Local Authority News & Regulatory Weekly Updates – 5th November

UK on notice over failure to transpose free movement directive

The European Commission has sent a complementary letter of formal notice to the UK 'for failing to transpose the Free Movement Directive (2004/38/EC) as regards the requirement for economically inactive EU citizens to have comprehensive sickness insurance when on UK territory'. The Commission considers that the UK's relevant rules are in breach of EU law. In the UK, EU citizens who are affiliated with the UK public healthcare scheme (NHS) and are entitled to get medical treatment provided by the NHS are not considered as having sufficient sickness insurance.

See: LNB News 30/10/2020 92.

Beyond Brexit—clarity needed over future of UK European Consumer Centre

The Chartered Trading Standards Institute (CTSI) has announced that the UK European Consumer Centre (UK ECC) could be closed down and its employees made redundant if steps are not taken to keep its funding after 31 December 2020. At the beginning of Pctober 2020, the Consumer Minister, Paul Scully, was asked in Parliament about the future of UK consumer protection after the end of the transition period. The Minister stated that individual consumers will still be able to utilise the European Consumer Centre 'for at least one year after transition'. However, the details of this agreement are to be confirmed, and it is presently unclear in what capacity the centre will carry on with. The Service Director at UK ECC, Andy Allen welcomes the Minister's statement but highlights that there is a need for 'clarity and a definite confirmation'. Allen aims to 'work towards a solution which retains the centre and the high level of support it gives to consumers who have made purchases from European companies outside the UK'.

See: LNB News 29/10/2020 118.

Brexit Bulletin—First meeting of the Specialised Committee on Other Separation Provisions

On 30 October 2020, the UK and EU held the first meeting of the Withdrawal Agreement Specialised Committee on Other Separation Provisions, focussing on the implementation and application of Part Three of the Withdrawal Agreement (Separation Provisions). The parties reaffirmed their commitment to the implementation of these provisions, which must be complete by the end of the transition period in order to ensure an 'orderly winding-down' of ongoing transitional matters after the end of the transition period. The Specialised Committee will meet again 'as necessary' towards the end of 2020.

See: LNB News 30/10/2020 78.

Civil society sectors—new Brexit transition guidance from DCMS and webpage

The Department for Digital, Culture, Media & Sport (DCMS) has published new guidance for those working in the civil society sectors to help stakeholders prepare for the end of the transition period and beyond. Further new and updated guidance may be issued as the transition period progresses, so stakeholders are advised to monitor these pages for updates.

See: LNB News 02/11/2020 33 and LNB News 04/11/2020 37.

Gambling sector—new Brexit transition guidance from DCMS and webpage

The Department for Digital, Culture, Media & Sport (DCMS) has published new guidance for the gambling sector to help stakeholders prepare for the end of the transition period. Further new and updated guidance may be issued as the transition period progresses, so stakeholders are advised to monitor these pages for updates.

See: LNB News 02/11/2020 24 and LNB News 04/11/2020 30.

Public procurement

Public works contracts and decisive Influence—when a lease is not a lease (AG opinion: European Commission v Republic of Austria)

In this opinion, Advocate General (AG) Campos Sánchez-Bordona found that Austria had breached the requirements of Directive 2004/18/EC of 31 March 2004 on the coordination of procedures for the award of public works contracts, public supply contracts and public service contracts. A public body linked to the City of Vienna entered into a contract with a private undertaking for the construction of an office building on the undertaking’s land without complying with the provisions of Directive 2004/18/EC. The parties classified the contract as a lease whereby the public body would rent the building over more than two decades. Austria argued that the contract was therefore exempt from the requirements of Directive 2004/18/EC 2004 under Article 16(a). The AG rejected this argument on the basis that the public body had decisive influence over the planning and execution of the construction and the reality was that the contract was in fact a public works contract. Written by Jonathan Lewis, barrister, at Henderson Chambers.

See News Analysis: Public works contracts and decisive Influence—when a lease is not a lease (AG opinion: European Commission v Republic of Austria) and Case C-537/19.

Court of Justice adopts broad approach to scope of Utilities Directive (Pegaso Srl v Poste Tutela SpA)

In this case, the Court of Justice held that subcontracts which are principally intended to enable an activity covered by the Utilities Directive to be adequately carried out are caught by the directive, and a compliant public procurement exercise must be performed. In this case, caretaking, reception and security services provided to post offices were ‘postal services’, and needed to be procured in compliance with the directive. The court reached this conclusion by confirming the old case law on the Utilities Directive applies to the new Utilities Directive due to their similar scope, and will therefore apply also to the domestic Utilities Contracts Regulations post-Brexit. Written by Adam Heppinstall, barrister at Henderson Chambers.

See News Analysis: Court of Justice adopts broad approach to scope of Utilities Directive (Pegaso Srl v Poste Tutela SpA) and [2020] All ER (D) 12 (Nov).

Updated Procurement Policy Note―payment approaches in the procurement of major government contracts

On 29 October 2020, the Cabinet Office issued Procurement Policy Note 07/20—Taking account of a bidder's approach to payment in the procurement of major government contracts (PPN 07/20). PPN 07/20 updates and replaces Procurement Policy Note 04/19: Taking account of a supplier’s approach to payment in the procurement of major contracts (PPN 04/19) and sets out guidance and actions for taking payment approaches into account in the procurement of major government contracts. The revised guidance applies for in-scope public procurements advertised on or after 1 April 2021. Until then, PPN 04/19 continues to apply.

See: LNB News 29/10/2020 110.

Judicial review

Secretary of State’s duty to notify promptly following licence revocation (R (Pathan) v SoS Home Department)

The court held that the Secretary of State owes a duty to promptly notify migrants sponsored under Tier 2 (General) if their sponsor’s licence is revoked. However, the court found no corresponding duty to grant 60 days leave to allow a migrant to find an alternative sponsor. Although this leaves Tier 2 applicants in the precarious position of becoming an overstayer and having to leave the UK at short notice if their sponsor’s licence is revoked, that is no different to any applicant whose application is refused after the expiry of their leave. The court found that by failing to notify the applicant until the refusal decision, which was some nine months after he submitted his application, the Secretary of State prevented him from having the opportunity to make representations or pursue a different application for leave within the remit of section 3C of the Immigration Act 1971. Written by Shahjahan Ali, partner at DAC Beachcroft LLP.

See News Analysis: Secretary of State’s duty to notify promptly following licence revocation (R (Pathan) v SoS Home Department) and [2020] UKSC 41.

Interested party liable for costs from point it had taken on the burden of defending the claim—R (on the application of Easter) v Mid-Suffolk District Council and another

In the case of R (on the application of Easter) v Mid-Suffolk District Council, in dismissing the interested party's appeal against a costs order made against it, the Court of Appeal, Civil Division, found that the defendant local council had been prepared to settle the underlying claim with the claimant but for the intervention of the interested party. Accordingly, the interested party had been liable for costs from the point that it had taken on the burden of defending the claim which the local council would have conceded.

See: [2020] All ER (D) 114 (Oct).

Unsuccessful appeal to refuse repeat application for the setting aside of liability orders due from unpaid NNDR—Lambert v Forest of Dean District Council

In the case of Lambert v Forest of Dean District Council, the appellant unsuccessfully appealed by way of case stated from the magistrates' court's decision to refuse his repeat application for the setting aside of liability orders previously made against him in respect of unpaid national non-domestic rates claimed by the respondent local authority. In dismissing the appeal, the Administrative Court held that the cause of action in the repeat application was identical to the cause of action in the previous application. Consequently, the strictest form of res judicata applied; namely, cause of action estoppel. It followed that the bar on re-litigation was absolute, unless fraud or collusion was alleged, such as to justify setting aside the earlier judgment.

See: [2020] All ER (D) 19 (Nov).

Council ‘too rigid’ in denying parking space to boy with autism

The Local Government & Social Care Ombudsman has concluded an investigation into Tower Hamlets Council after the family of a boy with autism, receiving the highest rate of Disability Living Allowance, was denied a parking bay outside their house. Following the investigation, the Ombudsman found the council applied ‘too rigid an approach when considering the family’s application’, particularly as, when assessed for a blue badge parking permit, the assessor ‘felt the boy’s needs were among the highest she had seen’. The boy is unaware of dangers and tends to run out into the road, as well as often having ‘meltdowns’ and refusing to walk, thus requiring a wheelchair and space for it. The Ombudsman found the council at fault for denying the initial application and not providing clear reasoning for the denial and subsequent change of mind on appeal—as such, the council has agreed to install a parking bay and pay the family £1,000 for the distress and delay.

See: LNB News 29/10/2020 52.

'Rapid' non-statutory review to be conducted into Nottingham council

The Local Government Secretary, Robert Jenrick, has confirmed that a rapid non-statutory review will be conducted into Nottingham City Council, which will look into the council’s governance and risk management issues associated with the council’s private energy company Robin Hood Energy. Nottingham City Council has agreed to the review, which follows a number of issues raised in a Public Interest Report published in August 2020 by Grant Thornton. The report highlighted the 'serious failure of the governance at the council since Robin Hood Energy was set up in 2015, including lack of effective risk management, plus failure to take on advice or pass on accurate and timely information'. Max Caller CBE has been appointed to lead the review and he will make recommendations to Jenrick in late November 2020. The recommendations will be published at a later date.

See: LNB News 02/11/2020 88.

MHCLG confirms rapid review into Croydon council following financial concerns

The Ministry of Housing, Communities & Local Government (MHCLG) has confirmed that ‘a rapid non-statutory review’ is to be conducted into the London Borough of Croydon, after it announced it will seek exceptional financial support from MHCLG. Serious concerns about the council’s financial management were also raised in a Public Interest Report published by Grant Thornton. The review will focus on the council’s governance, culture and risk management and will make recommendations based on its findings.

See: LNB News 29/10/2020 34.

CIOT makes case for integrating business rates with UK tax regime

The Chartered Institute of Taxation (CIOT) has responded to the HMRC’s second tranche of the review of non-domestic rates in England. The CIOT states that businesses rates are being increasingly perceived as a tax, as opposed to a property cost, therefore there is a case for making the business rates system integrated with the wider UK tax regime.

See: LNB News 03/11/2020 15.

Record number claiming council tax support, says LGA

The Local Government Association (LGA) has announced that following its analysis a record numbers of individuals are claiming council tax support. The report shows that over 2.5 million working age individuals across England claimed a council tax discount between April 2020 and June 2020, the highest level since records commenced in 2015. The LGA expects this number will continue to increase due to the economic fall-out from coronavirus (COVID-19).

See: LNB News 30/10/2020 87.

DfT launches competition to improve public transport for disabled people

The Department for Transport (DfT) has announced that it is launching an Accessible Technology Research and Innovation Grant (A-TRIG), to invest up to £500,000 in projects to improve access to services for disabled people or inspire more confidence to travel. The projects developed thanks to A-TRIG ‘could’ include ways for visually-impaired passengers to identify the bus they need, smartphone apps to report inaccessibility and track progress and a ‘Wayfinder-style’ system to plan bus journeys.

See: LNB News 03/11/2020 27.

Home Office issues report assessing modern slavery Local Authority Pathway pilot

The Home Office has published a report which assesses the modern slavery Local Authority Pathway (LAP) pilot which took place across Birmingham, Derby, Croydon, Leeds, Nottingham and Redbridge between April 2018 and March 2020. The report outlines best practice and the effective transition for victims of modern slavery after they leave the National Referral Mechanism. The findings of the report include, but are not limited to, 173 referrals into the LAP pilot, which saw 143 accepted and 30 rejected, males made up around two-thirds of accepted referrals, 77% of victims did not speak fluent English on referral and some pilots identified the challenges in securing appropriate housing. The report also suggests key recommendations to improve the transition of victims into local services.

See: LNB News 29/10/2020 112.

Lord Chief Justice lays Annual Report 2020 before Parliament

The Lord Chief Justice has laid the Annual Report 2020 before Parliament. ​The report addresses a range of issues, including the impact of the coronavirus (COVID-19) pandemic, as well as providing an update on the reform programme and the work of each of the jurisdictions.

See: LNB News 03/11/2020 104.

Treasury Direction and guidance published on restriction of public sector exit payments

HM Treasury has published guidance and a direction on the restriction of public sector exit payments. According to HM Treasury, the guidance should be read in conjunction with the Restriction of Public Sector Exit Payments Regulations 2020, SI 2020/1122. It outlines how public sector authorities listed in the schedule to the regulations should implement those regulations, which, when they come into force on 4 November 2020, will impose a cap on the exit payments specific public sector authorities can make in connection with the exit of an employee or office holder. The cap is set at £95,000 but there are some payments outside the scope of the cap and there are certain circumstances in which the cap may be relaxed.

See: LNB News 30/10/2020 28.

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Social housing

Council overcharges tenants for water and sewage services (Kingston-upon-Thames v Moss)

The Court of Appeal has ruled that Kingston Council has been re-selling water to thousands of its tenants, owing to an agreement Kingston made with Thames Water. The question for the court was whether Thames Water was supplying water and sewage services to Kingston or to Kingston’s tenants. The court concluded there was no real doubt that the supply was to Kingston, with the effect that Kingston was therefore re-selling to its tenants. This meant that the amount it could charge under the legislation was capped, with the consequence that the council had been overcharging its tenants, including Mr Moss. It is not yet known whether Kingston will seek to appeal to the Supreme Court or will come to an arrangement with its tenants. The consequences are likely to be expensive and may impact on other councils and Housing Associations. Written by David Nicholls, barrister, at Landmark Chambers.

See News Analysis: Council overcharges tenants for water and sewage services (Kingston-upon-Thames v Moss).

Civil penalties for multiple occupation reduced because FTT took irrelevant considerations into account when assessing the seriousness of the offences—Sheffield City Council and Hussain (also known as Navid Sabir)

In the case of Sheffield City Council and Hussain (also known as Navid Sabir), the appellant local authority successfully appealed against a decision of the First-tier Tribunal (Property Chamber)(the FTT) in which civil penalties imposed on the respondent landlord of two houses in multiple occupation were reduced from £75,000 to £45,0000 because the FTT had taken a different view of the seriousness of the relevant housing offences from that taken by the appellant. In allowing the appeal, the Upper Tribunal (Lands Chamber) decided that the FTT had taken into account an irrelevant consideration in its assessment of the seriousness of the respondent's offences. It had also departed from the appellant's policy in a material way without giving any good reason for doing so. Accordingly, the FTT's decision was set aside so far as it concerned the penalties appropriate to the breaches of regs 4 and 7 of the Management of Houses in Multiple Occupation (England) Regulations 2006, SI 2006/372. Applying SCC's own policy, the appropriate penalty for the totality of the offences committed by the respondent was £50,000.

See: [2020] All ER (D) 06 (Nov).

Over £150m in funding to provide homes for 3,300 rough sleepers announced

The Ministry of Housing, Communities & Local Government has announced the allocation of over £150m in funding for the long-term housing of 3,300 rough sleepers and vulnerable people. The new homes will be made available in every region in England and will be available by the end of March 2021. The £150m in funding is part of the government’s plan to deliver 6,000 new homes with £433m of investments during this Parliament.

See: LNB News 29/10/2020 32.

Review to be conducted on ‘right to build’ day

Housing Secretary, Robert Jenrick, has announced that a review will be conducted on ‘right to build’ day, aiming to make it easier for individuals to build their own home. There are approximately 15,000 homes built each year in this way and the self and custom build industry is estimated to be worth around £4.5bn. The review will examine how effective the arrangements are to support self and custom building, including whether they increase land available to support the schemes. Additionally, in order to increase transparency, the data councils collect on self and custom build will be published annually.

See: LNB News 30/10/2020 19.

Ofsted publishes protocol on gathering evidence to secure incomplete inspection

Ofsted has published a new protocol titled gathering additional evidence to secure an incomplete inspection which sets out how Ofsted deals with incomplete inspections where additional evidence needs to be gathered in order to secure the inspection evidence base. The protocol applies to inspections, visits and monitoring visits.

See: LNB News 02/11/2020 62.

Additional Learning Needs and Education Tribunal (Wales) Act 2018 (Commencement No 1) Order 2020, SI 2020/1182

Certain provisions of the Additional Learning Needs and Education Tribunal (Wales) Act 2018 come into force on 2 November 2020. These provisions give the power to produce enabling regulations to bring the provisions of the legislation into effect.

See: LNB News 02/11/2020 39.

Trial judge’s decision from fact finding hearing was unreasonable with several errors of approach so it was ordered to be reheard—Re S (a child) (care proceedings: finding of fact)

In the case of Re S (a child) (care proceedings: finding of fact), while noting the limited circumstances in which an appeal court could interfere with findings of fact made by lower courts, the Court of Appeal, Civil Division, reluctantly found that the trial judge's decision following a fact-finding hearing that had taken place during care proceedings was unsustainable. The court found that the judge had made several errors of approach and ordered that the matter be reheard.

See: [2020] All ER (D) 125 (Oct).

Court held an application under the MCA 2005, s 21A did not permit the making of an interim declaration pursuant to s 48—DP v A local authority

In the case of DP v A local authority, where the respondent local authority had been granted a standard authorisation, depriving the applicant (DP) of his liberty, and an order had been sought under section 21A of the Mental Capacity Act 2005 (MCA 2005), terminating that authorisation, the Court of Protection allowed DP's appeal against the district judge's decision that, among other things, there was sufficient evidence to make an interim declaration, pursuant to MCA 2005, s 48, that DP lacked capacity to make decisions with regard to his care and residence. The court ruled that an application made pursuant to MCA 2005, s 21A (to vary or to discharge a deprivation of liberty authorisation) did not permit the making of an interim declaration pursuant to MCA 2005, s 48, and that the deputy district judge had erred in her approach by conflating the making of MCA 2005, s 48 declaration of incapacity with a 'best interests' decision.

See: [2020] All ER (D) 118 (Oct).

Court of Protection approves treatment plan for mentally incapacitated cancer patient—TC (Urgent Medical Treatment)

In the case of TC (Urgent Medical Treatment), this urgent application to the Court of Protection concerned TC, a 69-year-old woman with advanced cancer of the larynx, which was becoming increasingly life threatening. TC’s mental health deteriorated to such an extent that there were doubts about her capacity to make decisions about her cancer treatment. TC also started to say that she did not wish to go ahead with the treatment. The treating NHS Trust urgently applied for personal welfare orders to the effect that TC lacked capacity to take decisions regarding her treatment, that the medical treatment was in TC’s best interests and to authorise the deprivation of TC's liberty to the extent that the arrangements set out in the treatment plan amounted to such. The NHS Trust, the Official Solicitor (on TC’s behalf) and TC’s husband and children were in agreement that TC lacked the requisite capacity and that the proposed treatment plan was in her best interests. After considering all the evidence, Mr Justice Cobb granted the orders sought.

See: [2020] EWCOP 53.

Supreme Court rules damages cannot be claimed for loss resulting from unlawful killing

The Supreme Court has unanimously dismissed an appeal by Ecila Henderson, holding that her claim for damages against Dorset Healthcare University NHS Foundation Trust (Dorset Healthcare) is barred by the illegality defence. The Supreme Court held that Ms Henderson could not claim damages for any of the heads of loss presented because they arose from the unlawful act of killing her mother. Henry King, barrister at 12 King’s Bench Walk, comments on the Supreme Court’s judgment.

See: LNB News 30/10/2020 80.

Restriction on the export of UK flu vaccines introduced

The Department of Health and Social Care has announced the introduction of new restrictions on the export of flu vaccine supplies from the UK. The restrictions will stop the export of medicines placed on the market to be used in the UK, with the scope of protecting supplies for UK patients. The restrictions have been introduced following a rise in demand for flu vaccines from other countries to ‘mitigate against the risk of these products being exported’.

See: LNB News 02/11/2020 60.

CQC announces no changes to 2021–22 fees scheme

The Care Quality Commission (CQC) has announced that there will be no changes to the CQC fees scheme for 2021–22, meaning that fees for ‘most providers’ will remain the same as in 2019–20, unless their registration or size changes. Small fee changes (increases or decreases) may be faced by NHS trusts, NHS GPs and community social care providers, as the fees for each provider are calculated by comparing the providers' respective sizes against the total size of the sector, and both change annually. The CQC has stated, however, that ‘the total fees collected for each sector will not change’, and they will not be consulting on fees this year due to the lack of change.

See: LNB News 29/10/2020 115.

GPhC seeks views on managing fitness to practise concerns

The General Pharmaceutical Council (GPhC) has launched a consultation into managing fitness to practise concerns in the interests of giving ‘patients and the public better protection while being fair to pharmacy professionals’. The GPhC hopes, through the consultation, to improve the current strategy to ‘take quick action’ where appropriate, while also protecting patients, and ‘promoting and encouraging a learning culture’ for pharmacy professionals. The consultation will run until 22 January 2021, and the GPhC welcomes responses from both individuals and organisations.

See: LNB News 29/10/2020 123.

Court finds committee was not materially misled by planning officer’s report (Zins v East Suffolk Council)

The court dismissed a challenge to a grant of conditional planning permission for the creation of a lake for recreational activities, finding that the officer’s report did not mislead committee members in relation to advice regarding the noise effects or the heritage benefits of the development. The decision confirms that there is no legal requirement for planning officers’ reports to set out verbatim advice from experts or consultees.

See News Analysis: Court finds committee was not materially misled by planning officer’s report (Zins v East Suffolk Council).

Law Society fears planning White Paper may lead to uncertainty

The Law Society has responded to the Ministry of Housing, Communities and Local Government (MHCLG) consultation on its ‘planning for the future’ White Paper, which provides for wholescale reforms to the planning system. The Law Society welcomes the prospect of simplifying local plans but believes that reforming the whole system at once risks resulting in uncertainty, especially given the impact of the coronavirus (COVID-19) pandemic and the end of the transition period.

See: LNB News 29/10/2020 68.

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