terrorism
Terrorism and Security Bill 20142014-15 and England schools guidance published
On 26 November 2014, the Counter-Terrorism and Security Bill 2014-15 had its first reading in the House of Commons.
Part 5 places a duty on UK specified authorities (including local authorities, schools and NHS Trusts) to "have due regard to
the need to prevent people from being drawn into terrorism" (clause 21). The Secretary of State may direct compliance
with this duty (clause 25).
The Bill also requires local authorities to establish panels to support people vulnerable to being drawn into terrorism
(clause 28). The panels will draw up individual support plans, with consent.
The Bill indicates that further guidance from the Secretary of State will explain these duties in more detail.
On 27 November 2014, the Department for Education published non-statutory advice for maintained and independent
schools in England, on their duty to actively promote fundamental British values as part of pupils' spiritual, moral, social
and cultural development.
The advice sets out principles that should be promoted in schools, including encouraging respect for democracy and
respect for the basis on which the law is made and applied in England. It lists suggested actions that schools can take to
ensure that British values are actively promoted.
Access the bill: http://services.parliament.uk/bills/2014-15/counterterrorismandsecurity.html
Regulations made amending the Education (Provision of FullFull-Time Education for Excluded Pupils) (England) Regulations
Regulations
2007
On 3 December 2014, the Education (Provision of Full-time Education for Excluded Pupils) (England) (Amendment)
Regulations 2014 (SI 2014/3216) were made. The Regulations, which amend the Education (Provision of Full-Time
Education for Excluded Pupils) (England) Regulations 2007 (SI 2007/1870):
Have the effect that, when making arrangements for providing suitable full-time education for a pupil of compulsory
school age who is excluded for a fixed period on disciplinary grounds, consecutive periods of exclusion are treated as
one continuous period of exclusion.
Provide that the "relevant day" as defined in regulation 3(3) and 4(3)(b) of the 2007 Regulations (the day from which
suitable full-time education must be provided for an excluded pupil) is the sixth consecutive school day of exclusion,
regardless of whether the pupil has been excluded for one or more fixed periods.
Read the SI: http://legislation.data.gov.uk/uksi/2014/3216/made/data.pdf
Employment
Regulations introduce two-year limitation period for retrospective holiday pay and other wages claims
The Deduction from Wages (Limitation) Regulations 2014 (SI 2014/3322) have been published. The regulations, which are
designed to limit the impact on businesses of the EAT's recent decision in Bear Scotland Ltd v Fulton (and joined cases),
impose a two-year limitation period on most unlawful deductions from wages claims, including claims for holiday pay. The
new limitation period will apply to claims presented on or after 1 July 2015.
The regulations also provide that regulation 16 of the Working Time Regulations 1998 (SI 1998/1833) does not confer a
contractual right to paid leave. This is intended to ensure that, in most cases, workers will not be able to avoid the
limitations on wages claims in the tribunal by bring a breach of contract claim in the civil courts. This amendment will take
effect on 8 January 2015.
Read the SI: http://www.legislation.gov.uk/uksi/2014/3322/contents/made
Environment
Fuel Poverty Regulations 2014 set fuel poverty target
The Fuel Poverty (England) Regulations 2014 (SI 2014/3220) were made on 4 December 2014 and came into force on 5
December 2014. They are accompanied by an explanatory memorandum.
The Regulations set a target for the government to ensure that as many fuel poor homes in England as is reasonably
practicable achieve an energy efficiency rating of Band C by 31 December 2030. The banding of a home should be
calculated by reference to the Fuel Poverty Energy Efficiency Rating Methodology, which was published in July 2014.
The government laid a first draft of the Regulations before Parliament in July 2014, and at the same time consulted on a
fuel poverty strategy for England. The fuel poverty strategy will set out the government's policies for achieving the fuel
poverty target. It laid a second version of draft Regulations before Parliament in November 2014.
Read the SI: http://www.legislation.gov.uk/uksi/2014/3220/contents/made
Read the explanatory memorandum: http://www.legislation.gov.uk/uksi/2014/3220/pdfs/uksiem_20143220_en.pdf
Freedom of Information & Data Protection
Order made bringing section 45 of the Constitutional Reform and Governance Act 2010 fully into force
On 8 December 2014, the Constitutional Reform and Governance Act 2010 (Commencement No 9) Order 2014 (SI
2014/3245) (2014 Order) was made. The 2014 Order will bring section 45(1) of the Constitutional Reform and Governance
Act 2010 (CRGA 2010) fully into force on 1 January 2015. Section 45(1) reduces the period by the end of which public
records are required by section 3(4) of the Public Records Act 1958 to be transferred to the Public Records Office from 30
to 20 years.
Certain records, including those of a magistrates' court, the Environment Agency, a health service hospital and a National
Health Authority, had remained subject to the 30-year rule under Article 3(1)(a) of the Constitutional Reform and
Governance Act 2010 (Commencement No 7) Order 2012 (SI 2012/3001). The 2014 Order means that, with effect from 1
January 2015, these types of records will be subject to the 20-year rule.
Read the SI: http://www.legislation.gov.uk/uksi/2014/3245/pdfs/uksi_20143245_en.pdf
Investigation
Orders made bringing new RIPA codes into force
On 10 December 2014, two new codes of practice relating to the Regulation of Investigatory Powers Act 2000 (RIPA) will
come into force.
Following a government consultation in July 2014 (see Legal update, Draft RIPA guidance published: covert surveillance
and property interference and covert human intelligence sources), the new codes are being brought into force by statutory
instrument. They cover:
Covert surveillance and property interference (read the SI:
http://www.legislation.gov.uk/uksi/2014/3119/contents/made)
Covert human intelligence sources (read the SI:
http://www.legislation.gov.uk/uksi/2014/3103/introduction/made)
Licensing
New regulations made governing the
the licensing of public performances by children
On 15 December 2014, the Children (Performances and Activities) (England) Regulations 2014 (SI 2014/3309) were made
and will come into force on 6 February 2015. The Regulations include general requirements in connection with all licensed
performances and:
Set out the application requirements that apply to licences for public performances by children under section 37 of the
Children and Young Persons Act 1963.
Revoke the Children (Performances) Regulations 1968 (SI 1968/1728).
Include information on documentation requirements for all licences, the powers that local authorities have to impose
conditions on a licence and the records to be kept by the licence holder.
Read the SI: http://www.legislation.gov.uk/uksi/2014/3309/contents/made
Order made introducing exemptions to Licensing Act 2003
The government has made the Legislative Reform (Entertainment Licensing) Order 2014 (SI 2014/3253), which deregulates
aspects of entertainment licensing under the Licensing Act 2003. When it comes into force on 6 April 2015, it will, among
other things, raise the audience ceiling for unregulated events on alcohol-licensed premises to 500; deregulate events
held by local authorities, hospitals, and schools; and remove licensing requirements for circus performances and for
Greco-Roman and freestyle wrestling events with an audience of up to 1,000 people. The Order has not been amended
since it was published in draft.
This is one of a number of measures by the government to reduce regulation in this area. In June 2013, it brought into
force the Licensing Act (Descriptions of Entertainment) (Amendment) Order 2013 (SI 2013/1578) to partially deregulate
plays, dance and indoor sporting events. The Deregulation Bill, which is at committee stage, contains conditions by which
film exhibitions on community premises can be exempt from the requirement for a licence.
Read the SI: http://www.legislation.gov.uk/uksi/2014/3253/pdfs/uksi_20143253_en.pdf
Pensions
PublicPublic-sector pensions: exemptions from disclosure requirements published
Consultation has started on amendments to the Occupational and Personal Pension Schemes (Disclosure of Information)
Regulations 2013 (SI 2013/2734) to ensure these operate correctly in relation to the new public-sector pension schemes
that come into force from 1 April 2015.
The draft Occupational and Personal Pension Schemes (Disclosure of Information) (Amendment) Regulations 2015 provide
that the exemptions that apply to certain public-sector pension schemes, such as not being required to give members
information contained in a scheme's annual report and not needing to provide a summary funding statement or other
scheme specific funding information, will continue to apply to the new schemes that come into force from 1 April 2015.
The draft regulations also provide that, from 1 April 2015, the current obligations of Regulation 16 of the Disclosure
Regulations will apply differently to public-sector pension schemes. Where a public-sector pension scheme has supplied
an annual "benefit information statement" in the previous 12 months, the Regulation 16 obligation that a member who has
rights to benefits that are not money purchase benefits must provide an annual benefit statement as soon as practicable
after the request was made (unless the information has already been provided to that member in the last 12 months) will
not apply.
Read the consultation: https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/368920/occpen-disclosure-of-information-regs-2015-consultation.pdf
Read the draft SI: https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/368921/occ-pendisclosure-of-information-regs-2015.pdf
Public service pension recordrecord-keeping regulations laid before Parliament
Regulations setting out the record-keeping requirements for public service pension schemes have been laid before
Parliament and will come into effect on 1 April 2015. The Public Service Pensions (Record Keeping and Miscellaneous
Amendments) Regulations 2014 (SI 2014/3138) were finalised earlier this year following a period of consultation.
In addition to the record-keeping requirements, the regulations remove the current exemption for public service schemes
from the requirement to report late payment of employer contributions contained in the Occupational Pension Schemes
(Scheme Administration) Regulations 1996 (SI 1996/1715). From 1 April 2015, managers of public service schemes will be
required to notify the Regulator of the late payment where this is likely to be of material significance.
The Regulator has consulted on a draft code of practice for the governance and administration of public service pension
schemes, which includes a section on record-keeping. The DWP say that the Regulator will publish a full consultation
response and plans to seek approval "in autumn" for the final draft of the code to be laid in Parliament.
Read the SI: http://www.legislation.gov.uk/uksi/2014/3138/made
Property
Draft Finance Bill 2015 legislation: key property tax measures
On 10 December 2014, HM Treasury and HMRC published draft legislation for the Finance Bill 2015, along with
consultation responses and technical notes. Key measures of interest to property practitioners include those on:
Capital gains tax on residential property disposals by non-residents.
Stamp Duty Land Tax (SDLT) alternative property finance relief and the extension of multiple dwellings relief to certain
lease and leaseback arrangements.
Changes to annual tax on enveloped dwellings.
More information including legislation overview documents:
https://www.gov.uk/government/publications/finance-bill-2015-draft-legislation-overview-documents
This update does not attempt to provide a full analysis of those matters with which it deals and is provided for general information purposes only and is not
intended to constitute legal advice and should not be treated as a substitute for legal advice. Weightmans accepts no responsibility for any loss that may arise
from reliance on the information in this update. The copyright in this update is owned by Weightmans LLP.
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