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LOCAL GOVERNMENT LAW UPDATE 2016

Richard Clayton QC

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Richard Clayton QC carries out a wide range of advisory and litigation work in the

public law and local government field: eg education, housing, social

services/community care and mental health, vires powers and local government

finance, constitutional and standards issues, public procurement, health care and

human rights. He has appeared in many Supreme Court, House of Lords and Privy

Council cases, most recently last year in the important Freedom of Information case,

Kennedy v Charity Commission in 2015. Richard is ranked in Chambers Directory

as a Leading Silk in Public Law, Human Rights and Local Government Law. Other

recent cases of note include R( Watch Tower) v Charity Commission (2016) (Court of

Appeal (judicial review and alternative remedy), R((English Bridge Union v Sports

Council (2015) (whether Bridge is a sport) R(Hall) v Leicestershire County Council

((2015) (cuts and consultation), R(T) v Trafford MBC (2015) (cuts and

consultation), R v Misick (2014) (8 day hearing before Turks and Caicos Court of

Appeal) (constitutional challenge to judicial independence), R(Hardy) v Sandwell

MBC (2014) (discretionary housing allowance and Art 14), R(Wood) v Leeds City

Council ((2014) successful challenge to increase in allotment rents by Leeds

Allotment Society) and R(Bridgerow) v Chester West (2014) (local government

delegation). He has been the United Kingdom’s representative to the Venice

Commission, the Council of Europe’s advisory body on constitutional law since

2011, is a former Chairman of the Constitutional and Administrative Law Bar

Association and a former Vice Chair of Liberty. Richard is a Visiting Professor at

UCL, London and an Associate Fellow at the Centre for Public Law at Cambridge

University.

I am extremely grateful for the all the assistance provided by my colleagues:

Dilpreet Dhanoa, Philip Patterson, Lee Parkhill and Marc Samuels.

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COMMUNITY CARE

Adult Social Care

Ordinary residence

1. The Supreme Court considered the concept of ‘ordinary residence’, which

determined responsibility for social care provision, in R (on the Application

of Cornwall Council) v Secretary of State for Health.1 The case concerned

which of three local authorities was responsibility for funding the care of an

incapacitated young man, PH. Responsibility would be determined by

ascertaining PH’s place of ‘ordinarily resident’ when he reached adulthood.

As a young child PH had lived in Wiltshire with his family. When he was

four, his parents moved to Cornwall. In accordance with its duties under the

Children Act 1989 s.20, Wiltshire placed him in foster care in South

Gloucestershire for 14 years. Under the terms of the 1989 Act, Wiltshire had

remained responsible for PH’s placement, as a child, in South Gloucestershire.

PH continued to have strong links with his parents. At 18, he moved to an

adult placement in Somerset. The question of responsibility as between

Wiltshire, Cornwall and South Gloucestershire was disputed. The Secretary

of State had determined, in reliance on the ‘test’ in R. v Waltham Forest LBC

Ex p. Vale that Cornwall was responsible, as an incapacitated person was

deemed to have the same ordinary residence as his parents until he reached

majority.2 The Court of Appeal disagreed. It found that PH no longer had any

connection with Wiltshire, and that South Gloucestershire was responsible for

him because that was where his social and family life had been concentrated

in the years leading up to his 18th birthday.

2. The Supreme Court held that Wiltshire was responsible for PH’s care. The

Court observed that Vale had taken aspects of earlier authorities and

concluded that a mentally incapacitated adult, who was incapable of

voluntarily adopting a place of ordinary residence, had the ordinary

residence of her parents because that was her ‘base’. That approach was

not expressly disapproved. However, the Court emphasised that the

statutory context was crucial to determining ordinary residence. The

court said that the Court of Appeal’s conclusion, that South

Gloucestershire was responsible, ran counter to the policy of the

legislation. There was no connection of any kind with South

1 2015] UKSC 46 2 Times, February 25, 1985,

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Gloucestershire, apart from PH’s historic placement there (arranged by

Wiltshire). It would, the Court said, be very undesirable, and contrary to

the policy of both the Children Act 1989 and the National Assistance Act

1948 Act, to allow a local authority to export its social welfare

responsibilities by placing a child for which it had responsibility in a

different geographical area in the expectation that when he or she reached

18, the child would be regarded as ordinarily resident in that area for the

purposes of the 1948 Act.

3. The judgment was based on the National Assistance Act 1948. That Act has, in

relation to England, been replaced by the Care Act 2014. However, the 2014

Act still employs the concept of ordinary residence, and so the judgment will

continue to be relevant. The judgement makes it clear that once a Local

Authority has responsibility for accommodating a child under the Children

Act, its responsibility is likely to continue into adulthood if, after reaching 18,

the child has needs for care which fall to be met under the Care Act. However,

all will depend on the facts of particular cases.

Care Act 2014

4. The first judicial review under the Care Act 2014 was R (SG) v London

Borough of Haringey.3 The claimant challenged two decisions taken by

Haringey: one, in January 2015, when it refused to accommodate her under s.

21 of the National Assistance Act 1948, and the second, in May 2015, when

Haringey decided that SG was entitled to some services but not entitled to

accommodation under the Care Act. SG was an asylum seeker and was, at the

relevant time, accommodated by the Secretary of State under the Immigration

and Asylum Act 1999. The court held that the challenge to the January

decision (to the s. 21 decision) could not proceed. The effect of the May

assessment under the Care Act, and the transitional provisions (see para. 4

above) was that there could be no continued reliance on the 1948 Act. The

challenge to the January decision was therefore academic. In respect of the

May decision, under the Care Act, there were a number of challenges. Two

were upheld.

5. First, the Claimant challenged the absence of an advocate during the

assessment. Haringey accepted that the Claimant was entitled to an advocate

under s. 67 of the Act, but contended that the absence of an advocate did not

lead to a flawed assessment. Haringey also pointed to the lack of available

advocates. The court rejected Haringey’s arguments and upheld the

3 [2015] EWHC 2579 (Admin)

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Claimant’s challenge, observing that s. 67 ‘could not be clearer’ – providing

that (where the criteria in s. 67(4) are met) an advocate ‘must’ be appointed.

6. As regards the provision of accommodation the Claimant argued that, as was

the case under section 21 of the 1948 Act, in determining whether or not

accommodation must be provided under the Care Act 2014, Haringey was

obliged to ignore altogether the fact that she had accommodation from the

Secretary of State under the Immigration and Asylum Act 1999 Act. Haringey

had questioned that, but eventually conceded the point.

7. The court reviewed a number authorities under the 1948 Act and at para. 56

the Deputy High Court Judge said:

I first reiterate that the authorities already considered stand for these

propositions, which I think continue to apply under the Care Act:

(a) the services provided by the council must be accommodation-related

for accommodation to be potentially a duty;

(b) in most cases the matter is best left to the good judgment and

common sense of the local authority;

(c) “accommodation-related care and attention” means care and

attention of a sort which is normally provided in the home or will be

“effectively useless” if the claimant has no home.

8. The court accepted the Claimant’s contention that the first time it appeared

Haringey had considered whether it was under a duty to provide

accommodation was in its pre-action letter. The court also accepted that there

was no evidence that Haringey had asked itself whether, even if services it

was providing to the Claimant could have been provided in a non-home

environment, they would have been rendered effectively useless if the

claimant were homeless and sleeping on the street. The court concluded

therefore that the support plan should be quashed.

Reducing care provision - procedural requirements

9. The procedural requirements to be followed before amending care provision

were considered by the Administrative Court in OH v London Borough of

Bexley.4 The Claimant, OH, had Down’s syndrome and general

developmental delay. The court quashed the Council’s decision to reduce the

community care provision for OH.

10. In dispute was what happened after OH finished attending a residential

special school in July 2014. The Council contended that the claimant had been

4 [2015] EWHC 1843

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given an agreed ‘baseline’ care package of 4 days of day care per week, which

was what he required. Additionally, the Council contended that OH was

given, for a pre-set period of time only, additional support equating to 24

hours of care per week. Once this pre-set period of higher support ended, the

Council said OH reverted to his baseline care package. OH argued that the

higher level of support what he in fact required.

11. The court rejected the Council’s assertion that a baseline care package had

been agreed at an assessment meeting. Reviewing various emails and other

documentation, the judge also found that both parties had expected OH to

have a ‘reablement assessment’ at the end of the period of higher care. That

assessment would have informed whether the lower, baseline, level of care

was sufficient for OH. However, in fact, no such assessment was ever carried

out and the level of care simply reduced. That was unlawful. The court held

that the Council was required to review OH and produce a revised support

plan before reducing his care, but had failed to do so. The court observed that

there had been a failure to give reasons for the alternation in the care

provision. The Judge observed that ‘Even if the evidence supported the existence

of an agreed baseline care package, the situation cried out for an explanation by the

defendant as to its approach when the reablement assessment did not take place…‘

The court quashed the Council’s decision to reduce OH’s care provision

below 24 hours per week and issued a mandatory order requiring the council

to re-assess the claimant’s community care needs.

Care home fees – property disregard

12. In Walford v Worcestershire County Council the Court of Appeal considered

when a care home resident’s house should be disregarded from the

calculation of their contribution to care home fees.5 The Claimant’s mother

was in a care home. She challenged the Council’s decision not to disregard her

mother’s house when calculating her mother’s contribution. A care home

resident’s house has to be disregarded if it is occupied by certain relatives of

the resident. The legislation, which requires the disregard (the National

Assistance (Assessment of Resources) Regulations 1992), sought to avoid, for

example, a spouse having to sell the home they occupy to pay for their

husband’s / wife’s care home fees.

13. The Claimant would have been a qualifying relative to trigger the disregard

(because she was aged over 60). However, the dispute was whether the

Regulations allowed for the disregard to apply when the relative occupies the

5 [2015] EWCA Civ 22

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home after the resident is admitted to a care home. The Council contended

that the disregard only applied if the qualifying relative occupied the house at

the time their relative was first admitted to the care home. The court (by

majority) held that the Council’s interpretation of the Regulations was correct,

and that the disregard provisions should be read as applying only to

properties occupied by the family members at the date the resident first went

into care. The court observed that the Claimant’s circumstances were quite

different from the circumstances which the policy behind the disregard

sought to address, i.e. of a relative being required to leave their home, because

it had been taken into account in calculating care home contributions. The

position of relatives who might, in the future, want to make the care home

resident’s house their home, and who would be disappointed by having to

sell the property (because it has been included in calculating charges) was

fundamentally different from the relative who is required to leave what is

already their home.

Calculating rates of NHS funded nursing care

14. In Forge Care Homes Ltd v Cardiff & Vale University Health Board the Court

of Appeal considered the extent of the NHS’ responsibility to fund nurses in

care homes.6 At first instance, Hickinbottom J quashed determinations of the

seven NHS local health boards in Wales (‘LHBs’) as to the rate they would

pay for the provision of nursing care to for care home residents who were

entitled to NHS ‘funded nursing care’ (distinct from NHS Continuing

Healthcare). Residents entitled to NHS funded nursing care have their basic

placement cost met by a local authority (or self-fund) and the NHS pays an

additional, flat-rate, sum in respect of necessary nursing care. The LHBs

argued that in calculating how much their FNC contributions should be they

were only obliged to fund the cost of providing nursing care – i.e. clinical or

medical care – delivered by registered nurses. The LHBs said they did not

have to fund the provision of other services (e.g. social care) even if those

services were provided by registered nurses. The LHBs also argued that they

did not have to pay for nurses to be on stand-by, despite the fact that the Care

Homes (Wales) Regulations 2002 required that every care home which offers

nursing should have a qualified registered nurse available at all times.

15. The key provision was s. 49 of the Health and Social Care Act 2001. Section 49

provides that local authorities cannot provide ‘nursing care by a registered

nurse.’ However, s. 49 provides for an exception, in respect of:

6 [2016] EWCA Civ 26

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… any services which, having regard to their nature and the circumstances in

which they are provided, do not need to be provided by a registered nurse.

16. Section 49 of the 2001 Act no longer applies to England but similar provision,

relating to England, is made in s. 22 of the Care Act 2014. The court held that

the excluding words in s. 49 meant there are will be some care services,

provided by a registered nurse, which will not fall within the definition of

"nursing care by a registered nurse" to which the prohibition applied. There

must therefore be an apportionment of the nurses’ costs, according to the

services they actually provide, with the LHBs only being responsible for the

cost of providing nursing care which must be provided by a registered nurse.

17. The court held that Hickinbottom J had erred in accepting that the

requirement (imposed by Regulations) for a nurse to be on the premises at all

times meant that everything the nurse did on duty was to be treated as a

service which needed to be provided by a registered nurse. Whether a nurse's

on-duty actions were a service that needed to be provided by a registered

nurse was a question of fact. Lloyd Jones LJ observed that the proper meaning

of s. 49 of the Act could not be determined by the Regulations, saying that

they were:

distinct provisions and the meaning of the former, an item of primary

legislation, cannot be dictated by the latter, an item of subordinate legislation

of a later date. The tail should not be permitted to wag the dog.’

Rates paid to care homes

18. Mayfield Care Ltd & Anor v St Helen's Council was another challenge to rates

paid for care home placements. Local authorities are not obliged to pay more

than "the usual cost", namely the amount they would usually expect to pay

for the relevant type of residential care accommodation.7 The relevant

statutory guidance requires local authorities to set their usual costs at the start

of each financial period and directed local authorities to have due regard,

when setting the usual cost, to factors including the actual costs of providing

care. One element of the actual cost was the rate of return on capital invested.

The local authority partly calculated return on capital on a mathematical basis

and partly on its judgement and expertise regarding the behaviour of local

care homes, the state of the local care homes market and what the local

authority could afford. The owners argued that the local authority's approach

7 [2015] EWHC 1057 (Admin)

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to return on capital was flawed, meaning that it had failed to pay due regard

to the actual cost of care. The claim was refused. The court held that in

having due regard to the actual costs of care, local authorities were not

obliged to follow any particular methodology; in particular, there was no

obligation to carry out mathematical calculation identifying the figures

attributed to the constituent elements of care homes’ costs. The court also held

that although other similar challenges have proceeded on the basis of errors

as to treatment of return on capital, there is in fact no requirement that some

allowance for return on capital be made. HHJ Stephen Davies held that the

earlier authorities, where return on capital was raised,

do not, on proper analysis, establish that as a matter of fact or law that a local

authority must include some allowance for return on capital, still less a

specified minimum rate of return on capital, either when inquiring into actual

costs or in setting usual costs.’

19. The Defendant had allowed for an element of return, and the challenge was to

the adequacy of its approach to that issue. However, the challenge to its

handling of the issue was necessarily undermined by the court’s conclusion

that there was no requirement to allow for return on capital. The Defendant’s

approach to determining the appropriate rate of return was to consider a

mathematical model but to also apply its judgment and experience of the local

market. The Claimant contended that having embarked on the mathematical

modelling approach, the Council was obliged to use that approach (and the

figures within it) and was precluded from departing from those figures based

solely on the Council’s judgment and experience of the market. The court

rejected that argument. The court held that as the manner of the inquiry was

for the local authority, and since there was no obligation to adopt any

particular approach, there could be no objection to a local authority adopting

a ‘hybrid’ approach, which included a mathematical model and the exercise

of judgement and experience which was based in part on its consideration of

the market in the local area.

Mental Capacity and the Court of Protection

Attempts to revisit Cheshire West

20. Mostyn J’s efforts to row back from Cheshire West have been brought to an

end by the Court of Appeal in Rochdale MBC v KW.8 KW lived at home,

under a package of 24 hour care. The Local Authority had applied to the

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Court of Protection for an order determining whether KW was deprived of

her liberty, following the Supreme Court’s decision in Cheshire West and

Chester Council v P [2014] UKSC 19. Mostyn J distinguished Cheshire West

and held that the care package did not amount to a deprivation of liberty.

21. KW appealed. All parties agreed that the appeal should be allowed and so a

consent order was filed with the Court of Appeal. The Court made the order,

agreeing (but not expressly stating) that KW’s care regime amounted to a

deprivation of liberty. As with any such court authorised deprivation of

liberty, the proceedings remained live for the purpose of reviews by the

Court. After the appeal was allowed Mostyn J reserved the case to himself an

listed a further hearing to himself and directed that there be a further hearing

to determine whether restrictions amounted to a deprivation of liberty.

Mostyn J criticised the route taken by the Court of Appeal, in allowing the

appeal without a hearing or giving judgment. The Judge suggested the

consent order was ultra vires. The learned Judge also maintained his

conclusion that KW was not deprived of her liberty. KW appealed, again.

22. The Court of Appeal held that Mostyn J was wrong to have considered that

the Court of Appeal had not determined that KW was deprived of her liberty.

There had therefore been no basis for Mostyn J embarking on another

consideration of whether her care amounted to a deprivation of liberty. The

Court of Appeal also rejected the Judge’s criticism of the first appeal being

settled by consent. Lord Dyson MR said that the case had an ‘unfortunate

history’, and observed that ‘the judge's passionate view that the legal analysis of the

majority in Cheshire West is wrong is in danger of distorting his approach to these

cases.’ The Court of Appeal suggested that further reviews of KW’s case not be

undertaken by Mostyn J.

Representation for P

23. In NRA & Others Charles J , Vice-President of the Court of Protection,

considered whether P needs to be a party to all proceedings in which a local

authority seeks authorisation of P’s deprivation of liberty. 9Munby JL had

considered the question in Re X [2014] EWCOP 25, and concluded that P need

not be a party to applications proceeding along the streamlined process (i.e.

non-contentious cases). However, the Court of Appeal (in Re X (Court of

Protection Practice))10 said that P must be a party in all applications for

orders which would authorise their deprivation of liberty. The question had

to be considered again by Charles J because the Court of Appeal’s

9 [2015] EWCOP 59 10 [2015] EWCA Civ 599

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observations on the issue were not binding authority, the Court of Appeal

having concluded that it had no jurisdiction to hear the appeal in Re X.

Therefore, as Charles J said, he was faced with ‘persuasive but contradictory

obiter dicta’ on the issue.

24. Despite the recently expressed views of the Court of Appeal, Charles J

reached the same conclusions as Munby LJ had reached in Re X; P need not be

a party to all applications which seek authorisation of a deprivation of liberty.

The court acknowledged the significant practical problems that arise if all Ps

are to be parties to such applications, and are to have the Official Solicitor as

their litigation friend. In the ten test cases before Charles J the Official Solicitor

had initially refused to act as litigation friend because he lacked the resources

to undertake the necessary work. Although, by the time of the hearing before

Charles J, the Official Solicitor had been able to re-organise matters so as to be

able to act in eight of the 10 cases, Charles J recorded that it is likely the

Official Solicitor will again reach ‘saturation point’ in the near future. In the

two cases where the Official Solicitor was not acting for P (and where P had

not been made a party) Charles J made orders appointing a parent as a

representative under the new rule 3A of the Court of Protection Rules and

authorised their deprivation of liberty. The court was satisfied that the

appointment of rule 3A representatives in those cases afforded to P the

necessary procedural safeguards and that P’s best interests were promoted by

appointing a representative rather than by joining P as a party (para. 236).

25. It should be remembered that this judgment does not mean that P never

needs to be a party; this judgment was concerned with those cases where the

proposed care arrangements are not contentious. There will still be many

cases where it will be necessary to join P, and to appoint a litigation friend for

them e.g. where there is a dispute. From paragraph 158 Charles J discussed

who could act as P’s litigation friend, and confirmed that in many cases a

family member may well be suitable to fulfil the role. Indeed, the learned

Judge suggested that a family member or friend who has cared for P ‘will be

the best or an appropriate litigation friend because they know P best, and will be best

placed to ensure the promotion of P’s best interests…’

26. Charles J had to consider again the issue of representation for P, in Re X

applications to authorise a deprivation of liberty, in Re JM.11 In the cases

before Charles J on this occasion there was no family member / friend willing

or able to act as a rule 3A representative (as per the solution found in NRA).

In the absence of the Official Solicitor or a rule 3A representative, the

11 [2016] EWCOP 15

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minimum procedural requirements, necessary to be met before authorising a

deprivation of liberty, could not be met. The Court had to consider how to

proceed.

27. Charles J expressed regret that the Secretary of State had failed to make

resources available for the appointment of professional rule 3A

representatives. Rather, the Secretary of State had suggested that local

authorities should provide the extra resources necessary to supply

professional rule 3A representatives. The Secretary of State’s approach was,

Charles J said, ‘unfortunate’. The result was that that neither central nor local

government was offering to create a practically available solution to the

problem, to ensure that the applications could proceed with the court offering

the minimum procedural requirements required by art. 5.

28. Charles J considered that the primary responsibility to provide a resource that

enabled the court to make rule 3A appointments (or to otherwise meet the

minimum procedural requirements) fell on the secretary of state, either acting

alone or with local authorities. The Court joined the Ministry of Justice and

the Department of Health to the proceedings, and invited the parties to

identify solutions to the problem. The various applications before the court

(where there is no litigation friend or rule 3A representative) were stayed

pending a solution being found. All other similar cases (where there is no

litigation friend or rule 3A representative) will also need to be stayed pending

resolution of the problem.

Deprivation of liberty – 16 and 17 year olds

29. In Birmingham City Council v D (A child) Keehan J. held that the

confinement in a secure residential care home of a D, 16-year-old who lacked

capacity to consent to his confinement, was a deprivation of his liberty. The

more significant dispute for the court to determine was how that

authorisation could be authorised.12 The Local Authority contended that D’s

parents, in exercising parental responsibility, could authorise the deprivation

of liberty. Keehan J held that, although D’s parents had been entitled to

substitute consent for his confinement when D was under 16, the position was

different from the age of 16. From the age of 16 D was, the court held, entitled

to the full protection of art.5 ECHR and his parents’ consent would not be

sufficient to authorise the deprivation of liberty. Therefor the local authority

responsible for D’s care must obtain authorisation from the Court of

Protection.

12 [2016] EWCOP 8

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Available options and best interests

30. In MN (Adult) the Court of Appeal considered held that, when making

decisions on behalf of incapacitated adults, the Court of Protection is limited

to choosing between the available options and cannot compel a public

authority to agree to a care plan which it was unwilling to provide.13 The

appeal arose from a judgment of King J (as she then was) in respect of contact

between MN, an young incapacitated adult, and his parents. MN lived in a

care home. The body responsible for MN’s care, a NHS Clinical

Commissioning Group, had refused to pay for care which would be necessary

to allow MN to have contact with his parents at their house. As the care to

allow that contact to take place was not available, King J refused to declare

that the contact was in MN’s best interests.

31. The Court of Appeal held that King J had been correct. The Court of

Protection is confined to selecting between the options in fact available and

should not embark on a best interests analysis of hypothetical, unavailable

options. The function of the Court of Protection is to take, on behalf of adults

who lacked capacity, decisions they would have taken had they had capacity.

The Court has no more power than those adults would, if they had capacity,

to obtain services from a public body. Any claim for provision of public

funder or services should be made by judicial review. However, the Court of

Appeal emphasised that the Court of Protection can explore the public

authority's care plan and, where appropriate, require it to re-think. Rigorous

probing and persuasion are permissible, but pressure was not, and the court

could not compel a public authority to agree to a care plan which it was

unwilling to implement.

32. In North Yorkshire CC v MAG Cobb J allowed an appeal against DJ

Glentworth’s refusal to authorise P’s deprivation of liberty in his home. The

District Judge had held that the conditions of P’s accommodation were so

poor as to be unlawful, and so refused to authorise the deprivation of liberty

which arose from P’s care package.14 Cobb J held that although the conditions

of P’s accommodation were unsatisfactory it was in his best interests to be

deprived of his liberty there because there was in fact nothing else available

offering less restriction. He stressed that the analysis had to be twofold: First,

whether it was in P’s best interests to live at the property. The court noted

that not only was nothing else available offering less restriction but also no

one had disagreed that it was in P's best interests to live at the property for

the time being. The deprivation was therefore a necessary consequence of the

13 [2015] EWCA Civ 411 14 [2016] EWCOP 5

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least restrictive available option which best promoted P's needs. Second, it

was necessary to consider whether the accommodation provided was so

unsuitable as to be unlawfully provided, breaching P’s Convention rights.

Cobb J held that neither P's property nor the manner in which his care

package was delivered was so unsuitable as to be unlawful.

33. Cobb J also emphasised that the Court of Protection’s role is to take, on

behalf of those who lack capacity, the decisions that they would take

themselves (see judgment of the Court of Appeal in MN above). P would

not have been able to achieve what the District Judge directed the local

authority to do (secure alterative accommodation), in the absence of a

public law remedy. The course taken by the District Judge, withholding

authorisation of a deprivation of liberty to pressure the Local Authority to

provide a particular service, was, Cobb J held, inappropriate.

Deprivation of liberty and inquests

34. In R (LF) v Senior Coroner for Inner London the Divisional Court rejected an

argument that a learning disabled woman who died in hospital, while on a

ventilator, was deprived of her liberty (applying the Cheshire West test) and

so was in ‘state detention’ for the purposes of the Coroners and Justice Act

2009, such that a jury inquest was required.15 The deceased, Maria, was not

subject to detention under the Mental Health Act, or an authorisation under

the DOLS scheme at the time of her death. However, it was argued that Maria

was deprived of her liberty (applying the Cheshire West test) and that she

was therefore in ‘state detention’ for the purposes of the 2009 Act.

35. Gross LJ observed that a mechanistic application of Cheshire West to patients

in a number of hospital settings including an ICU would have significant

practical consequences, in that the “acid test” (on a literal application) is

capable of encompassing all such patients, regardless of any prior mental

incapacity, provided only they were not in a position to give consent to the

treatment or stage of treatment in question. Both Gross LJ and Charles J held

that the Coroner had not erred in deciding that Maria was not in ‘state

detention’ at the time of her death. Gross LJ observed that ‘state detention’ and

‘deprivation of liberty’, as defined in Cheshire West, might have the same

meaning. However, is required, the court said, to ensure coherence between

Art. 5 jurisprudence and the 2009 Act was an ‘intense focus on context and on

the “concrete situation”. Gross LJ concluded that the Coroner’s decision, that

15 [2015] EWHC 2990

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Maria was not in state detention, had not involved a misdirection of law or

been unreasonable. Gross LJ said:

the reality was that Maria remained in the ICU, not because she had been

detained or deprived of her liberty but because for pressing medical reasons

and treatment she was unable to be elsewhere. There is no evidence whatever

of a decision by the hospital other than to admit Maria to the ICU and to

attempt life-saving treatment.

36. The relevance of that to the analysis might be questionable given that in

Cheshire West the Supreme Court considered the motive for any deprivation

of liberty to be irrelevant to the analysis of whether there was such a

deprivation.

37. Charles J reached the same conclusion as Gross LJ, but by a slightly different

route – which focussed on the terms of the 2009 Act. There was disagreement

about the relevance of a DOLS authorisation. Gross LJ considered that the

existence of an authorisation might tend to show that there was compulsory

detention, while Charles J said it would be surprising if Parliament intended

that the death of every patient subject to a DOLS should be subject

investigated by an inquest with a jury.

Costs in the Court of Protection

38. In Somerset County Council v MK the Court of Protection departed from the

general rule as to costs in welfare cases (no order), and ordered that the Local

Authority pay the costs of the other parties to its application.16 The Court also

ordered that costs be paid on the indemnity basis.

39. The proceedings arose from the Local Authority’s action in removing MK

from her family, after concerns had been raised about her welfare. The Local

Authority issued the proceedings six months after MK was removed from her

family and after her mother had made it clear that she wanted her returned.

At that time, the Local Authority were arguing that there should be no return

to the family. That position was based in part on MK having sustained

bruising. However, the Court concluded that the Local Authority’s

investigation of the bruising was deficient, describing the investigation as

‘bungled’. There was evidence of MK hitting herself and others, and falling to

the floor before the bruising appeared. However, that information was not

provided to the doctor who examined MK’s bruising. The doctor’s

examination, and her opinions as to causation, had been relied on by the

Local Authority in refusing a return to the family.

16 [2015] EWCOP B1

16

40. The Judge found that ‘a competently conducted investigation would have swiftly

come to the conclusion that no or no sufficient evidence existed to be able to conclude

that [MK’s] safety was at risk by returning her home. This conclusion should have

been reached within a week or so after the family asked for her back’. Instead, the

matter proceeded and the Local Authority only changed its position shortly

before a 10 day fact-finding hearing and the Local Authority failed to prove

almost all of the findings of fact it had sought. The Court concluded that there

had been a ‘significant degree of unreasonableness both in the Local

Authority's approach to the substantive and procedural issues in the case.’ In

those circumstances, the Court held that indemnity costs was the appropriate

order.

P’s wishes and feelings in the best interests analysis

41. The judgment of Peter Jackson J in Wye Valley NHS Trust v Mr B emphasised

the importance of P’s wishes and feelings in the best interests analysis. P was

a 73 year old with a long term mental illness.17 His physical health had

deteriorated and he had developed a severe ulcer on his foot. He was advised

to have the foot amputated to avoid the risk of a severe infection which would

kill him. P lacked capacity to decide whether to have the operation. The court

had to decide whether it in was P’s best interests to have the operation and, in

deciding that matter, the court consider the weight to be placed on P’s wishes

and feelings and his religious beliefs.

42. The learned Judge said that:

once incapacity is established so that a best interests decision must be made,

there is no theoretical limit to the weight or lack of weight that should be given

to the person’s wishes and feelings, beliefs and values. In some cases, the

conclusion will be that little weight or no weight can be given; in others, very

significant weight will be due.”

The Judge continued:

This is not an academic issue, but a necessary protection for the rights of

people with disabilities. As the Act and the European Convention make clear,

a conclusion that a person lacks decision-making capacity is not an "off-

switch" for his rights and freedoms. To state the obvious, the wishes and

feelings, beliefs and values of people with a mental disability are as important

to them as they are to anyone else, and may even be more important. It would

therefore be wrong in principle to apply any automatic discount to their point

of view.’

17 [2015] EWCOP 60

17

43. The Judge concluded that it was not in P’s best interests to have the operation,

stating:

I am quite sure that it would not be in Mr B's best interests to take away his

little remaining independence and dignity in order to replace it with a future

for which he understandably has no appetite and which could only be achieved

after a traumatic and uncertain struggle that he and no one else would have to

endure. There is a difference between fighting on someone's behalf and just

fighting them. Enforcing treatment in this case would surely be the latter.

Court of Protection – Case Management Pilot

44. The Court of Protection has published a draft Practice Direction for a case

management pilot, which is due to start in June 2016. The pilot scheme will

involve three case management pathways for CoP proceedings: (i) a Property

and Affairs pathway, (ii) a Health and Welfare pathway, and (iii) a hybrid

pathway for cases that have elements of both Property and Health. The pilot

will not apply to DOLS cases (both ‘Re X’ applications and challenged under

s. 21A). The draft pilot Practice Direction will place an obligation on

applicants to provide more analysis of issues at the start of a case, allowing

for more robust case management decisions to be taken at the outset. It is also

designed to encourage early resolution of cases, to reduce the number and

length of hearings required in contested cases and to promote judicial

continuity. The Practice Direction is only in draft, and so is subject to change.

The pilot is expected to run for up to 12 months.

EDUCATION

Student loans

45. In R (Nyoni) v Secretary of State for Business Innovation and Skills the

administrative court considered a challenge to the interim policy for

determining student loan applications for those not settled in the U.K.18 The

interim policy, introduced in the wake of the decision in R (Tigere) v

Secretary of State for Business Innovation and Skills provided that

applications would be considered against criteria which included the age of

the applicant, the duration of residence in the U.K, and the proportion of total

life spent in the U.K. 19 Although the Claimant’s circumstances were very

similar to those of the applicant in Tigere, the court upheld the decision (made

18 [2016] E.L.R. 88 19 [2015] UKSC 57

18

in line with the interim policy) not provide her with a student loan. Although

poorly drafted, the interim policy was lawful and binding as regards the

circumstances of the applicant.

Religious education

46. R (Fox) v Secretary of State for Education20 concerned a judicial review

brought by three pupils and their parents of the new curriculum for GCSE

Religious Studies due to be introduced in 2016. The claimants held no

religious views and argued that the new syllabus was skewed too heavily in

favour of the teaching of religion and the principles of those religions. Warby

J agreed that this syllabus unlawfully prioritised the teaching of religious

views over non-religious views because it allowed for a circumstance in

which the study of non-religious beliefs could be wholly excluded whilst

purporting to fulfil the entirety of the statutory requirements for religious

education.

Industrial action

47. On 14 March 2016, Kerr J gave judgment in a matter thus far unreported

(Secretary of State for Education v National Union of Teachers) regarding

proposed industrial action by sixth-form college teachers. The Secretary of

State applied for an interim declaration that the strike action was unlawful.

The case generated an important procedural issue as regards judicial review

more generally. This is addressed elsewhere in this talk. The court concluded,

however, that the strike was lawful and rejected the Secretary of State’s

assertion that the predominant purpose of the strike was political. The Court

concluded that the strike had been called with a view to protecting jobs by

attempting to shore up funding for sixth-form colleges. This was a legitimate

purpose and so the challenge failed.

Challenging behavior

48. In R (HA) v Hampstead School Governors the Claimant sought judicial

review of a decision by Hampstead School to transfer him to a college off site.

The transfer was made because it was deemed necessary to improve the

Claimant’s behavior. 21 It meant, however, that the Claimant was unable to

20 [2016] E.L.R. 61 21 [2016] EWHC 278 (Admin)

19

pursue the full range of GCSE courses which would have been available to

him at the school. The claim succeeded. The school had failed to formulate

and communicate the reasons and objectives for its decision as soon as

practicable after the decision was made and to keep the off-site placement

under review as required by the Education (Educational Provision for

Improving Behavior) Regulations 2010.

School closure – consultation

49. R (Edwards) v Flintshire CC concerned a judicial review brought by a parent

regarding a LEA’s proposal to change the age range of a Welsh high school

and subsequently close it. 22 The principal ground upon which the claim was

brought was that the local authority had failed to comply with its duties

under the Code on School Organisation, published by the Welsh Ministers

under section 38(1) of the School Standards and Organisation (Wales) Act

2013. Following consultation, the authority initially contemplated relocating

the school and that proposal was agreed by the Ministers. This idea was

subsequently abandoned by the authority and it was decided instead to close

the school. The Claimant argued that the authority had failed to comply with

its duties by failing to consult another local high school. Hickinbottom J

refused permission. He concluded that the duty to consult left inherent in it a

considerable scope for the authority to determine how that consultation was

to take place under the terms of the Code. The manner in which the authority

exercised that discretion could not be said to be irrational and so the

consultation was consistent with the duties under the Code.

Special educational needs – appropriate school

50. In EC v North East Lincolnshire Local Authority the Upper Tribunal gave

judgment in a case where the parents of an autistic child had appealed a FTT

decision confirming the school named by the LEA in the child’s statement.23

The Claimants sought to send their child to an alternative school which was

more expensive than the one named in the statement. The Upper Tribunal

confirmed that it was too simplistic to regard as determinative the fact that

the parents’ choice was more expensive. It was necessary to undertake a more

detailed comparison of the impact of the various schools on the child before

coming to a conclusion as to whether the expenditure of public money was

reasonable under s 9 of the Education Act 1996.

22 [2016] EWHC 459 23 [2015] UKUT 648 (AAC)

20

Residential college placements

51. In R (C) v Westminster CC the administrative court held that a local

authority’s decision to cease funding a residential college placement for an

individual with special educational needs breached his substantive legitimate

expectations. 24 The Claimant had a statement of special educational needs

from the local authority on the basis of social communication issues and an

autistic spectrum disorder. He was given a placement at a residential college

for a three-year placement. After two years, the Claimant had completed the

course and so the college applied for funding for a further two year course.

The authority denied funding for the further course and stopped the funding

for the current placement. The decision left open the possibility that the

authority could have justified the frustration of the legitimate expectation,

however, the authority adduced no evidence by which it could do so and

instead sought to deny the existence of the legitimate expectation.

Accordingly, the application was granted.

Injunctions against parents – harassment

52. Although a decision only of the County Court, Lawrence Sheriff School v

Matalia is of interest insofar as it demonstrates a case in which a school

successfully obtained an injunction against a parent who had been harassing

its staff and governors.25 The pupil concerned had been accused of sexual

misconduct by two pupils. The pupil’s father was convinced that the

allegations were unfounded and so embarked upon a two year campaign to

clear his name. This campaign included threatening one of the 13-year-old

complainants with criminal proceedings and sending him a pre-action

protocol letter for defamation; making intemperate demands as to how the

school should communicate with the complainants' parents; making strident

allegations of racial discrimination against the school; restricting his meeting

availability to the Christmas period three years ahead; researching the school

staff, local authority officer and the judge involved in the case and including

irrelevant personal information in his correspondence with them to unsettle

and discomfort them; denigrating the abilities of the head teacher, assistant

head teacher, chair of governors and the school as an institution in an attempt

to bring about disciplinary proceedings; being physically and verbally

abusive and personally insulting during meetings; following up on the

24 unreported 25 unreported

21

meetings with lengthy and aggressively-worded emails; publishing deeply

wounding allegations against school staff on various websites, including one

which he had acquired with a domain name suggesting an official connection

with the school. The court concluded that this extensive course of conduct

was intended to and did in fact result in considerable alarm and distress. The

school was, therefore, entitled to injunctive relief.

First tier tribunals – pupil participation

53. In Hammersmith and Fulham LBC v L the Upper Tribunal held that where a

child had expressed a wish to participate in the hearing at the FTT, it was

potentially an error of law for the tribunal to list the matter at a venue which

prevented him from participating. 26 This arose in the context of appeals

against FTT decisions to uphold the schools named in the local authority

statements for children with special educational needs. The Upper Tribunal

found that where a child had expressed a wish to attend the hearing and

address the tribunal, the tribunal needed good reason to refuse the request.

This went as far as potentially meaning that a decision to list the case in a

venue which precluded the child’s participation was an error of law.

Expert evidence – special educational needs

54. In Royal Borough of Kensington and Chelsea v CD the Upper Tribunal

offered guidance as to the proper approach to expert evidence before First

Tier Special Educational Needs and Disability Tribunals. 27 The starting point

was that expert evidence should be restricted to that which was reasonably

required to resolve the appeal. If a party sought to rely on expert evidence,

then he should tell the other party as soon as possible. If the issue fell within a

substantially established area of knowledge, then the evidence should usually

be provided by a written report of a single expert jointly instructed by the

parties. The parties’ attendance forms had an important role to play as

regards the case management issues which might arise as regards expert

evidence and the tribunal should base directions on them. The parties would

have to make out a strong case either for relying on evidence from an expert

who had not been jointly instructed or for requiring an expert to give oral

evidence. Moreover, in giving any case-management directions relating to

expert evidence, the tribunal judge should identify precisely the issues which

the experts were to address.

26 [2015] E.L.R. 528 27 [2015] E.L.R. 493

22

55. Where a tribunal is faced with conflicting expert reports and no experts

present, it should establish at the outset of the hearing precisely which parts

of the reports were agreed and, if there were areas of dispute, how the parties

were inviting the tribunal to resolve the disputed matters (whether by calling

the experts to give oral evidence or by asking the tribunal to do the best it

could on the written evidence). The parties' submissions/concessions could be

recorded in writing by the tribunal and, if there were any issues, they could

be adjudicated on and, again, recorded in writing.

School transport

56. In R(Diocese of Menevia) v Swansea City and County Council Wynn

Williams J held that, although a local education authority's change in policy

concerning free transport for pupils attending faith schools achieved a

legitimate aim, namely budget cuts, the effect was indirectly discriminatory

against black and minority ethnic children and therefore not proportionate.28

ENVIRONMENTAL AND PLANNING

Judicial Review

57. In R (Midcounties Co-Operative Ltd) v Forest of Dean District Council and

another29, planning permission for the development of an out-of-town-centre

retail store had been refused by the Secretary of State having acknowledged

the significant harm that the development would cause a vulnerable town

centre. The development had been challenged by a local supermarket owner.

Planning permission had been granted twice by the LPA and on both

occasions it was quashed on judicial review. The Forest of Dean District

Council’s planning committee prepared a report in relation to a further

planning application and again granted permission. The supermarket

challenged this determination on a number of grounds, submitting that the

LPA had failed to consider the true harm likely to be caused to the town

centre and that a report submitted to the council’s planning committee had

adopted an inconsistent approach to Section 106 contributions offered by the

developer.

58. The case is of interest because of obiter observations made in the postscript of

the judgment of Singh J (para 148 onwards) in which the court considered the

28 [2015] ELR 389 29 [2015] EWHC 1251 (Admin)

23

duties of an LPA in circumstances where it decides not to defend judicial

review proceedings. The unusual facts of this case focussed on the decision of

The Forest of Dean District Council not to concede the JR claim but, for

financial reasons, not to defend the proceedings, instead leaving an interested

party (the developer) to defend its position.

59. The Court observed, following the Court of Appeal decision in R v

Lancashire County Council, e p. Huddleston30, that “a public authority defendant

in judicial review proceedings has a duty of candour and co-operation so as to assist

the court in understanding its decision-making process and deal with the issues fairly.

It should conduct the litigation with its cards face upwards. This is based on the

concept that it acts in the public interest, and not merely to protect a private,

commercial interest.”

60. The judge stated that if defendant public authority finds itself in the position

where it cannot defend its own decision in JR proceedings because of

impecuniosity, and in particular where it cannot file a skeleton argument or

make oral submissions at a substantive hearing, it should at least consider the

following:

“a. whether it has complied with its duty of candour and co-operation, by

disclosing all relevant documents;

b. whether its duty of candour and co-operation requires it to file a witness

statement to assist the court in understanding its decision-making process and

dealing with the claim for judicial review fairly;

c. whether it should file an acknowledgement of service, with summary grounds of

resistance, even if only in outline form, so that at least the gist of why it maintains

that its decision is correct in law is explained;

d. whether a representative of the authority (not necessarily a lawyer) should be

present in court at any hearing, so that the authority is in a position to know what

is going on and it can rapidly take steps to deal with points which may arise

unexpectedly or answer judicial questions if invited to do so.” (Para 151).

Procedure

30 [1986] 2 All ER 941

24

61. In Ecotricity (Next Generation) Ltd v Secretary of State for Communities and

Local Government and another 31 the Court of Appeal considered the question

of whether the Secretary of State must perform a site visit in order to

adequately assess the visual impact of wind turbines. The Secretary of State

had refused Ecotricity’s appeal which had followed a prior refusal by the LPA

of planning permission for four wind turbines. On appeal, the Inspector,

having undertaken site visits and viewed photomontages of the proposal,

found that the landscape would be able to absorb the wind turbines and

recommended granting the permission. The Secretary of State, who did not

visit the site, disagreed with the Inspector's findings on visual impact,

concluding that there would be conflict with local Core Strategy Policies D4

and D14 arising from significant adverse landscape and visual impacts within

2 km of the proposed turbines, and refused permission on that basis.

Ecotricity sought to have the Secretary of State’s decision quashed pursuant to

Section 288 Town and Country Planning Act 1990, but the appeal was

dismissed. This dismissal was subsequently challenged on the ground that

the judge was wrong to find that the Secretary of State was not required to

undertake a site visit before disagreeing with the Inspector’s opinion on

visual impact.

62. The Court of Appeal dismissed Ecotricity’s appeal. In terms of the Secretary

of State’s analysis, the Court held that he fact that he disagreed with the

Inspector did not mean that he had misinterpreted Policy D4 or misapplied

the test for significant adverse impact. He had applied the same policy as the

Inspector, but reached a different conclusion on impact within the 2km zone.

That was a matter of planning judgment reserved for the Secretary of State,

and the Court acknowledged that his decision letter was intelligible and

adequately reasoned (Para. 31).

63. More interestingly, the Court followed a consistent line of authority (most

recently Wind Prospect Developments Ltd v Secretary of State for Communities and

Local Government32) stating at paragraphs 34-35 that:

34 There is no authority to gainsay the proposition which has been consistently

applied in all of those authorities that it is unreal to suggest that the Secretary of

State has to personally carry out a site visit before being able to differ from one of

his Inspectors on a planning judgment as to the visual impact of a proposed

development […]

31 [2015] EWCA Civ 657 32 [2014] EWHC 4041 (Admin)

25

35 The test posed in all of those cases (which I would endorse) is whether the

Secretary of State had sufficient material before him on which he was reasonably

able to make a judgement on the issue of visual impact. In the present case there

was ample material on which the Secretary of State was able to make such a

judgement.”

64. In terms of the evidence, the Secretary of State had had sight of

photomontages showing the proposed turbines from six viewpoints.

Although the Inspector had observed that these understated the impact of the

scheme, he also said that they constituted a reasonable basis for forming an

opinion of the turbines’ impact (Para. 35). Given that it was difficult to see

what advantage would be gained by sending another officer to view the site,

the Court could find no reason to justify departure from the normal rule.

65. In R (Roskilly) v Cornwall Council and others, the Court considered the

lawfulness of the grant of planning permission for a development within

Schedule 2, Town and Country Planning (Environmental Impact Assessment)

Regulations 2011 (the “EIA Regulations”) when the Secretary of State issues a

subsequent screening direction and an environmental impact assessment

(“EIA”) has not been undertaken.33 The EIA Regulations require local

planning authorities to provide a screening opinion where development

specified in Schedule 2 is proposed in certain sensitive areas, including areas

of outstanding natural beauty (AONB). This opinion determines whether the

applicant needs to complete an EIA – it will be required where Schedule 2

development is likely to have significant effects on the environment (by virtue

of factors relating to the proposed development’s location, nature or size).

66. In the instant case, Tidal Lagoon Swansea Bay plc (TLSB) applied to Cornwall

County Council (“CCC”) for permission to develop Dean’s Quarry, which is

situated in an AONB. Roskilly objected to the application, including on the

basis that it constituted Schedule 2 development in a sensitive development

and required an EIA. The screening opinion issued by CCC determined that

the proposal would not have a significant environmental impact and

therefore an EIA was not required. On the day before CCC granted planning

permission, Roskilly requested a screening direction from the Secretary of

State, as any person is entitled to do under the EIA Regulations. CCC had

been aware that the request had been made at the point of granting

permission. The Secretary of State subsequently published his screening

direction under Regulation 4(3) stating that the proposal would be likely to

33 [2015] EWHC 3711 (Admin)

26

have significant effects on the environment and that the risk of significant

harm justified an environmental impact assessment.

67. Having considered Roskilly’s application for judicial review of CCC’s

decision to grant planning permission, the Court held that the screening

direction issued by the Secretary of State is “conclusive” in determining

whether an EIA is required, and as a result the permission was rendered

unlawful. The Court observed that “the 2011 Regulations do not suggest that the

question of consideration of whether or not a development is environmental impact

assessment development by the Secretary of State, and the Secretary of State's

jurisdiction under Regulation 4(3) to direct that the development is environmental

impact assessment development, comes to an end on the grant of planning

permission” (para. 38).

68. Mr Justice Dove also observed in relation to circumstances where permission

is granted when an LPA is aware that a screening request has been submitted

to the Secretary of State, that:

whilst the local authority are not precluded from granting permission, what

they do in granting permission is take the risk that the Secretary of State will

subsequently determine in the light of the application for a screening direction

before him that the development is environmental impact assessment

development thereby imperilling their decision by contamination with

illegality.” (para. 38)

69. The Court confirmed that court confirmed that the wording of Article 2(1) of

the EIA Directive 2011 supported this approach.

Statutory Interpretation

70. In R (Williams) v Secretary of State for Energy and Climate Change, the High

Court considered whether it had jurisdiction to hear a claim under Section 118

Planning Act 2008 for judicial review of a development consent order where

the claim had been issued one day after the expiry of the statutory time

limit.34 The order in question sanctioned the development of a wind farm near

Mr Williams’s home. Section 118 (as it was prior to its amendment, which

took effect from 13 April 2015) allows a development consent order to be

challenged by judicial review:

34 [2015] EWHC 1202 (Admin)

27

(1) A court may entertain proceedings for questioning an order granting

development consent only if (a) the proceedings are brought by a claim for

judicial review and (b) the claim form is filed during the period of six weeks

beginning with: (i) the day on which the order is published..."

Note that the method for publication of an order is not prescribed by section

118 of the PA 2008.

71. The order had been uploaded to the Planning Inspectorate’s website on 12th

September 2014 and on the same day a letter was posted to Mr Williams and

an email sent to him containing a hyperlink to the Inspectorate’s decision. The

letter specified a deadline for a claim by judicial review “during the period of 6

weeks from the date on which the order is published”. The order was placed on the

legislation.gov.uk website on 15th September 2015, with notices published in

the local paper and London Gazette on 25th September 2015. The claim was

lodged with the court on 24th October 2014. Mr Williams argued that although

the Order had been put on the Planning Inspectorate's website on 12

September 2014, it had not been published for the purposes of section 118

until a later date. He did not specify a particular date, as any date after 12

September 2014 would have meant that his claim was within the six-week

time-limit.

72. The Secretary of State, relying on R ( Blue Green London Plan) v Secretary of

State for the Environment, Food and Rural Affairs, submitted that “beginning

with” in Section 118 included the day on which the order was published, and

that the court had no power to extend time.35 The Court agreed. Following R

(Shah) v Immigration Appeal Tribunal, it held that the provision in the

Planning Act 2008 provided a legislative bar on the court’s discretion

otherwise conferred by CPR 11(1).36 The time limit was therefore six weeks

and the court had no jurisdiction to extend time, even by one day.

73. Agreeing with the Secretary of State, the Court found that the period of

challenge included the day on which the order and reasons were published,

following the decision of Ouseley J in the Thames Tideway Tunnel case.

Publication was held to have taken place on 12th September, as website

publication (together with the decision letter and report circulation and

notification of interested parties by email) was sufficient to constitute initial

“publication” – i.e. the date when such information “is put into the public

domain” (Para. 44). That local press and London Gazette publication took

place after this date did not alter that initial publication date.

35 [2015] EWHC 495 (Admin) 36 [2004] EWCA Civ 1665

28

74. Practitioners now benefit from greater certainty on this point as Section 118

was amended with effect from 13th April 2015 to extend the period for making

a claim for judicial review by one day. The six-week period now runs from

the day after an order is published.

75. In BPP (Farringdon Road) Ltd v Crossrail Ltd, the Upper Tribunal (Lands

Chamber) considered the question of when a reference could be made to the

tribunal to assess compensation arising out of temporary relocation because

of Crossrail works.37 Paragraph 1(4) of Schedule 5 to the Crossrail Act 2008

provides that where Crossrail takes temporary possession of property in

connection with the Crossrail project, it must:

pay compensation to the owners and occupiers of land of which possession is

taken under this paragraph for any loss which they may suffer by reason of the

exercise in relation to the land of the power or powers conferred by this

paragraph.

76. Crossrail argued that the proceedings should be struck out because they were

premature and had no reasonable prospect of success since – at that stage –

the claimant had no cause of action. Crossrail further submitted that there

could be no claim for loss arising from a period of temporary possession until

that period had ended (i.e in 2018). Until then, it was not possible to know

whether a loss would be sustained because of the need to give credit for any

change in the building's value while redevelopment was prevented by the

taking of temporary possession. As no loss could be pleaded, no cause of

action could exist, and any attempt to calculate loss up to 2018 in advance of

that date would invariably be speculative.

77. The Upper Tribunal refused the application to strike out the reference for

compensation, holding that it was neither premature nor lacking a reasonable

prospect of success. It found that under Sch. 5, para 1(4) the local authority

was liable to pay compensation to the owners and occupiers of land of which

possession was taken “for any loss they may suffer” by reason of that exercise.

The statutory language was prospective and did not support the submission

that all events giving rise to liability for compensation must have occurred

prior to bringing proceedings. The Upper Tribunal also observed that even if

Crossrail had been correct that para. 1(4) prevented it from assessing loss

prospectively, a significant element of the claim at hand was in respect of

costs which had already been incurred, and for losses which were continuing

37 [2015] UKUT 195 (LC)

29

at a known rate. There was no element of speculation in the quantification of

those sums.

78. In Grafton Group (UK) Plc v Secretary of State for Transport, the High court

considered the meaning of “quashed” for the purposes of Section 24

Acquisition of Land Act 1981 (ALA 1981).38

79. Section 23(1) of the ALA 1981 allows "any person aggrieved" to question the

validity of a CPO in the High Court on the grounds that there is no power in

the enabling act or the ALA 1981 to authorise the CPO. If the challenge is

successful, the court may "quash the compulsory purchase order or any provision

contained therein" (section 24, ALA 1981).

80. The Port of London Authority (PLA) and the Secretary of State argued that

the term referred to quashing only the confirmation of the CPO, i.e. the PLA

would retain authority to make the CPO, it was merely the way in which it

had been confirmed that had been challenged. The claimants submitted that

the statutory provision required the CPO to be quashed both as made and

confirmed. The latter interpretation would require the PLA to restart the

process and make a new CPO (involving, potentially, a new inquiry process if

objections to the proposed CPO were received).

81. Ouseley J held that the meaning of "quash the compulsory purchase order" in

Section 24 meant to quash the CPO as made and confirmed. He stated the

following at paragraph 11 of his judgment:

11 […] the language of the statute must be intended to cover both the

situations where there has been a flaw in the making of the compulsory

purchase order so it is the made compulsory purchase order which is itself at

issue — perhaps, for example because it is ultra vires, or there has been some

procedural failure in its making — as well as the situation where there is a

failure in the confirmation process. It seems to me that the language which

Parliament has used is not apt to draw the necessary distinctions between the

two, even though one can see ways in which it all might be resolved in later

quashing the confirmation process.

82. As a result, the CPO had to be quashed in its entirety. In Paragraph 10 of the

decision, however, the judge recognised that "something less" than quashing

the made CPO would have sufficed in these circumstances had a clear

mechanism been available to the court.

38 [2015] EWHC 1889 (Admin)

30

83. In Distinctive Properties (Ascot) Ltd v Secretary of State for Communities

and Local Government39, The Court of Appeal approved the High Court's

decision in Palm Developments Ltd v Secretary of State for Communities and

Local Government40, regarding the meaning of "tree" for the purposes of tree

preservation orders (TPOs) and tree replacement notices under the Town and

Country Planning Act 1990. At paragraph 1 of that decision, Cranston J noted:

[With TPOs] there are no limitations in terms of size for what is to be treated

as a tree. In other words, saplings are trees. Moreover, a tree preservation

order for a woodland extends to all trees in the woodland, even if not in

existence at the time the order is made."

84. The landowner had appealed against a tree replacement notice served upon it

by the second respondent LPA. The notice alleged that the landowner had

cleared an area of woodland protected by a TPO. The notice referred to the

landowner's duty under Section 206 Town and Country Planning Act 1990 to

plant a tree for each one removed, and ordered the planting of 1,280 saplings.

The landowner appealed, submitting that the presence of visible tree stumps

was evidence that only 27 trees had been removed. An inspector dismissed

the appeal on the ground that the presence of stumps was insufficient

evidence because the clearance had also removed saplings and "other

potential trees" which might germinate from seeds. The landowner's appeal to

the High Court was dismissed. The judge recorded the parties' agreement that

the term "tree" included "saplings" but not "seeds" or "seedlings", and that the

planning inspector had been entitled to rely on that uncontroversial position.

85. The Court of Appeal, dismissing the appeal, held that the Inspector’s decision

had been lawful, subject to the arguments relating to the definition of "tree".

The Inspector's decision letter referred to "saplings or other potential trees" and

the appellant had submitted that a "potential" tree is not a tree. The Court of

Appeal dismissed this argument on the basis that decision letters must be

read without excessive legalism (para. 21), citing Clarke Homes v Secretary of

State41, and recognising that they are addressed to parties who are familiar

with the issues and evidence (South Bucks District Council v Porter (FC))42

(para. 20). The appellant also submitted that the Inspector treated the lost

woodland as a single entity and not as a number of trees. The Court of Appeal

also dismissed this argument, noting that a TRN can only seek the replanting

39 [2015] EWCA Civ 1250 40 [2009] EWHC 220 (Admin) 41 (1993) 66 P&CR 263 42 [2004] UKHL 33

31

of trees (and not shrubs, fungi or wild flowers) and only the same number of

trees as previously existed. The Court of Appeal did not see any legal flaw in

the inspector referring to the "reinstatement of woodland", as that was the

purpose of the TRN.

86. This case is helpful because it provides clarity on the definition of “tree” in

the context of TPOs (see para. 37 onwards). The Court of Appeal noted that

no authorities have followed Lord Denning's suggestion that in woodland a

tree "ought to be something over seven or eight inches in diameter" (Kent County

Council v Batchelor43, and that there is no definition of “tree” in the Town and

Country Planning Act 1990. The Town and Country Planning (Tree

Preservation) (England) Regulations 2012 refers to trees "whose diameter does

not exceed 75 millimetres". The Court applied the Palm Developments

interpretation of the word, including the part of the decision of Cranston J in

which he held that "saplings of whatever size are protected by a woodland tree

preservation order". It was not in dispute that a seed was not a "tree". In relation

to “seedlings”, the Court also applied Palm Developments: a tree is a "tree" at

all stages of its life, save for when it is a mere seed. The Court of Appeal

therefore held that a seedling would also be a "tree" for the purposes of the

TCPA 1990, "certainly once it was capable of being identified as of a species which

normally takes the form of a tree" (Para. 42).

87. In Royal Borough of Kensington and Chelsea v Secretary of State for

Communities and Local Government44, the High Court ruled on the

interpretation of Part 1, class A of Sch.2 Town and Country Planning Act

(General Permitted Development) Order 1995 (GPDO 1995, which contains an

exclusion under which development of a dwelling house would not be

permitted if “the enlarged part of the dwelling house would have more than one

storey”. The LPA applied to quash decisions of the respondent Secretary of

State allowing two appeals against the refusal of certificates of lawful use or

development in respect of basement extensions beneath residential properties.

88. Part 1, class A of Schedule 2 to the GPDO 1995 provided that planning

permission was granted for "the enlargement, improvement or other alteration of a

dwellinghouse". This permitted development right is subject to a number of

exclusions set out in paragraph A.1(a) to (i).

43 (1976) 33 P&CR 185 44 [2015] EWHC 2458 (Admin)

32

89. The exclusion provided in paragraph A.1(f) is relevant to the instant case in

that it expressly excludes development where the enlarged part of the

dwelling house would have more than one storey and either: (i) extend

beyond the rear wall of the original dwelling house by more than three metres

(paragraph A.1(f)(i)); or (ii) be within seven metres of any boundary of the

curtilage of the dwelling house opposite the rear wall of the dwelling house

(paragraph A.1(f)(ii)). Note that there is no material difference between the

GPDO 1995 and GPDO 2015 in relation to this wording.

90. Note that there is no provision in either the GPDO 1995 or GPDO 2015

relating specifically to basement developments. However, basement

developments are considered to benefit from permitted development rights

under Part 1, class A, Schedule 2 (they are considered to be works for the

"enlargement, improvement or other alteration of a dwellinghouse").

91. The Royal Borough of Kensington and Chelsea (RBKC) challenged two

inspector decisions granting certificates of lawfulness of proposed use or

development for the basement developments.

92. Both proposals involved the addition of a single storey basement, with neither

extending beyond the current footprint of the dwelling house. RBKC had

refused the certificates on the basis that the enlarged part of the dwelling

house would have been more than one story and be within seven meters of

the boundary. The Court was therefore required to consider: (i) whether the

reference to “The enlarged part of the dwelling house would have more than one

storey" in paragraph A.1(f) referred to the existing storeys in the dwelling

house to which the basement was added, or whether it referred only to the

single storey basement; and (ii) whether "The enlarged part of the dwelling house

would be within seven metres of any boundary of the curtilage of the dwelling house

opposite the rear wall of the dwelling house" referred to the dwelling house being

developed or to another dwelling house opposite the dwelling house being

developed.

93. Refusing the application, the Court found that there was a clear distinction

between “the enlarged part of the dwelling house” and the “original dwelling

house”. The “enlarged part” is referring to the permitted development under

the GPDO 1995, while the “original dwelling house” is the dwelling house as

construed in accordance with Art.1 GPDO 1995. Accordingly, the enlarged

parts of the dwelling houses are therefore the basements themselves which

are single storey. The result is that the proposed extensions were not found to

contravene Para. A.1(f).

33

94. On the second point, the Court held that the starting point is the ordinary

meaning of the words. There is no distinction between "dwelling house" used in

paragraph A.1(f)(ii) when referring to the curtilage, or "dwelling house" when

reference is made to opposite the rear wall. Had the draftsman intended to

refer to another dwelling house other than the one subject of the application,

he could have said so. There is nothing in the plain and ordinary use of the

words to suggest any reference to two separate dwelling houses. The Court

found that that the seven metre distance is to be measured from the dwelling

house being extended. In this case, as both of the development proposals

were for single storey extension, para. A.1(f)(ii) was not applicable (it is only

relevant where the extension proposed is more than one storey).

95. The Court of Appeal case of Suffolk Coastal District Council v Hopkins

Homes Ltd45 related to two conjoined appeals concerning the meaning and

effect of government policy in paragraph 49 of the National Planning Policy

Framework (NPPF). The case is significant in its consideration of two points:

(i) the meaning of the requirement in Paragraph 49 stating that housing

applications should be considered in the context of the presumption in favour

of sustainable development and that "relevant policies for the supply of housing

should not be considered up-to-date if the local planning authority could not

demonstrate a five-year supply of deliverable housing sites"; and (ii) the way in

which that particular policy should be applied in the context of making

planning decisions.

96. Dismissing the first appeal and allowing the second, the Court observed that

its interpretation of Paragraph 49 had to be faithful to the words of the NPPF,

read in their full context and not in isolation from it. The broad context was

the Government's aim of providing the supply of housing to meet the needs

of present and future generations, reflected generally in the policies for

sustainable development, plan-making and decision taking. The more specific

context was set by the housing development policies in the paragraphs

immediately preceding and following Paragraph 49. Underlying them all was

the basic imperative of delivery (paras. 20-30).

97. The Court of Appeal held that the meaning of "[relevant] policies for the supply

of housing", construed objectively in their proper context, is "relevant policies

affecting the supply of housing" which reflects a "wider/comprehensive"

interpretation. It observed that a "relevant" policy is simply a policy relevant

to the planning application. A wider construction of the policy did not strain

the natural and ordinary meaning of the words.

45 [2016] EWCA Civ 168

34

98. The Court further held that the interpretation of the policy does not confine

the concept of "policies for the supply of housing" merely to policies in the

development plan that provide positively for the delivery of new housing in

terms of numbers and distribution or the allocation of sites. It recognises that

the concept extends to plan policies whose effect is to influence the supply of

housing land by restricting the locations where new housing may be

developed, including policies: for the green belt; for the general protection of

the countryside; for conserving the landscape of Areas of Outstanding

Natural Beauty (AONB) and National Parks; for the conservation of wildlife

or cultural heritage; and whose purpose is to protect the local environment in

one way or another by preventing or limiting development (para. 33).

99. As regards the application of the policy in paragraph 49 in the context of

planning decisions, the Court observed that the NPPF is a policy document

and should not be treated as if it had statutory force. That said, it is of course a

material consideration (section 70(2), Town and Country Planning Act 1990).

100. Policies in the NPPF, including those relating to the "presumption in

favour of sustainable development" do not modify the statutory framework

for the making of decisions on planning application. The policies operate

within that framework (para. 42 onwards).

101. The Court of Appeal decision provides the reminder that it is for the

decision maker to determine the weight to be given to NPPF policies insofar

as they are relevant to the proposal. The Court emphasised that the policies in

paragraphs 14 and 49 did not make "out-of-date" policies for the supply of

housing irrelevant in the determination of a planning application, nor did

they prescribe how much weight should be given to such policies in the

decision. It would be for the decision-maker to judge, in the circumstances of

the given case, how much weight should be applied to those policies. The

decision provides a reminder that the policies in paragraphs 14 and 49 were

not intended to punish an LPA when it failed to demonstrate the requisite

five-year supply of housing land. They were, however, clearly meant to be an

incentive (paras. 42-48 generally).

102. In Allensway Recycling Ltd and others v Environment Agency [2015]

EWCA Civ 1289, the Court of Appeal considered the entry and inspection of

residential premises by the Environment Agency in exercise of powers under

section 108(6) Environment Act 1995 and warrants issued under Schedule 18

of the same Act.

35

103. Section 108(6) makes specific provision in respect of entry to residential

premises. It provides that except in an emergency, in any case where it is

proposed to enter any premises used for residential purposes, any entry by

virtue of the section shall only be effected:

After the expiration of at least seven days' notice of the proposed entry

given to a person who appears to the authorised person in question to be

in occupation of the premises in question; and either

with the consent of a person who is in occupation of those premises; or

under the authority of a warrant by virtue of Schedule 18 to this Act.

104. Schedule 18 warrants may be granted in circumstances where a

magistrate is satisfied that there are reasonable grounds for a search of the

premises and that one of the conditions is specified on the application for that

warrant. The conditions are:

That the exercise of the power in relation to the premises has been refused.

That such a refusal is reasonably apprehended.

That the premises are unoccupied.

That the occupier is temporarily absent from the premises and the case is

one of urgency.

That an application for admission to the premises would defeat the object

of the proposed entry.

(Paragraph 2(2), Schedule 18.)

105. In the case, the EA applied to Leeds Magistrates’ Court for section 18

warrants pursuant to an application supported by information stating that the

cited premises included “residential property lived in by Martin Williamson”

and the “home address of Mr Allen Williamson” (para. 4). It alleged

confrontational behaviour by Mr Allen Williamson as a reason for seeking the

warrant, and suggested that evidence of unauthorised waste activities would

be removed or destroyed if a search was attempted without a warrant. The

magistrates issued the warrants and the EA enforced them. The appellants

applied and were refused permission for judicial review of the execution of

the warrants. The appeal was brought with permission granted by the judge

in the Administrative court.

106. The Court of Appeal did not agree that the construction determined by

the Administrative Court gave proper effect to the language of section 108(6)

36

or its relationship with Schedule 18. It held that Section 108(6) limits the

circumstances in which the power of entry may be exercised in relation to

residential premises. The construction of section 108(6), having regard to its

language and lay-out, including the linking "and" between paragraph (a) and

paragraph (b), is clear - in every case there must be at least seven days' notice

before entry may be effected, and entry may be effected after the expiry of the

notice period only with the consent of an occupier or under the authority of a

warrant. The Court also observed that:

Equally clear on the face of it is that the power of a justice of the peace to issue

a warrant under schedule 18 is supplemental to the powers conferred by

section 108 and does not alter the conditions subject to which the powers

under section 108 are exercisable. By section 108(14), schedule 18 has effect

“with respect to the powers of entry and related powers which are conferred by

this section”. Paragraph 2 of schedule 18 relates to the exercise of a “relevant

power”, which is defined in paragraph 1(1) of the schedule as “a power

conferred by section 108 of this Act, including a power exercisable by virtue of

a warrant under this Schedule”. By a warrant issued under paragraph 2, a

justice of the peace authorises an enforcing authority “to designate a person

who shall be authorised to exercise the power” in relation to the relevant

premises. Thus, it is section 108 which confers the power of entry and which

specifies the conditions subject to which it may be exercised, including the

circumstances in which it is exercisable by virtue of a warrant; whereas the

relevant function of schedule 18 is to specify the conditions that must be met

in order to obtain such a warrant. The judge rightly rejected the Agency's

contention that a warrant issued under schedule 18 confers a stand-alone

power of entry, free from the conditions laid down in section 108.” (Para. 19)

107. The decision confirms that it is Section 108 confers power of entry and

defines the context in which such powers are exercisable. The case provides a

restatement of the position expressed by Lord Diplock in R v Inland Revenue

Commissioners, ex p. Rossminster Ltd that when considering the statutory

powers to enter a man's home or office, "if the statutory words relied upon as

authorising the acts are ambiguous or obscure, a construction should be placed upon

them that is least restrictive of individual rights which would otherwise enjoy the

protection of the common law”. 46

HOUSING

46 [1980] AC 952

37

Allocation policy

108. In R(HA) v Ealing LBC Gross J held that A local authority's housing

allocations policy was unlawful where its requirement that a person had to

have lived in the local area for the previous five years to be eligible for social

housing excluded people who, under the s 166A(3) of the Housing Act 1996

had to be given "reasonable preference" when allocating housing.47 The

claimant had not been resident in the local authority's area for the previous

five years and, there being no exception for those in reasonable preference

categories under s.166A(3), had been automatically rejected. No consideration

had been given to the s.166A(3) criteria under the exceptionality provision,

nor could it have been under the local authority's policy. Although a

residency requirement was an entirely appropriate provision in relation to

admission on to a social housing list, it should not preclude the class of people

who fulfilled the reasonable preference criteria. The local authority's policy

did not provide for the giving of reasonable preference to prescribed

categories of persons as required under s.166A(3) of the Act; consequently,

the policy was unlawful.

Homelessness

109. In Nozemlesco v City of Westminster the Supreme Court gave

guidance on the extent to which a local housing authority could properly

discharge its duty under s 193(20 of the Housing Act 1996 by offering "out-of-

borough" accommodation, and on the policies that housing authorities ought

to have in place in respect of the procurement and allocation of temporary

accommodation for homeless applicants.48 Section 206 and s.208 of the 1996

Act and the Homelessness Code of Guidance for Local Authorities 2006

obliged local housing authorities to provide "in-borough" accommodation so

far as was reasonably practicable. "Reasonable practicability" suggested a

stronger duty than did "reasonableness", but if an "in-borough" placement

was not reasonably practicable, then the housing authority had to try to offer

accommodation that was as close as possible to where the applicant had

previously been living. However, the "Supplementary Guidance on the

homelessness changes in the Localism Act 2011 and on the Homelessness

(Suitability of Accommodation) (England) Order 2012" changed the legal

landscape with respect to "out-of-borough" placement policies. Although a

decision to offer "out-of-borough" accommodation was not one that could be

reviewed under s.202 of the 1996 Act, a decision as to the suitability of the

accommodation offered could be reviewed. The location of the

47 [2015] EWHC 2375 (Admin) 48 [2015] 2 All ER 942

38

accommodation offered was relevant to its suitability. Section 11(2) of the

Children Act 2004 required housing authorities to have regard to the need to

safeguard and promote the welfare of children. That requirement applied not

only to the formulation of general policies and practices, but also to their

application in individual cases, and was clearly relevant in determining

whether accommodation was suitable. It was not enough for the decision-

maker simply to ask whether any of the children were approaching

externally-assessed examinations. It had to identify and have regard to their

principal needs, though it did not have to treat those needs as the paramount,

or even a primary, consideration. The housing authority had to evidence and

explain any decision about where to accommodate a homeless applicant. It

had to give proper consideration to the 1996 Act, the 2004 Act, the Code and

the Supplementary Guidance, and it had to be clear from its decision that it

had done so. Local authorities were entitled to take account of the resources

available to them, the difficulties of procuring sufficient temporary

accommodation at affordable prices in their area, and the practicalities of

procuring accommodation in nearby authorities. Ideally, each housing

authority should have up-to-date and publicly available policies for procuring

sufficient units of temporary accommodation to meet the anticipated demand

during the coming year, and for allocating that accommodation. Those

policies should reflect the authority's statutory obligations and should be

approved by the democratically accountable members of the council. Where

there was an anticipated shortfall of "in-borough" accommodation, the policy

should explain the factors that would be taken into account in allocating. That

way, the lawfulness of the policies, as well as individual decisions, could be

challenged. Finally, a standard paragraph of the sort used in the instant case

was not an appropriate way in which a housing authority might properly

evidence and explain its decision

110. In Johnston v City of Westminster the Court of Appeal held that a

housing authority could not decide that an applicant for housing was not

homeless under s 175(1) of the Housing Act 1996 on the basis that he might be

offered accommodation by another authority which had accepted that it had a

duty to house him.49

111. In Samuels v Birmingham CC the Court of Appeal held that when

assessing whether accommodation had been affordable for the purpose of

determining whether a tenant had become intentionally homeless by accruing

rent arrears, there had to be an assessment of income and relevant expenses as

a whole. Benefits income had no special status in that assessment.50

49 [2015] EWCA Civ 554 50 [2015] HLR 47

39

112. In R(Faizi) v Brent LBC Haddon-Cave J held that s 193 of the Housing

Act 1996 made clear that from the moment that a person refused an offer of

suitable accommodation, the duty on the local housing authority to provide

accommodation ceased.51 There was a power, but not a duty, to provide

accommodation pending a review or appeal against that decision.

113. In Hotak v Southwark LBC the Appellants applied for accommodation

on the basis that they had priority need under s.188 and s.189 of the Housing

Act 1996.52 The issues before the Supreme Court were: (1) does the

assessment of whether an applicant is vulnerable for the purposes of

s.189(1)(c) of the Act involve an exercise in comparability, and, if so, by

reference to which group of people is vulnerability to be determined?; (2)

when assessing vulnerability, is it permissible to take into account the support

which would be provided by a family member to an applicant if he were

homeless?; and, (3) what effect, if any, does the public sector equality duty

under s.149 of the Equality Act 2010 have on the determination of priority

need under the 1996 Act in the case of an applicant with a disability or any

other protected characteristics?

114. In Hotak the Supreme Court raised a number of useful points to be

borne in mind in such cases. First, vulnerability is concerned with an

applicant’s vulnerability if he is not provided with accommodation and so it

focuses on the ‘provision of bricks and mortar’ rather than ‘care and attention

for the gravely disabled’. Secondly, whether an applicant is vulnerable must

involve an assessment looking at his particular characteristics and a situation

of homelessness must be looked at in the round, taking each of the problems

together, which Lord Neuberger said must require the local authority to “pay

close attention to the particular circumstances” of the applicant. Thirdly, a

lack of resources or available accommodation on the local authority’s party

cannot affect whether or not an applicant is in priority need. Fourthly, care

should be adopted when employing certain vocabulary and statistics in

homelessness cases particularly when used in legal documents – such phrases

which the Court exercised caution over included ‘fending for oneself’ and

‘street homelessness’. Fifthly, ‘vulnerable’ pursuant to s.189(1)(c)should not

be taken as meaning that those falling in (a), (b) and (d) are also vulnerable –

those sub-provisions look instead at priority need. The Supreme Court

considered that whether a person is considered to be ‘vulnerable’ would

inevitably require comparison with persons who would not be vulnerable,

and such possible comparators were: (a) the ordinary person if rendered

51 [2015] EWHC 2449 (Admin) 52 [2015] UKSC 30.

40

homeless; or, (b) the ordinary person who is actually homeless.

Comparator(s) was considered to be the correct approach. Lady Hale gave a

separate judgment in which she agreed with Lord Neuberger as to the correct

comparator, but disagreed in relation to the effect of assistance from a third

party.

115. Following this judgment, the Supreme Court handed down the

judgment in the case of Haile v Waltham Forest LBC approximately one

week later.53 The issue before the Court was whether the Authority should

have considered whether the applicant’s homelessness was intentional as at

the date she became homeless or as at the date of the Authority’s decision.

The applicant was an assured shorthold tenant of a property with effect from

June 2010. She became pregnant the following year in July, and in October

2011 moved out of the property to stay with a friend. She approached the

Authority’s Homeless Persons Unit in November 2011, and made a formal

application as a homeless person. The Authority subsequently informed her

that she was intentionally homeless, and her friend in the same month

required her to leave and the Authority to provide her with interim

accommodation. The applicant sought a review against the finding that she

was intentionally homeless (a decision formally reached in August 2012). The

Court of Appeal dismissed the applicant’s appeal, but then again, in a

majority four to one decision, the Supreme Court allowed the appeal. Lord

Reed, delivering the leading judgment, stated that the legislation posed two

causation questions. First, what caused the applicant to cease to occupy the

accommodation in question? Second, was that the cause of her current

homelessness? The second question was one of implication, in order to avoid

absurd consequences. It was held that the proper approach was to not only

consider what caused the applicant to become homeless as at the time she

departed the relevant accommodation, but also whether there was a

“continuing causal connection” with her homelessness as at the date of the

Authority’s decision. This was in accordance with the policy of Party VII of

the Housing Act 1996 and in line with the reasoning of the majority in Din v.

Wandsworth London Borough Council.54

116. In the case of A v Enfield LBC Hayden J upheld the application for

judicial review by a teenage girl who had been refused accommodation by the

local authority, pursuant to her application as a child in need of

accommodation and support under s.20 of the Children Act 1989.55 The

applicant had presented herself as homeless, stating that although her family

53 [2015] UKSC 34. 54 [1983] AC 657. 55 [2016] EWHC 567 (Admin).

41

lived in the defendant’s area, she did not wish to return to them and provided

a generalised account of domestic violence incidents and being detained at

the airport. Following an assessment by the local authority, although the

applicant’s case was considered high profile because of concerns around

radicalisation, it was concluded that she was not homeless as she was able to

return to her parents. In granting the application, Hayden J held that the

concept of need under s.17 covered a wide spectrum of issues relating to the

welfare of a child and the 1989 Act imposed a duty both to promote and to

safeguard the welfare of children. The Court also held that greater weight

must be attached to the wishes and feelings of an older child, as they were

likely to have an increased understanding, particularly in situations where a

child was requesting support. In respect of children and homelessness, the

Court made clear that many children who were at risk or in need lived with

parents or carers who themselves presented a risk, or as in the instant case,

were unable to protect them. That such parents continued to offer a home to

their children was often understandable but frequently irrelevant. The local

authority’s decision-making had been fundamentally flawed.

117. Conversely, in the case of M v. Islington LBC an application for

judicial review by two severely autistic children was refused. 56 The children,

aged 9 and 10, had originally applied to the local authority to rehouse them,

as they lived with their respective mothers in local authority accommodation.

They required close supervision and lacked a sense of danger, but their

bedrooms were on the first floor, which posed a risk as they were likely to

jump out of the window. They sought appropriate transfers but the local

authority considered that their need for transfer was not urgent and that the

risks could be managed with safety precautions. As part of their arguments,

the children submitted that s.27 of the Children Act 1989 required different

departments within a local authority to cooperate, and that because of their

condition they went onto the housing risk register, but due to the lack of a

system in place by the local authority this had not been identified. Collins J

held that s 27 required cooperation between local authorities and not between

different departments of an authority, and so the welfare of children by social

services, did not mean that a department like housing also had responsibility

for the children. The statutory requirement applied indirectly, insofar as the

relevant department(s) owed a duty. In respect of the risk register, it was

clear that the authority’s system involved all relevant professionals, and it

was apparent from the evidence that it was open to anyone in children’s

services to raise any concerns about risk in existing housing. The current

system was accordingly lawful.

56 [2016] EWHC 332 (Admin).

42

118. In the unreported case of R( Abdusemed) v. Lambeth LBC a local

authority’s refusal to provide an Eritrean national with accommodation

pending review of her homelessness application was held not irrational and

unlawful.57 Even though she had been diagnosed with moderately severe to

severe post-traumatic stress disorder and had been sleeping in a mosque at

night and wandering the streets by day, she was deemed not to be street

homeless. Her application was refused on the basis that the matters to be

considered by the local authority were three-fold: (1) the merits of the case; (2)

the applicant’s personal circumstances and the consequences of an adverse

decision on the exercise of the discretion; and (3) whether new material had

come to light that would affect the decision. The only new information had

been the psychiatric information, and the Court opined that although the

applicant’s situation was far from ideal it did not amount to street

homelessness, and there had been no error of law in the local authority’s

decision letter.

119. In R(Edwards) v. Birmingham City Council four homeless people

claimed that the local authority had breached its duties under the Housing

Act 1996 Part VII by failing to commence a statutory inquiry into their

requests for assistance under s.184, and further, that it had failed to secure

suitable interim accommodation was made available to them under s.188.58

They sought a general declaration that when dealing with those seeking

assistance with accommodation, the local authority's procedures did not

comply with Part VII, and a general mandatory order that the local authority

implement procedures to avoid delay in the investigation

of homelessness claims and/or in the provision of suitable temporary

accommodation under s.184 and s.188 respectively. The claimants all argued

that they had been "homeless at home", meaning that they had not claimed to

be "roofless" with no accommodation, but rather that it was not reasonable for

them to occupy their existing accommodation, so they should have been

deemed homeless by virtue ofs.175(3). They alleged that the local authority's

standard procedures revealed systemic failures which were also evidenced by

16 other cases in which no formal claim was made. The claimants submitted

that the local authority had deliberately sought to avoid, or to delay

complying with its statutory duties.

Housing benefit

120. In R(Rutherford) v Secretary of State for Work and Pensions the Court

of Appeal considered the lawfulness of the scheme under the Housing Benefit

57 [unreported], QBD, 19 February 2016. 58 [2016] EWHC 173 (Admin).

43

(Amendment) Regulations 2012, which reduced housing benefit for those

who were under-occupying their homes.59 The Housing Benefit Regulations

2006 Reg B13 discriminated against families with disabled children who

required an additional bedroom for overnight carers. It also discriminated

against female victims of domestic violence living in accommodation adapted

under the sanctuary scheme. There was no objective justification for that

discrimination.

Licensing of private sector rented properties

121. In R(Croydon Property Forum) v Croydon LBC Sir Stephen Sibler held

that a local authority had complied with its duty to take reasonable steps to

consult persons likely to be affected by its decision to designate the entire

borough for selective licensing of privately rented sector properties.60 Real

prejudice had been caused to the local authority and the claim could not fail

on the grounds of delay (see paras 34-35 of judgment). The nature and extent

of the obligation imposed on the local authority in s 80(9) of the 2004 Act was

to take reasonable steps, not all steps or even all reasonable steps. The local

authority had complied with that duty. Firstly, although stage 1 was not part

of the consultation process it was of great relevance because it drew the

proposal to the attention of many members of the private landlord

community, putting them on notice of what was in issue and the times when

they would be formally consulted. Secondly, the comprehensive publicity

which was given in the next stages of the consultation process meant that any

person interested in the letting of property was highly likely to have become

aware of the consultation. Thirdly, it was reasonable to assume that any

person investing in property in the area would regularly review the local

media to ensure that they were fully aware of all matters relevant to their

investment. Fourthly, the consultation lasted six months, and was publicised

in a variety of ways for much of that period. The fact that it went on for so

long had to have increased the chance of people seeing it. It would not be

pure happenstance if developers became aware of the consultation. Further,

as specified in the relevant Guidance, the local authority had used various

channels of communications at all stages of the consultation process including

the use of, inter alia: its own website, flyers and posters, emails, social media

and press releases. There was nothing to suggest that a local authority should

target any particular group. Finally, there were very few instances of

developers and landlords who the claimant said should have been consulted

59 [2016] EWCA Civ 29 60 [2015] EWHC 2403 (Admin)

44

but had not been. That small number indicated that the local authority had

taken reasonable steps to consult persons likely to be affected. In any event, a

strict construction of s 80(9) was not appropriate on a judicial review

application. The local authority had a comparatively wide discretion as to

how the consultation process was carried out and it would not be considered

unlawful unless something had gone clearly and radically wrong, which it

had not. Comprehensive publicity had been given to the consultation exercise which

had lasted six months, and it could reasonably be expected that anyone with a

connection to, or interest in, the area would have had the local authority's proposals

drawn to their attention.

Secure tenancies

122. In Wandsworth LBC v Tomkins the Court of Appeal held that the

notification requirement for creating a secure tenancy under Sch 1 para 4 of

the Housing Act 1985 equired a landlord to notify tenants that the tenancy

was to be regarded as secure at the date of grant, and not merely at some

unspecified date in the future.61 The signing by tenants of an introductory

tenancy could not amount to notification by a local authority of a secure

tenancy under Sch 1 para 4.

JUDICIAL REVIEW

Substantive principles

Bias and predetermination

123. In HCA International Ltd v Competition and Markets Authority the

Court of Appeal considered the principles to be applied in determining

whether a public authority must appoint new decision-makers where one of

its decisions has been quashed by a court and remitted back to it to be

retaken.62 The Claimant challenged the findings of the CMA after its

investigation into private healthcare. The CMA conceded that the decisions

should be quashed, but HCA challenged the ruling that they could be

remitted back to the original decision-making panel. The Court held that

remission should usually be to the same decision-makers unless doing so

would cause reasonably perceived (public law) unfairness to the affected

parties or would damage public confidence in the decision-making process.

61 2015] EWCA Civ 846 62 [2015] EWCA Civ 492

45

124. The presence of actual bias, apparent bias or confirmation bias (bias

linked with an inability to change one's mind) would make remission to the

same decision makers undesirable. And the practicality of appointing new

decision makers should not be taken into account in deciding whether there

would be unfairness in failing to do so. However, bias could not be assumed

from the mere fact of the earlier decision, and had to be demonstrated in the

usual way. In holding that the CMA decision-makers did not have to be

replaced in this case, the court placed significant weight on the fact that they

were experienced professionals with no personal interest, and from whom

certain high standards of conduct could be expected.

125. In Broadview Energy Developments Ltd v Secretary of State for

Communities and Local Government the court considered a claim that the

Secretary of State was biased after an MP lobbied the Secretary of State

against granting permission for a wind farm.63 The Claimant challenged

the Secretary of State’s decision to uphold the refusal of permission to

build a wind farm. A planning inspector has recommended that

permission be granted. However, the Secretary of State disagreed with

that recommendation, considering that the benefits were not sufficient to

outweigh the likely adverse impacts. The local MP had campaigned

against wind farms generally and she had openly opposed the Claimant’s

proposals. She wrote a number of letters to Secretary of State. The

Claimant argued that the MP’s intervention rendered the Secretary of

State's decision unlawful. The Claimant complained that the Secretary of

State had failed to inform it of the correspondence. Further, it complained

that the MP had addressed a minister on the subject at the House of

Commons tea room and lobby.

126. The court applied the well-established test for bias: whether the

fair-minded observer, having considered the facts, would conclude that

there was a real possibility that the decision-maker was biased.

127. The court observed that ministers being lobbied by MPs about

constituency issues was part of Parliamentary democracy. Generally, such

lobbying would not be objected to and would not invalidate a minister’s

decision, so long as they acted fairly and consistently with the standards

of propriety set by the Planning Inquiries Rules, the Ministerial Code and

the planning guidance. The Claimant failed to establish that the

ministerial decision against planning permission was unlawful, either

through unfairness, bias or a material breach of planning propriety

standards. The court observed that the MP’s letters had not raised any

63 [2015] EWHC 1743 (Admin)

46

new matters and they were not relied on by the Secretary of State as the

basis for his disagreement with the planning inspector. The court also held

that there was nothing improper about the meetings between the MP and

the Minister in the House of Commons and they did not give rise to a

finding of bias.

128. In R (British Academy of Songwriters & Others) v Secretary of

State for Business, Innovation and Skills v The Incorporated Society of

Musicians the Claimant pursued grounds including a claim that the

Secretary of State predetermined a decision which was subject to

consultation. The decision under challenge was the Secretary of State’s

decision to introduce a new statutory provision which reduced copyright

protection without also introducing a compensation scheme for producers

of work protected by copyright.64 The new section ‘28B’, inserted into the

Copyright, Designs and Patents Act 1988, has the effect of creating an

exception to copyright based upon personal, private, use. Under the new

provision, any person who legitimately acquires works such as music,

film, books can copy that work for his or her own private use without

infringing copyright. The work cannot, however, be given to others

(family or friends etc.) and cannot be used commercially. The Claimants

contended that, despite the restrictions which remain, the relaxed rules

presented a risk to producers and should have been accompanied by a

scheme of compensation. The Secretary of State consulted on his proposals

but had appeared opposed to a compensation scheme.

129. The Claimants said the Secretary of State was so firmly committed

to introducing an exception to the copyright protections without a

corresponding compensation scheme that his “pre-disposition” was, in

truth, a “predetermination” which was unlawful. Reliance was placed on

an impact assessment which stated:

In view of the Government's intention to implement the exception without

introducing a levy or similar mechanism, we have made every effort to

minimise harm caused by it.”

130. The Claimants said it could be inferred from that, and other facts,

that the Secretary of State embarked upon the consultation exercise with

an unshakable and fixed determination to introduce copyright exception

without any compensation provisions. The Claimants contended that no

amount of convincing and compelling contrary evidence, generated by the

64 [2015] EWHC 1723 (Admin)

47

consultation, was going to dissuade the Secretary of State from his fixed

position.

131. The claim was rejected. The court emphasised that a decision maker

is entitled to have a strong predisposition. The court suggested that

consulting on a firmly stated proposal might promote the effectiveness of

the consultation. Green J said:

Indeed, if the decision maker's cards are laid squarely upon the table

consultees are fully informed as to that predisposition and have the

clearest possible target at which to aim their submissions. A strong

predisposition is not, therefore, inimical to a fair consultation assuming, of

course, that the decision maker is prepared to keep an open mind and be

willing to change his or her views if the evidence and submissions

tendered are properly persuasive.

132. The court also pointed to the absence of evidence of

predetermination. The court was opposed to reaching a finding by

inference. The court observed that it would be ‘rare’ for inferences to

justify a conclusion of predetermination. In this case, the learned Judge

said that was an ‘absence of any evidence that the Defendant in actual fact

prematurely closed his mind…’ and so the predetermination ground failed.

Consultation

The established principles of common law fair consultation

133. In R(Rusal) v London Metal Exchange the Court of Appeal recently

reaffirmed some basic principles about what common law fairness requires:65

However, the application of the duty of fairness in consultation cases is

intensely case-sensitive; this is not an area of law where it is possible to

provide statements of general principle: see R(Greenpeace Limited) v

Secretary of State for Trade and Industry66 (approved Court of Appeal

in Rusal [28]):67

Judgments are not to be construed as though they were enactments of

general application, and the extent to which judicial dicta are a response to

65 [2014] EWCA Civ 1271 66 [2007] EWHC 311 (Admin) 67 R(Rusal) v London Metal Exchange [2014] EWCA Civ 1271

48

the particular factual matrix of the case under consideration must always

be borne in mind.

The process of consultation will become inordinately complex and time

consuming if the consultation body have to set out the options: see

Maurice Kay J in Medway [28] (approved Rusal [26] ):

Other things being equal, it was permissible for him (that is, the

Secretary of State) to narrow the range of options within which he

would consult and eventually decide. Consultation is not negotiation.

It is a process within which a decision maker at a formative stage in the

decision making process invites representations on one or more

possible courses of action. In the words of Lord Woolf MR in Ex parte

Coughlan,68 the decision maker's obligation “is to let those who have

potential interest in the subject matter know in clear terms what the

proposal is and why exactly it is under positive consideration, telling

them enough (which may be a good deal) to enable them to make an

intelligent response. The obligation, although it may be quite onerous,

goes no further than this.” This passage was approved by the Court of

Appeal in R (Forest Heath DC) v Electoral Commission [2010]

PTSR 1227 at para 54.

Common law consultation, (whether it is a matter of obligation or

undertaken voluntarily) requires fairness: see Medway,69 Maurice Kay J

(approved Rusal [26]). See also Lord Reed in Moseley [38].

The cases concerned with consultation demonstrate that the Court

should only intervene if there is a clear reason on the facts of the case

for holding that the consultation is unfair. It is for the court to decide

whether the obligation of fairness has been broken. (approved Rusal

[27]).

134. The Court of Appeal has indicated in R(Royal Brompton Foundation

Trust) v Joint Committee of Primary Care Trusts that particular principles

need to be applied where the Court hears before the decision is made on the

proposals subject to consultation:70

They are all subject to the same threshold objection: the act challenged

was a consultation process, not the final decision of a public body. One

of the functions of a consultation process is to winnow out errors in the

decision-maker's provisional thinking. The JCPCT owes a public law

duty to reconsider matters in the light of responses. True consultation

68 [2001] QB 23 at para 112 69 R(Medway Council) v Secretary of State for Transport [2002] EWHC 2516 ADMIN para 28 70 [2013] 126 BMLR [87]-[92]

49

is not a matter of simply “counting heads”: it is not a matter of how

many people object to proposals but how soundly based their

objections are.

It is difficult to know at the earlier stage whether the decision will be

persisted in after consultation. Intervention at the earlier stage may

also cause wasteful, harmful or avoidable delay, particularly where

consultation is conducted on the scale on which it was conducted in

this case.

A further reason for caution is that the decision-maker has to balance

the interests of several different groups, not simply those represented

before the court. The decision-maker may be in a better position to do

this effectively and in such a way as to prevent the interests of one

particular group receiving inappropriate precedence over the interests

of other groups.

Not all objections to the accuracy of a consultation process will lead to

a full reconsideration of provisional decisions. It is not enough,

therefore, for a party seeking to quash a consultation exercise to point

to some facts that are inaccurately presented. Their inaccuracy may on

reflection lead only to a minor and immaterial scaling down of the case

supporting the provisional proposal for change. The arguments for

change will not then be as black and white as they appeared in the

consultation document, but different shades of grey. Determining the

strength of those shades of grey is generally not a matter for the court

but the decision-maker.

In short, it is inherent in the consultation process that it is capable of

being self-correcting. The courts should therefore avoid the danger of

stepping in too quickly and impeding the natural evolution of the

consultation process through the grant of public law remedies and

perhaps being led into areas for the professional judgment of the

decision-maker. It should, in general, do so only if there is some

irretrievable flaw in the consultation process.

What fair consultation requires

135. In R(South West Care) v Devon CC Singh J held that the essence of

consultation was the communication of a genuine invitation to give advice

and a genuine receipt of that advice;71 so that there was no consultation where

71 [2012] EWHC 1867 (Admin); and see R v Secretary of State for Social Services ex p Association of

Metropolitan Authorities [1986] 1 WLR. 1

50

a local authority never issued an invitation to care providers to give advice on

the issue of whether fees should be increased for the relevant year.

136. The principles which fairness requires in order for consultation to be

adequate are very firmly established,72 and have now been reaffirmed by the

Supreme Court in Moseley.

consultation must be at a time when proposals are still at a formative

stage;

the proposer must give sufficient reasons for any proposal to permit of

intelligent consideration and response;

adequate time must be given for consideration and response. and

the product of consultation must be conscientiously taken into account

in finalising any proposals.

137. However, the Supreme Court in Moseley also added a new ingredient-

whether the decision maker is obliged to consult on alternative proposals

which the public body has discarded.

Consultation on proposals which the public body does not wish to pursue

138. Until Moseley the Courts allow a public body a wide degree of

discretion as to the options on which to consult: see the Divisional Court

decision in The Vale of Glamorgan Council v Lord Chancellor73 at [24]

(approved Rusal [29]).

139. In Rusal itself the Court of Appeal reversed the decision of Philips J

and held that there is, in general, no obligation on a public body to consult on

options it has discarded. The statement in De Smith's Judicial Review that

there should be consultation on “every viable option”, taken on its own, is not

supported by the authorities:74 see Rusal [31].

The Supreme Court decision in Moseley

140. In Moseley the Supreme Court decided that a statutory consultation in

relation to a council tax reduction scheme could only be fair and fulfil its

statutory objective of public participation in the decision-making process if

the consultees were made to be aware of other ways of absorbing the shortfall

in funding and why the council had rejected them, so that the consultation

document itself should have contained a brief outline of the alternative

72 R v Brent LBC, ex p Gunning (1985) 84 LGR 168 73 [2011] EWHC 1532 (Admin) 74 (7th ed, paragraph 7-054)

51

options and the reasons for their rejection. Council tax benefit (which was

made by the Department for Work and Pensions and operated by local

authorities) was replaced by council tax reduction schemes (CTRS) locally

determined by each billing authority under section 13A of the Local

Government Finance Act 1992.75 Section 13(A)(2) of the Local Government

Finance Act 199276 required each local authority to make a CTRS for those

whom it considered to be in financial need.77

141. Sch 1A to the 1992 Act, para 2 prescribes in detail the matters which

must be included in a scheme,78 and defines its scope by defining the classes

of persons eligible for a reduction under it and the reduction that people in

each class are entitled to. Statutory consultation in accordance with a

proposed scheme, therefore, concerned a single issue and is directed to

consulting on a financial proposal which was aimed to help those less well

off. As a result, , the consultation focused on the proposed scope of a CTRS, ie

the classes of eligible people and the extent of reduction available.

142. Sch 1A to the 1992 Act, para 3(c) defines the obligation to consult by

requiring the authority to ‘consult such other persons as it considers are likely to

have an interest in the operation of the scheme’.

75 Section 13A, Local Government Finance Act 1992, as substituted: “(1) The amount of council tax

which a person is liable to pay in respect of any chargeable dwelling … (a) in the case of a dwelling situated in

the area of a billing authority in England, is to be reduced to the extent, if any, required by the authority's

council tax reduction scheme … (2) Each billing authority in England must make a scheme specifying the

reductions which are to apply to amounts of council tax payable, in respect of dwellings situated in its area,

by— (a) persons whom the authority considers to be in financial need …” 76 Substituted by section 10(1) of the Local Government Finance Act 2012 77 Each billing authority in England must make a scheme specifying the reductions which are to apply to

amounts of council tax payable, in respect of dwellings situated in its area, by—

(a) persons whom the authority considers to be in financial need, or

(b) persons in classes consisting of persons whom the authority considers to be, in general, in financial need.’ 78 (1) A scheme must state the classes of person who are to be entitled to a reduction under the scheme.

(2) The classes may be determined by reference to, in particular—

(a) the income of any person liable to pay council tax to the authority in respect of a dwelling;

(b) the capital of any such person;

(c) the income and capital of any other person who is a resident of the dwelling;

(d) the number of dependants of any person within paragraph (a) or (c);

(e) whether the person has made an application for the reduction.

(3) A scheme must set out the reduction to which persons in each class are to be entitled; and different

reductions may be set out for different classes.

(4) A reduction may be—

(a) a discount calculated as a percentage of the amount which would be payable apart from the scheme,

(b) a discount of an amount set out in the scheme or to be calculated in accordance with the scheme,

(c) expressed as an amount of council tax to be paid (lower than the amount which would be payable apart from

the scheme) which is set out in the scheme or is to be calculated in accordance with it, or

(d) the whole amount of council tax (so that the amount payable is nil).

52

143. The critical factual background which the Supreme Court considered

in Moseley were described by Lord Wilson [9) that in his introduction to the

cabinet report Councillor Goldberg, Haringey's cabinet member for finance,

wrote:

“Needless to say it is my belief that this represents one of the most

appalling policies of the Government and it is not insignificant that the

unemployed will now be facing the prospect of having to pay 20% local

taxation levels, which they last were subjected to paying under the poll

tax.”

There was nothing wrong with Councillor Goldberg's expression of

indignation. But it did betray an assumption that the shortfall would have to

be reflected by provisions in the CTRS which reduced the level of relief below

the level previously provided by way of CTB rather than that Haringey should

absorb it in other ways.

144. Lord Wilson repeatedly emphasised that the cut in Council Tax Benefit

will result in the Council having a shortfall of 20%, even though it did not

necessarily have this effect [17], [19], [21], [22]. He states at [31]:

I speak as one who, even after a survey of the evidence filed by Haringey in

these proceedings, remains unclear why it was minded to reject the other

options. Perhaps the driver of its approach was political. At all events I cannot

imagine that an affirmative answer can be given

145. Lord Wilson plainly took the view that the Council had gone too far

by consulting on a basis that was positively misleading.

146. The critical question for the consultation to address in Moseley was

what should the scope of the scheme be? The answer dictated the cost of the

scheme. However, Haringey’s proposals started with a costs cap (which was

not explained) – and the Council actively discouraged any suggestion that the

scheme could cost more or that the scope of the scheme should be broader –

in fact, wrongly making the positive suggestion that a broader scheme was

not an option. As Haringey was required to consult on the scope of the

proposed scheme, it had acted unlawfully.

147. However, it is unclear what the exact ratio of Moseley is: whether the

broad approach taken in Moseley by Lords Wilson and Kerr (which appears

to cover both statutory and common law consultation) is the majority view, or

53

whether the more restrictive approach by Lord Reed which focuses on the

statutory character of the consultation prevails. The position is particularly

uncertain in the light of the careful concurring judgments of Baroness Hale

and Lord Clarke.

The subsequent cases

148. The critical issue following the Supreme Court decision is whether and

to what extent the principle established by Moseley now requires consultees

to have the opportunity to consult on proposals which the public body does

not support. Importantly, none of the cases which have argued for an

extension of Moseley have succeeded to date.

149. In R(Robson) v Salford City Council the local authority decided to stop

using its own employees to provide a transport service to enable severely

disabled adults to attend day centres. It had assessed the service users'

transport needs and proposed to meet those needs by making alternative

transport arrangements.79 The consultation material produced by the local

authority had presented an incomplete picture because it dealt with the

assessment of the existing service users' transport needs without clearly

stating that the proposal was to close the unit. However, that did not mean

that there had been a failure to consult, or that misleading material had been

provided. The consultation process as a whole was not unfair. What was

important for the users was not the continued existence of the unit as such,

but the transport arrangements made for them. They had been left in no

doubt that the assessments were to see whether, in each individual case, the

existing service could be replaced by an alternative. It was implicit that the

unit's service would be withdrawn from those for whom a suitable alternative

was available. The Court of Appeal held that there was nothing in Moseley to

cast doubt on the correctness of the legal principles applied by the trial judge;

and Richards LJ pointed out that in Moseley, the consultation material had

conveyed the positively misleading impression that other options were

irrelevant, and that was not so in Robson. Richard LJ said at [22] in relation to

Moseley that ’the decision is largely an endorsement at Supreme Court level of

principles already established at the level of the Court of Appeal…’

150. The Supreme Court refused permission to appeal to Robson on 12 May

2015 on the ground that ‘permission to appeal be refused because the application

does not raise an arguable point of law of general public importance which ought to be

considered by the Supreme Court at this time bearing in mind that the case has

already been the subject of judicial decision and reviewed on appeal’.

79 [2015] EWCA Civ 6

54

151. In R(L) v Warwickshire CC the claimants applied for judicial review of

the defendant local authority's decision to cut funding for social care services

for disabled children.80 The local authority had reduced its Integrated

Disability Service budget following government cuts in public sector

spending. Whilst most of the reduction had so far been achieved by staffing

cuts, the local authority intended to cut one of the front-line services in the

coming financial year. Mostyn J held there was no duty to consult at common

law and did not apply the Moseley principles.

152. In R(T) v Trafford MBC the claimant sought judicial review of the

defendant local authority's consultation on its proposal to cut its adult social

care budget for the 2015/2016 financial year. The claimant was an adult who

had autism and learning disabilities and lived in a supported living

placement, was dependent on 24-hour supported care. He claimed that he

would be at risk should any of the support he received be reduced because

the local authority was facing a £24.3 million budget deficit. It published

draft budget proposals in October 2014 in advance of its budget-setting

meeting in February 2015. In the draft budget it indicated that it would

neither increase council tax nor use money from its reserves to meet the

shortfall, and it outlined the reasons why. It then publicly consulted on

proposed budget cuts to five of its functions, including the provision of adult

social care services. The judicial review case was expedited, so it was heard

before the budget, itself, was set.

153. The claimant argued that the Supreme Court decision in Moseley

meant that consultations must spell out that cuts could be addressed- by

raising Council tax or spending reserves. The claimant argued that this novel

and far reaching principle should extend to the five concurrent consultations

Trafford had held before setting its budget on 18 February 2014. He sought a

declaration that the consultation process was flawed and an order quashing

the consultation process insofar as it related to the adult social care budget

cuts. The issues were whether the local authority had a common law duty to

include information about realistic alternative options in its consultation; if it

did, whether it had discharged that duty; whether relief should in any event

be refused on the basis that it would be detrimental to good administration

for the court to grant a remedy before the budget was set.

154. Stewart J rejected the judicial review challenge. 81 Stewart J focused on

the fact that Lord Wilson said that ‘sometimes’ fairness required a public body

80 [2015] EWHC 203 (Admin) 81 [2015] EWHC 369 (Admin)

55

to consult on alternatives it discarded. He took the view that this obligation

might arise where real fairness would result from not doing so (as in

Medway) 82 or where the public body had been positively misleading. In

R(Medway Council) v Secretary of State for Transport the Government

consulted over the future of air transport, but did not include options for

Gatwick. Maurice Kay J accepted that Gatwick must be considered at some

stage and that a fair playing field required it to be considered at this stage;

otherwise it had obtained an unfair advantage.

155. The Court of Appeal refused an oral application for permission to

appeal on 26 November 2016.

156. In R(Morris) v Rhondda Cynon Taf CBC the claimants sought judicial

review of the decision of the local authority to cease funding full-time nursery

education for three-year-olds following the completion of a Childcare

Sufficiency Audit (CSA), it set out its CSA plan for 2014-2017. The Council

consulted on the proposal for its preferred option for change, namely the

provision of part-time nursery education after a child's third birthday and the

commencement of full-time provision after a child's fourth birthday. The

original consultation period of October until December 2014 was extended by

a month, and extra material was provided to consultees, including a

description and costing for each of the three options available in terms of

nursery provision. The issues before was whether the consultation had been

adequate and whether the Council breached its duty under s 22 of Childcare

Act 2006 to secure sufficient childcare for working parents.

157. The claimants argued that the information provided in the consultation

was insufficiently fair and accurate, and that Moseley established a general

proposition that it was necessary to invite views on possible alternatives to

the proposal so as to enable an intelligent response. Patterson J dismissed the

application. Once a consultation had been embarked upon, for it to be fair the

public authority had to: (a) let those with a potential interest in the subject

matter know clearly what its proposal was; (b) explain why the proposal was

under positive consideration; (c) give the consultees sufficient information so

that they could make an informed response to the proposal; (d) allow

sufficient time for the consultees to submit their informed response; (e)

conscientiously consider the product of the consultation and take that into

account when reaching and taking the final decision.

158. As part of presenting the information in a clear way, the decision-

maker could present the preferred option. Part of the available information to

82 [2002] EWHC 2516 (Admin)

56

be presented to the public could be alternative options for change. What was

an alternative option would depend on the factual and context-specific

circumstances of the consultation in question. Patterson J held that Moseley

showed that fairness in a consultation exercise is very context-specific; and

did not establish a rule that alternatives had to be consulted upon in every

consultation exercise. Sometimes fairness might require it, so that consultees

could make sense of the consultation exercise. When that was the case, the

alternatives would have to be realistic alternatives. Patterson J held that the

presence of the extra options provided consultees with alternatives to the

preferred option.

159. In R(Hall) v Leicestershire County Council the claimant challenged the

part closure of the Snibston Discovery Museum; 83 and Blake J dismissed the

judicial review claim, deciding that Lord Wilson was not holding in Moseley

that every consultation requires reference to possible alternatives, applying

the fact specific approaches adopted by in R(T) v Trafford MBC and in

R(Morris) v Rhondda Cynon Taf Council. Blake J expressed the view that:

difficult issues arise when a local authority is considering withdrawing financial

support from a popular regional museum that has plainly added both value to the

local economy and the quality of life of visitors, volunteers and staff, and also

houses unique exhibits to which the public will no longer have access ... None of

the extensive authorities cited by the parties in their written and oral submissions

refer to museum closures, and, in my judgment, there is a distinction between

cases concerned with the closure of a local library and museums, as in most of

these cases books will still be available to the public in the region elsewhere by one

means or another … I would incline to the view that, where such a proposal is

under consideration, there is a duty on the local authority to ensure that it has

identified and examined every viable proposal by way of alternative to the closure

option before the risk of permanent loss of access by the public to collections

results. An active search for viable partnerships may therefore be what is required

before cultural assets are removed from public access, let alone the irreversible

decision to "de accession" such assets by open market sale which may mean that

such a public authority forfeits all trust in the future as a guardian of such assets.

However, Blake J accepted that the campaigning body did not put forward

any positive alternatives before the consultation period commenced.

160. Similarly, in R(Tilley) v Vale of Glamorgan Council Laing J held that

the local authority was entitled to consult on its preferred option of

community-led libraries without providing any alternatives or explicitly

83 23 July 2014

57

inviting views about reduced hours.84 There was no requirement to refer to

the disadvantages of community-led libraries. There was no reason for

doubting that the results of the consultation had been taken into account,

since the responses had been fully reported to the cabinet. Laing J held that:

obligation to consult on alternatives will depend on the facts of the case in

hand, and, in particular, on whether there are any realistic alternatives …

Moseley gives limited help on the question when there will be an obligation to

consult on alternatives. It is clear from paragraphs 40 and 41 of Lord Reed's

judgment that in some cases there will be no obligation to consult on

alternatives; and even when such an obligation does arise, it may not require

an authority to discuss alternatives in detail, or the reasons why they have

been rejected.

Conclusion on consultation on proposals which the public body does not wish to

pursue

161. The principles which emerge from the Supreme Court decision in

Moseley should, therefore, not be overstated. It will be a rare case where a

consultation is held to be unlawful as a result of a failure by the decision

maker to spell out alternatives to its proposals.

Duty to re-consult

162. The question of when it is necessary to re-consult was considered in

R (Keep Wythenshawe Special Ltd v University Hospital of South

Manchester NHS Foundation Trust.85 The Claimant challenged proposed

changes to acute hospital care under which specialist care for patients

with life-threatening conditions was to be consolidated into four specialist

hospitals. Two criteria used by the Defendant to determine which

hospitals would be specialist hospitals were "quality and safety" and

"travel and access". After a public consultation, the Defendant selected the

four hospitals which would be specialist hospitals. The Claimant objected

to the selection of one hospital over another.

163. The Claimant said there was a duty to re-consult because, after the

consultation closed, the Defendant revised its approach to analysing the

‘travel and access’ criteria. Initially, the Defendant was considering access

84 [2015] EWHC 3194 (Admin) 85 [2016] EWHC 17 (Admin)

58

by people living within Manchester. After the consultation showed that

the hospitals were used by people from outside Manchester, the

Defendant changed its approach, considering their access too.

164. Dove J held that the failure to re-consult, after the change of

approach was not unfair. Although the Defendant went on to consider

access by people beyond the group identified in the consultation, the new

analysis did not involve abandoning or changing the criteria that were

applied. The learned Judge said that the decision to take into account

access by people outside Manchester was an ‘unsurprising development’

after the consultation responses showed that the hospitals served patients

from a wider areas beyond the boundaries of Manchester. Dove J

summarised the law on the duty to re-consult in the following terms:

The requirements of fairness in considering whether or not to re-consult

must start from an understanding of any differences between the proposal

and material consulted upon and the decision that the public body in fact

intends to proceed to make. This is because there will have already been

consultation. The issue is, then, whether it is fair to proceed to make the

decision without consultation on the differences, which will therefore be

heavily influenced in this particular context by the nature and extent of

the differences. Whilst it is not possible to produce any exhaustive list of

the kind of matters that would need to be considered (alongside all the

other legal principles set out above) to determine whether re-consultation

is required, some illustrations may assist. Examples would include where

it has been determined that it is necessary to re-open key decisions in a

staged decision-making process which had already been settled prior to

consultation occurring; or where the key criteria set out for determining

the decision and against which the consultation occurred have been

changed; or where a central or vital evidential premise of the proposed

decision on which the consultation was based has been completely falsified.

These examples serve to illustrate the very high order of the significance of

any difference which would warrant re-consultation.

It is also important to point out that the question of a change's

significance is not to be determined with the benefit of hindsight: it is

significance at the point in time when the question of re-consultation is to

be determined that counts. Finally, the fact that a change arises so as to

reflect views produced by the consultation process does not itself require

re-consultation. Once again, it is the extent of the change or difference

which is the starting point. If the change arose from the original

consultation that is simply evidence of the fourth Sedley criterion in

59

operation and not in and of itself a reason for re-consultation. It is the

extent of the change which requires examination.’

Fairness

165. In R (S) v Crown Prosecution Service the court considered whether the

CPS’ process for reviewing decisions not to prosecute was contrary to the

requirements of natural justice.86 The Claimant had been arrested on suspicion

of rape. He was later released without charge. The complainant asked the CPS

to review the decision not to prosecute. The CPS’s policy on such requests

provided for the suspect not to be notified of the review. The review

concluded that S should be charged.

166. The Claimant argued that conducting the review without his

knowledge, and therefore without giving him an opportunity to make

representations, was contrary to the requirements of natural justice. The

Court rejected the challenge. Sir Brian Leveson emphasised that the reviewing

lawyer was confined to taking account of information which had been

available to the prosecutor who made the initial decision, which was being

reviewed. The Learned Judge held that:

Natural justice does not require a decision-maker who is assessing only pre-

existing material and who is prohibited from taking into account new evidence

or information from the party seeking the review to invite a response from a

third party who may be affected by the result of the review.’

167. In Wilson v HM Senior Coroner for Birmingham and Solihull

illustrates that the requirements of fairness depend on context. The Claimant,

a surgeon, judicially reviewed the coroner's decision following an inquest into

the deaths of three patients.87 He had carried out surgery on the three

patients, each of whom died within a few weeks. The hospital had registered

a higher than expected mortality rate amongst the Claimant's patients, and he

was later dismissed. The Hospital Trust's medical director asserted, in his

witness statement for the inquest, that the Claimant had previously over-

reported rates of pre-surgery illness amongst his patients, raising the

predicted death rate and therefore making his actual mortality rate look

artificially low. The director alleged that with the correct data, the hospital

would have triggered an alert earlier and the claimant's practice would have

been restricted. The General Medical Council (GMC) was also seised of a

complaint on that issue. The claimant received the witness statement before

the inquest but did not have access to the underlying patient records. The

86 [2015] EWHC 2868 (Admin) 87 [2015] EWHC 2561 (Admin)

60

coroner stated that her interest was in when an alert would have been raised

had the correct data been recorded. The Coroner did not call of the records.

She concluded for each patient that the historic failure to accurately record the

data resulted in a missed opportunity to identify the problems earlier, which

could have led to the operations being carried out by a different surgeon.

168. The Claimant argued that, among other failings, the Coroner had not

given him a fair opportunity to challenge the data and the underlying records

before reaching findings. The challenge was rejected. The Claimant relied on

authorities as to the permissible approach to reaching findings of dishonesty

in civil proceedings. In civil proceedings, a court should not find that a person

has acted dishonestly unless that suggestion has been put to the individual

during the proceedings and they have been given an adequate opportunity to

respond to the allegation. However, the court held that those principles do

not apply directly to inquests. As to fairness in inquests, Burnett LJ said:

Fairness in an inquest must be fashioned in an environment where there

are no pleadings and in which those given leave to appear as interested

persons do not have a case to put. The evidence at inquests often takes an

unexpected turn and calls for a degree of flexibility in the procedure to be

followed as a consequence. The rules of evidence applied in criminal and

civil proceedings do not apply. Questions of fairness to those involved in

inquest proceedings must be judged against all these essential features and

also in the context that the statutory scheme prohibits a finding of

criminal liability on the part of a named person, or of civil liability.

169. The Claimant’s challenge to the rationality of the Coroner’s

findings also failed.

170. The requirements of fairness, before reaching adverse findings,

were also considered in MRH Solicitors Ltd v The County Court Sitting

at Manchester.88 The Claimants, a solicitors firm and two car hire firms,

applied for judicial review of the County Court's findings against them of

fraud and dishonesty in a personal injury claim. In proceedings in the

County Court the defendant driver alleged that a collision had been

fraudulently induced to make a false insurance claim. She pointed to 11

similar recent collisions. The claimant drivers in 11 of those cases had been

represented by the solicitors firm. In each case the drivers had been

provided with a replacement car by one of the car hire firms. The solicitors

firm and the car hire companies were not parties to the proceedings. The

88 [2015] EWHC 1795

61

defendant driver had not made any allegations of fraud against the

solicitors or the car hire firms and she had expressly denied such an

allegation in her oral evidence.

171. However, in his judgment the recorder found that the solicitors

were involved in a fraudulent claim run for the advantage of the car hire

companies. The Claimants contended the recorder erred in finding fraud

as fraud had not been pleaded against them. However, first the court had

to consider whether the Claimants were right to pursue the matter by way

of judicial review. The court observed that the Claimants could have

applied to be joined as parties to the proceedings. They then could have

applied for the judgment to be altered. Had the recorder refused, there

would have been an appealable decision. However, the court did not

decline its discretion to entertain the judicial review claim. The court

observed that a finding of fraud was particularly serious and so it was not

right to decline the claim on the basis of an alternative remedy. As to the

merits, the court held that the recorder had erred in reaching findings of

fraud. The court urged extreme caution before making findings of fraud

unless the party concerned has at least had the opportunity to give

evidence to rebut the allegation. The recorder had, the court said, been

entitled to voice his suspicions as to the solicitors' conduct if he thought

the evidence called for it. However, what he should not have done, the

court said, was to make positive and unqualified findings that they had

been fraudulent and dishonest.

172. In respect of remedy, the court could observed that it could not re-

write the recorder's judgment. The court simply recorded in its judgment

that the recorder had not been entitled to make a conclusive finding of

dishonesty or fraud against the claimants, and that they should be treated

as not having had such a finding made against them.

173. In R (Detention Action) v First-Tier Tribunal (Immigration and

Asylum Chamber) part of the Tribunal’s rules was found to be ‘structurally

unfair’, and declared as ultra vires.89 The Claimant challenged the "fast

track rules" in the Immigration and Asylum Chamber of the First Tier

Tribunal. Asylum seekers who had had their applications refused by the

secretary of state had a right of appeal to the First-tier Tribunal (and

subsequently, on a point of law, to the Upper Tribunal). The Rules

provided for a ‘fast track’ regime which applied to asylum seekers who

were detained. Fast track cases had much shorter time limits; an appeal

had to be heard within 7 working days of the decision appealed against.

89 [2015] EWHC 1689 (Admin)

62

The Tribunal had far more limited case management powers in fast track

cases, and could not vary the time for complying with any rule or

direction. The Claimant submitted that the fast track appeal provisions

were ultra vires the power conferred by s.22 of the Tribunals, Courts and

Enforcement Act 2007 in that they put the appellant at a serious

procedural disadvantage, imposed such a tight timetable and curtailed the

tribunal's case management powers to such an extent that justice could not

be done.

174. The Rules were made under s. 22 of the 2007 Act which required

that the rules be made with a view to securing five aims, including

securing that the rules aim to secure that ‘justice is done’ and that the

system be ‘accessible and fair’. Another aim was ensuring that

proceedings were dealt with ‘quickly and efficiently’. The question was

whether s. 22 of the Act authorised the committee to make, and the Lord

Chancellor to approve, the fast track rules with their limited time scale

and limited case management powers.

175. The court observed that the five objectives in s.22 might not all

point in the same direction, and so the rules would have to strike a

balance between any of the objectives which conflict. However, the court

held that the five objectives were not all of equal status, and the objective

that justice should be done had an element of priority. The court said that

rules would not be ultra vires simply because they could give rise to cases

of unfairness or injustice. However, rules would be ultra vires if they had

structural unfairness built into them. There is, the court said, an

irreducible minimum level of fairness which must be achieved,

particularly given the nature of the appeals in question (asylum claims).

176. The court held that the rules failed to provide the minimum levels

of fairness and so were ultra vires. The abbreviated timetable and limited

case management powers put appellants at such a serious procedural

disadvantage as to mean that the rules failed to meet the aim that justice

be done. The court also observed that it was the respondent to the appeals,

the Secretary of State, who had imposed that procedural disadvantage on

the appellants.

177. The Court of Appeal dismissed the Secretary of State’s appeal.90 The

Secretary of State argued that the Tribunal’s power, under the rules, to

take a case out of the ‘fast track’ was sufficient to achieve fairness. That

power could be exercised where the Tribunal is satisfied that the case

90 [2015] EWCA Civ 840

63

cannot be dealt with fairly under the fast track. Although superficially a

‘formidable’ argument, the court held that this power was not sufficient to

save the rules, for three reasons.

178. First, the application to be taken out of the fast track had to be

made at the fast track appeal hearing. Most asylum appeals turn on

disputes about the appellant’s credibility and often appellants will want to

present evidence to corroborate their claims, rebutting the Secretary of

State’s assertions about a lack of credibility. The court considered that 7

days would usually be insufficient to collect the evidence and it would

often be difficult for appellant to say with any force to the Tribunal

whether further enquiries would be fruitful. Therefore, appellants would

struggle to persuade a Tribunal that there are good reasons to transfer a

case out of the fast track.

179. Secondly, having to argue for transfer out of the fast track system at

the fast track appeal hearing puts appellants in a very difficult position.

The appellant is required to argue that the evidence that has been

submitted is insufficient, and that more time is required. However, if he

fails to secure a transfer out of the fast track, he must press on with his

appeal and must try to present the evidence as being sufficient to allow his

appeal. In short, in order to explain why the time scales are unjust, the

appellant has to identify all the evidential gaps in his case. But, if the

application to transfer is refused, the appellant will then have to try to

persuade the judge that the appeal should be allowed notwithstanding

these gaps. Finally, the court considered that Tribunal judges would be

likely to see the fast track as the default position.

Policy

180. Mandalia v Secretary of State of the Home Department is concerned

with whether a public authority is required to follow its own policies,

including those which are produced purely for internal purposes.91 The case

related to a policy document that instructed UK Border Agency caseworkers

to show some flexibility in relation to visa applications which had not been

accompanied by the requisite evidence. In such instances, the caseworkers

were required to invite applicants to remedy any deficiencies in the evidence

submitted with their applications. That policy was not followed in respect of

Mr Mandalia's application, which was subsequently refused.

91 [2015] UKSC 59

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181. The Supreme Court used the case as a vehicle to affirm the principles

which the courts will apply when considering a claim that a relevant policy

has not been followed. The court highlighted the importance of a public

body's adherence to its own policies and held that a person should be able to

count upon the application of a relevant policy whether he or she knows of its

existence or not.

This is now a freestanding ground of judicial review in its own right, arising

directly from the principle of fairness, rather than being grounded, as previously,

in the doctrine of legitimate expectation.

182. In R (Tigere) v Secretary of State for Business, Innovation and Skills

the Supreme Court focused on whether it acceptable for a public authority to

adopt a 'blanket' (sometimes called 'bright line') policy which determines

eligibility for a benefit without the possibility of exercising discretion in an

individual case.92 Ms Tigere wanted to obtain a student loan in order to go to

university. She had lived in the UK since the age of six and was educated

here. However, the eligibility rules for student loans effectively denied them

to anyone who had only limited or discretionary leave to remain in the UK, as

Ms Tigere had. She argued that this breached her right to education under

Article 2, and discriminated against her contrary to Article 14, of the

European Convention on Human Rights.

183. The court stopped short of saying that bright line rules were unlawful.

Indeed, the majority recognised their value to good and efficient

administration. There would necessarily be hard cases which seemed to fall

on the wrong side of the line. But that did not mean they were arbitrary or

inappropriate. Bright line rules, for instance, allow hundreds of thousands of

student loan applications to be processed quickly. It would never be possible

to apply discretionary judgment to each one.

184. However, a 3:2 majority in this case considered the bright line policy

set by the government to have been disproportionate to the aim to be

achieved. Lady Hale (and Lord Kerr) added that it would have been more

likely to be proportionate if it had permitted discretion in exceptional cases.

So while bright line policies are permissible in principle, they may prove

harder to justify than those which allow for exceptions.

Public sector equalty duty

92 [2015] UKSC 57

65

185. In Hotak v Southwark LBC the Supreme Court considered s 149 and

Lord Neuberger stated that:93

The equality duty has been the subject of a number of valuable judgments in

the Court of Appeal. Explanations of what the duty involves have been given

by Dyson LJ (in relation to the equivalent provision in the Race Relations Act

1976 ) in Baker v Secretary of State for Communities and Local

Government,94 Wilson LJ (in relation to section 49A of the Disability

Discrimination Act 1995 , as inserted by section 3 of the Disability

Discrimination Act 2005 , the predecessor of section 149 of the 2010 Act) in

Pieretti v Enfield London Borough Council 95, and McCombe LJ in

Bracking v Secretary of State for Work and Pensions96 which pulls

together various dicta, most notably those of Elias LJ in R (Hurley) v

Secretary of State for Business, Innovation and Skills.97 I do not propose

to quote those passages in extenso: they are not challenged in these appeals,

and in my view, at least as at present advised, rightly so.

186. In Bracking v Secretary of State for Work and Pensions the appellants

appealed a decision upholding the Secretary of State's decision to close the

Independent Living Fund. The Claimants were people with disabilities who

used the fund. The Secretary of State had proposed to close the fund in 2015

on the basis that its existing arrangements were financially unsustainable. He

launched a consultation seeking the views of fund users and other interested

parties. Following the receipt of responses to the consultation, and following

the receipt of an equality impact assessment, a minister in the Secretary of

State's department, the Minister for Disabled People, decided to close the

fund.

187. McCombe LJ set out the relevant principles which he described as

uncontroversial.98

(1) As stated by Arden LJ in R(Elias) v Secretary of State for Defence

equality duties are an integral and important part of the mechanisms

for ensuring the fulfilment of the aims of anti-discrimination

legislation.99

(2) An important evidential element in the demonstration of the discharge

of the duty is the recording of the steps taken by the decision maker in

93 [2015] 2 WLR 1341 para 73 94 [2009] PTSR 809 , paras 30–31 95 [2011] PTSR 565 , paras 28 and 32. 96 [2014] Eq LR 60 , para 26 97 [2012] HRLR 374 , paras 77–78 and 89 98 [2013] EWCA Civ 1345 para 26 99 [2006] 1 WLR 3213 para 274

66

seeking to meet the statutory requirements: see R(BAPIO Action Ltd) v

Secretary of State for the Home Department.100

(3) The relevant duty is upon the Minister or other decision maker

personally. What matters is what he or she took into account and what

he or she knew. Thus, the Minister or decision maker cannot be taken

to know what his or her officials know or what may have been in the

minds of officials in proffering their advice: see R(National

Association of Health Stores) v Department of Health.101

(4) A Minister must assess the risk and extent of any adverse impact and

the ways in which such risk may be eliminated before the adoption of a

proposed policy and not merely as a “rearguard action”, following a

concluded decision: per Moses LJ, sitting as a Judge of the

Administrative Court, in Kaur & Shah v Ealing LBC.102

(5) These and other points were reviewed by Aikens LJ, giving the

judgment of the Divisional Court, in R (Brown) v Secretary of State for

Work and Pensions as follows:103

The public authority decision maker must be aware of the duty

to have “due regard” to the relevant matters;

The duty must be fulfilled before and at the time when a

particular policy is being considered;

The duty must be “exercised in substance, with rigour, and with an

open mind”. It is not a question of “ticking boxes”; while there is

no duty to make express reference to the regard paid to the

relevant duty, reference to it and to the relevant criteria reduces

the scope for argument;

The duty is non-delegable; and

Is a continuing one.

It is good practice for a decision maker to keep records

demonstrating consideration of the duty.

(6) “[G]eneral regard to issues of equality is not the same as having specific

regard, by way of conscious approach to the statutory criteria.” (per Davis J

(as he then was) in R (Meany) v Harlow DC104 approved by the Court

of Appeal in R (Bailey) v Brent LBC .105

(7) Officials reporting to or advising Ministers/other public authority

decision makers, on matters material to the discharge of the duty, must

100 [2007] EWHC 199 (QB) (Stanley Burnton J) 101 [2005] EWCA Civ 154 at paras 26 – 27 per Sedley LJ 102 [2008] EWHC 2062 (Admin) at [23 – 24] 103 [2008] EWHC 3158 (Admin) 104 [2009] EWHC 559 (Admin) para 84, 105 [2011] EWCA Civ 1586 at para 74-75

67

not merely tell the Minister/decision maker what he/she wants to hear

but they have to be “rigorous in both enquiring and reporting to them”: R

(Domb) v Hammersmith & Fulham LBC.106

(8) It is helpful to recall passages Elias LJ, in R(Hurley & Moore) v

Secretary of State for Business, Innovation and Skills as follows:107

Contrary to a submission advanced by [Counsel], I do not accept that

this means that it is for the court to determine whether appropriate weight has

been given to the duty. Provided the court is satisfied that there has been a

rigorous consideration of the duty, so that there is a proper appreciation of the

potential impact of the decision on equality objectives and the desirability of

promoting them, then as Dyson LJ in Baker (para [34]) made clear, it is for

the decision maker to decide how much weight should be given to the various

factors informing the decision.

The concept of “due regard‟ requires the court to ensure that there has

been a proper and conscientious focus on the statutory criteria, but if that is

done, the court cannot interfere with the decision simply because it would

have given greater weight to the equality implications of the decision than did

the decision maker. In short, the decision maker must be clear precisely what

the equality implications are when he puts them in the balance, and he must

recognise the desirability of achieving them, but ultimately it is for him to

decide what weight they should be given in the light of all relevant factors. If

Ms Mountfield‟s submissions on this point were correct, it would allow

unelected judges to review on substantive merits grounds almost all aspects of

public decision making ....

It108 is also alleged that the PSED in this case involves a duty of

inquiry. The submission is that the combination of the principles in Secretary

of State for Education and Science v Tameside Metropolitan Borough

Council109 and the duty of due regard under the statute requires public

authorities to be properly informed before taking a decision. If the relevant

material is not available, there will be a duty to acquire it and this will

frequently mean than some further consultation with appropriate groups is

required. [Counsel] referred to the following passage from the judgment of

Aikens LJ in Brown (para [85]):

„….the public authority concerned will, in our view, have to have due

regard to the need to take steps to gather relevant information in order

that it can properly take steps to take into account disabled persons‟

106 [2009] EWCA Civ 941 at para79 per Sedley LJ. 107 [2012] EWHC 201 (Admin) (Divisional Court) 108 Paras 89,90. 109 [1977] AC 1014

68

disabilities in the context of the particular function under

consideration.‟

I respectfully agree……..

188. In R(Logan) v London Borough of Havering the Claimant

challenged the Council’s council tax reduction scheme, alleging that it was

discriminatory contrary to art. 14 ECHR and that it was introduced

without regard to the public sector equality duty.110 The art. 14 challenge

failed. However, the PSED challenge succeeded.

189. The court held that the equality impact assessment conducted by

the Council was lawful. However, there was insufficient evidence that the

assessment had been taken into account by the decision makers. A report

setting out the proposals, and including the EIA, had been presented to

Cabinet. The cabinet then decided to recommend that the full Council

should take the decision to adopt the proposed scheme, which Council

did. However, the officers’ report to Cabinet (which included the EIA) was

not circulated to every member of the Council. There was evidence that at

least 19 councillors had actually received the officers' report. Another 20

had been alerted to its existence and been told it was available on the

website. However, this fell far short of showing that all members of the

Council (54 members) had had regard to the duty. Blake J said at [53]:

‘I accept the claimant's submissions that on the information now available to this

court due regard was not had by all members of the council or all who participated in

the decision to adopt the revised scheme. The cases of Bracking and Hunt emphasise

that due regard is not to be inferred, even where the decision maker was the Minister

for the Disabled and where a local authority had heard specific debate on the

adequacies of the EIA. There must be conscientious consideration of the impact of the

proposals on the relevant groups, whether by diligent reading of the EIA or some

other evidence based assessment. In my judgment, the EIA was adequate to enable

members who read it to have due regard to the PSED, but there was insufficient

evidence to indicate that the decision makers had accessed the EIA attached to the

officers' report or had understood the importance of reading it in order to discharge

their statutory obligation. It is not sufficient to assume that they could have done so

and therefore would have done so.’

Reasons

190. There is no general public law duty to give reasons for decisions, but

where they are given they must be adequate. Nzolameso v Westminster is a

110 [2015] EWHC 3193 (Admin)

69

judgment of the Supreme Court which adds to an understanding of what

adequacy requires and suggests a general strengthening of the duty.111 Ms

Nzolameso and her children had been living in expensive accommodation in

Westminster funded by housing benefit. Changes to the benefit system meant

that this was no longer affordable, triggering the duty of the local authority

under the Housing Act 1996 to find alternative accommodation. Given the

cost of housing in central London, and its limited resources, the authority

offered to accommodate her near Milton Keynes, an offer she rejected.

191. The reasons for this decision were limited and in standard form,

referencing finances and saying that all relevant considerations had been

taken into account. The court found them inadequate. Lady Hale said that it

'must be clear from the decision that proper consideration has been given to the

relevant matters', including precisely how the relevant provisions of statute

and departmental guidance had been taken into account. The essence of the

judgment is that the courts are not prepared to make assumptions in favour of

a public authority, and to infer that good reasons exist, in the absence of

evidence. To do so would 'immunise' decisions from judicial scrutiny.

Statements of reasons need to explain decisions in a level of detail sufficient to

demonstrate that the appropriate thought process has taken place.

The standard of review

192. R(Rotherham Metropolitan Borough Council v Secretary of State for

Business Innovation and Skills was the first of four cases in 2015 in which the

Supreme Court considered the standard of review that should be applied to

public authority decision-making.112 The case concerned the allocation within

the UK of EU Structural Funds. These funds, distributed in seven-year cycles,

support the most deprived regions of the EU. Because of the accession of

several new member states, the total funds available to the UK for 2014-2020

fell in comparison with the previous period. The government then shared out

the total pot unevenly, so that while some regions (Northern Ireland) received

only a 5% reduction in support, others (Merseyside and South Yorkshire)

were hit with a 61% funding cut. This raised classic judicial review issues,

including failure to treat like cases alike and having regard to irrelevant

considerations. The court split 4:3 in favour of the government. There was

agreement on the tests to be applied, but sharp differences on the appropriate

intensity of review. For the majority, this exemplified the category of cases in

which the courts should be cautious - complex, concerned with resource

allocation, essentially political. For the minority, although the government

111 [2015] UKSC 22 112 [2015] UKSC 6

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had a wide margin of discretion, that did not prevent close scrutiny of the

decision, which it could not withstand.

While the word is never once used in the judgments, the case is really about

deference. It marks the majority of a divided Supreme Court (led by Lord Sumption)

entering an essentially deferential phase, reflected in the outcome in all four cases.

193. In Pham v Secretary of State for the Home Department the immediate issue in

Pham was whether the government could make an order depriving Mr Pham of

citizenship and rendering him stateless.113 The Supreme Court declined to

express a view on whether deprivation of his UK citizenship also deprived him

of EU citizenship and, if so, whether this brought the case within the ambit of EU

law, meaning that the relevant standard for review was proportionality rather

than Wednesbury reasonableness. However, the court referred to its comments

in Kennedy regarding the flexibility of judicial review, particularly where

important rights are at stake. All four of the reasoned judgments questioned

whether there would be any difference in outcome in many cases, whether the

basis of the review was reasonableness or proportionality, and whether the latter

was grounded in EU law or the European Convention on Human Rights. The

case prefigured the fuller exploration of these issues in Lumsdon and Keyu (see

below).

194. However, the judgments contain important observations regarding the

availability of proportionality in common law, even absent human rights or

EU law grounds. For Lord Mance, proportionality review would be 'available

and valuable' at common law where a fundamental right was interfered with

and an intense form of scrutiny was required on judicial review. In Lord

Reed's view, legislation authorising significant interferences with important

rights should be interpreted as requiring that any interference should be

proportionate. Although obiter and leaving much to be clarified, these

comments do signal a direction of travel that is important in an environment

in which the government's commitment to the European Convention remains

doubtful.

195. In R (Lumsdon) v Legal Services Board the Supreme Court revisited

the issue of proportionality in Lumsdon - a challenge brought by four

criminal barristers to the Quality Assurance Scheme for Advocates

('QASA').114 The question before the court was whether the decision to

introduce the QASA was contrary to Regulation 14 of the Provisions of

Services Regulations 2009, which implemented the Provision of Services

Directive (2006/123/EC). Regulation 14 contains an express proportionality

113 [2015] UKSC 19 114 [2015] UKSC 41

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condition under which 'the need for an authorisation scheme' must be

'justified by an overriding reason relating to the public interest' where 'the

objective pursued cannot be attained by means of a less restrictive measure'.

196. The court unanimously concluded that the decision was proportionate,

but the interest in the case lies in the guidance it gave in relation to the test for

proportionality. Lords Reed and Toulson outlined in detail how the test is

multi-faceted, and will differ in subtle but important ways according to

whether the challenge is brought under domestic law, EU law or the

European Convention on Human Rights. Their taxonomy outlining the

appropriate test in each of these contexts will become the default point of

reference for proportionality. Whether the application of these different tests

will produce differences in outcome must be assessed in light of the court's

comments in Pham on the possible academic nature of such distinctions. It is

interesting to note that in Lumsdon the Supreme Court agreed with the

outcome reached by the Court of Appeal, even though the latter had applied

the wrong test.

197. Unfortunately, Keyu v Secretary of State for Foreign and

Commonwealth Affairs created further uncertainty.115 Some had hoped that

the Supreme Court in Keyu would confine traditional Wednesbury review to

the history books and declare its replacement with the proportionality

standard. In the event, it declined to do so. Lord Neuberger remarked that,

even if so minded, it would need a nine-member court (not the standard five

justices sitting in the case) to make so major a change.

198. In practice, the case further demonstrated the potentially academic

nature of the distinction between the tests. It related to a decision by the

government not to hold a public inquiry into an atrocity carried out by British

Forces in Malaya in 1947. Due to the time at which these events took place,

and other factors, the court was agreed that the European Convention on

Human Rights did not apply, so that the standard of review was

Wednesbury. By a 4:1 majority, the court held that the decision was not only

lawful on the Wednesbury standard, but would have remained so even on the

application of proportionality review. By contrast, in a robust dissenting

judgment, Lady Hale considered that the failure to hold an inquiry was

irrational even on a strict Wednesbury test.

199. Nothing better exemplifies the extent to which outcomes in judicial

review cases often turn less on the strict standard to be applied than on the

degrees of intensity of review and deference which a court chooses to bring to

115 [2015] UKSC 69

72

its analysis. In this respect, the Supreme Court ended the year in Keyu at the

same place where it began in Rotherham.

Practice and procedure

Standing

200. In the unreported case of Secretary of State for Education v National

Union of Teachers, the Secretary of State was granted standing to challenge

strike action proposed by sixth-form college teachers. The issue in this case

was that the cause of action (inducing breach of contract) against the Union

lay only with the employers of the striking teachers. Nevertheless, the Court

heard the application in the public interest. The Court recognised that the

Secretary of State had responsibility for sixth-form colleges. Furthermore, the

Secretary of State was found to have been the intended target of the strike and

the dispute could not be resolved without the intervention of the Secretary of

State.

Duty of candour – a reminder

201. The duty of candour was re-stated in Abraha v Secretary of State

for the Home Department.116 The Claimant challenged his detention

pending deportation. A key issue was the possibility of the Claimant being

returned to Eritrea, which depended on the availability of travel

documents. The Home Office had a copy of the Claimant’s Eritrean ID

card, and attempts were being made to verify its authenticity.

202. A witness statement from an officer at the Home Office described

the documentation which would be required by the Eritrean authorities

before they would issue travel documents. That statement gave the

impression that one form of ID (such as that which the Home Office had a

copy of) would be sufficient. However, the description in that statement

conflicted with the description given by the witness’s line manager in

another case concerning Eritrea. In the other case, the Home Office’s

evidence was that three forms of ID would be required by the authorities.

On that evidence, the prospect of the Claimant’s return was far less likely.

203. Singh J concluded that although there had been no intention to

mislead, there had been a failure to comply with the duty of candour. In

the course of his judgment Singh J reiterated what the duty demands:

116 [2015] EWHC 1980 (Admin)

73

… public law litigation must not be conducted in the same way that, for

example, private commercial litigation may properly be conducted. The task of

public authority defendants and, in particular, the central government, is not

to try to win a case at all costs, for example, by answering questions strictly

accurately but keeping its cards close to its chest otherwise. This is essential

for the maintenance of the rule of law in this country, something everyone can

take pride in, including the government. This is one respect in which the duty

of candour and cooperation is quite distinct from the duty of disclosure of

documents. As is well known, ordinary disclosure does not in fact apply to

judicial review proceedings. However, it is precisely for that reason that the

duty of candour and cooperation does. It is the task of those representing

public authority defendants to assist the court to understand fully the decision

making process under challenge. I would reiterate what is said in the Treasury

Solicitor's Guidance which, in turn, is based on well-established authority,

that the court must not be left guessing about some material aspect of the

decision making process.’

Declaratory relief

204. R(Licensed Taxi Drivers Association) v Transport for London

concerned the question of whether the East-West Cycle Superhighway

required planning permission.117 Patterson J’s judgment included some

important dicta, however, regarding the circumstances in which the

Administrative Court ought properly to grant a declaration. Following

R(Hunt) v North Somerset Council, it had been thought that a declaration

ought ordinarily to be granted whenever a court made a finding that a public

body had acted unlawfully but it was not appropriate to make a mandatory,

prohibitory or quashing order 118 However, Patterson J challenged this notion,

however, making clear that even if she had concluded that planning

permission had been required in this case, she would not have granted the

declaration sought. She was concerned at the prospect that a declaration by

the administrative court could have an inappropriate impact on the proper

decision-making body in a planning matter, namely the local planning

authority.

205. Furthermore, the Court was mindful of the impact of section 31(6) of

the Senior Courts Act 1981 which provides that, in the event of undue delay

117 [2016] EWHC 233 (Admin) 118 [2015] UKSC 51

74

arising in the claim being issued, the court should refuse to grant the relief

sought where that relief would be likely to be detrimental to good

administration.

Protective Costs Orders

206. In Howard v Wigan Council the Defendant local authority sought to

vary a protective costs order in a failed planning judicial review.119 The

Claimants had initially had their costs liability capped at £5,000. During the

course of the proceedings, a second claim was added which also failed.

Initially the PCO was extended to cover the second claim but, on application

by the Council, Supperstone J varied the Order allowing the Defendant to

recover £10,000, representing £5,000 for each of the claims brought.

Permission – totally without merit

207. In W v Secretary of State for the Home Department120, the Court of

Appeal provided guidance regarding the circumstances in which applications

for permission to seek judicial review should be marked totally without merit.

The court confirmed that totally without merit applications are properly to be

considered as a sub-set of applications in which permission is refused. The

focus ought properly to be on whether any residual value could be gained

from an oral permission hearing. The application should be marked as totally

without merit if the court was satisfied that an oral permission hearing would

offer no real opportunity for the claimant to address the perceived

weaknesses in the claim. Specifically, a matter should not be marked as totally

without merit on the basis of points raised in the acknowledgment of service

to which the Claimant might have had an answer if given an opportunity.

PUBLIC PROCUREMENT

Application to strike out

208. In R(Hersi) v Legal Services Commission Kerr J decided not strike out

a judicial review claim regarding a rejected tender for a legal services contract,

as the delay in having it listed did not amount to an abuse of process, and it

was not bound to fail.121 As the contract at issue had expired and the

119 [2015] EWHC 3643 (Admin) 120 [2016] EWCA Civ 82 121 2 March 2016

75

remaining relief sought was damages, the case was transferred from the

Administrative Court to the Technology and Construction Court.

Automatic stays

209. In Openview Securities v Merton LBC Stuart-Smith J set aside the

automatic suspension of a local authority's procurement process for an

upgraded traffic monitoring system, imposed following a tendering

company's issuance of proceedings regarding the process, was set aside.122 An

interim order maintaining the suspension was not appropriate where

damages would be an adequate remedy for either party and the balance of

convenience did not favour either one.

210. In Counted4 Community Interest v Sutherland CC Carr J refused an

application to lift an automatic suspension on a local authority under Reg

96(1) of the Public Contracts Regulations 2015 that had come into being when

a tenderer challenged the local authority's award of a contract for the

provision of substance misuse treatment and harm reduction services to

another tenderer.123 Carr J held that in considering whether to lift the

suspension under Reg 96, the American Cyanamid principles in considering

whether to grant interim relief were applicable, that was, it had to be

determined whether there was a serious issue to be tried, and whether

damages would be an inadequate remedy.124 The exercise was not weighted in

favour of maintaining the suspension and the court would lift the suspension

unless it was otherwise appropriate to grant interim relief. The test had two

stages:

firstly, to identify whether there was a serious issue to be tried, and

secondly, whether on the balance of convenience it ought to be

granted;

the adequacy of damages was considered at the second stage.125

considered.

There was a serious issue to be tried in relation to the potential conflict of

interest: Reg 24 was relatively new and there was no relevant authority to

date. It was not only arguable that the local authority had failed to identify a

conflict of interest in allowing the particular member to be on the panel; that

could be perceived as having compromised the panel's partiality. The

claimant’s complaint of errors and unfairness in the scoring process was also

122 [2015] EWHC 2694 (TCC) 123 [2015] EWHC 3898 (TCC) 124 American Cyanamid Co v Ethicon Ltd (No.1) [1975] A.C. 396 125 NATS (Services) Ltd v Gatwick Airport Ltd [2014] EWHC 3133 (TCC), Bristol Missing Link Ltd v

Bristol City Council [2015] EWHC 876 (TCC), and National Commercial Bank Jamaica Ltd v Olint

Corp Ltd [2009] 1 WLR 1405

76

not hopeless, frivolous or vexatious; it was necessary to consider each method

statement question and what score would have been given in the

circumstances. The issue of causation was difficult to assess. For those

reasons, and as full disclosure had not yet taken place, there was a serious

issue to be tried. However, although there was a serious issue to be tried, it

was neither so strong nor so weak that it was a material factor: rather, it was

neutral in effect.

211. The claim to damages was readily calculable; it could be calculable on

the basis of the loss of a chance.. However, that was not the essence of the

claimant's position: if the suspension were to be lifted then the workforce

would be lost and it would take years to develop skills that were not available

in the wider market. Carr J had sympathy with the claimant's position:

although there was no evidence that the local authority would suffer any loss,

and C was a not-for-profit organisation, giving a cross-undertaking was

standard if not commonplace. Carr J acknowledged that there was no dispute

that public interest was an important factor in the balance of convenience.126

There was a public interest in the local authority complying with EU

legislation.127 The current service did not create such a risk to the users of the

service that the public interest outweighed the prejudice to the claimant if the

suspension were lifted: there was no suggestion that the service was in a

desperate situation; on the local authority's case, there had been problems

with the service for two years and there had been no need for immediate

action. From a public interest viewpoint, protection and support for service

users was currently in place, and the service was "less than ideal" at worst. A

further delay of two to three months in the lead up to trial could not sensibly

be said to be critical and the risk of staff leaving was not great. Considering all

of the factors together, on the balance of convenience, Carr J decided the

automatic suspension should not be lifted, but it should rather continue until

trial on the terms of the limited undertaking the claimant had offered.

Contractual variations

212. Reg 72 of the 2015 Regulations now explicitly covers contractual

variations and states:

(1) Contracts and framework agreements may be modified without a new

procurement procedure in accordance with this Part in any of the following

cases:—

126 Alstom Transport v Eurostar International Ltd [2011] Eu. L.R. 229 and Solent NHS Trust v

Hampshire CC [2015] EWHC 457 (TCC) 127 Covanta Energy Ltd v Merseyside Waste Disposal Authority [2013] EWHC 2922 (TCC)

77

(a) where the modifications, irrespective of their monetary value, have

been provided for in the initial procurement documents in clear,

precise and unequivocal review clauses, which may include price

revision clauses or options, provided that such clauses—

(i) state the scope and nature of possible modifications or

options as well as the conditions under which they may be

used, and

(ii) do not provide for modifications or options that would alter

the overall nature of the contract or the framework agreement;

(b) for additional works, services or supplies by the original contractor

that have become necessary and were not included in the initial

procurement, where a change of contractor—

(i) cannot be made for economic or technical reasons such as

requirements of interchangeability or interoperability with

existing equipment, services or installations procured under

the initial procurement, or

(ii) would cause significant inconvenience or substantial

duplication of costs for the contracting authority,

provided that any increase in price does not exceed 50% of the

value of the original contract;

(c) where all of the following conditions are fulfilled:—

(i) the need for modification has been brought about by

circumstances which a diligent contracting authority could not

have foreseen;

(ii) the modification does not alter the overall nature of the

contract;

(iii) any increase in price does not exceed 50% of the value of

the original contract or framework agreement.

(d) where a new contractor replaces the one to which the contracting

authority had initially awarded the contract as a consequence of—

(i) an unequivocal review clause or option in conformity with

sub-paragraph (a), or

(ii) universal or partial succession into the position of the

initial contractor, following corporate restructuring, including

takeover, merger, acquisition or insolvency, of another

economic operator that fulfils the criteria for qualitative

selection initially established, provided that this does not entail

other substantial modifications to the contract and is not aimed

at circumventing the application of this Part;

(e) where the modifications, irrespective of their value, are not

substantial within the meaning of paragraph (8); or

(f) where paragraph (5) applies.

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(2) Where several successive modifications are made:—

(a) the limitations imposed by the proviso at the end of paragraph

(1)(b) and by paragraph (c)(iii) shall apply to the value of each

modification; and

(b) such successive modifications shall not be aimed at circumventing

this Part.

(3) Contracting authorities which have modified a contract in either of the

cases described in paragraph (1)(b) and (c) shall send a notice to that effect, in

accordance with regulation 51, for publication.

(4) Such a notice shall contain the information set out in part G of Annex 5 to

the Public Contracts Directive.

(5) This paragraph applies where the value of the modification is below both of

the following values:—

(a) the relevant threshold mentioned in regulation 5, and

(b) 10% of the initial contract value for service and supply contracts

and 15% of the initial contract value for works contracts,

provided that the modification does not alter the overall nature of the contract

or framework agreement.

(6) For the purposes of paragraph (5), where several successive modifications

are made, the value shall be the net cumulative value of the successive

modifications.

(7) For the purpose of the calculation of—

(a) the price mentioned in paragraph (1)(b) and (c), and

(b) the values mentioned in paragraph (5)(b),

the updated figure shall be the reference figure when the contract includes an

indexation clause.

(8) A modification of a contract or a framework agreement during its term

shall be considered substantial for the purposes of paragraph (1)(e) where one

or more of the following conditions is met:—

(a) the modification renders the contract or the framework agreement

materially different in character from the one initially concluded;

(b) the modification introduces conditions which, had they been part of

the initial procurement procedure, would have—

(i) allowed for the admission of other candidates than those

initially selected,

(ii) allowed for the acceptance of a tender other than that

originally accepted, or

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(iii) attracted additional participants in the procurement

procedure;

(c) the modification changes the economic balance of the contract or the

framework agreement in favour of the contractor in a manner which

was not provided for in the initial contract or framework agreement;

(d) the modification extends the scope of the contract or framework

agreement considerably;

(e) a new contractor replaces the one to which the contracting

authority had initially awarded the contract in cases other than those

provided for in paragraph (1)(d).

(9) A new procurement procedure in accordance with this Part shall be

required for modifications of the provisions of a public contract or a framework

agreement during its term other than those provided for in this regulation.

The Supreme Court decision in Edenred

213. On 1 July 2015 in Edenred v HM Treasury the Supreme Court

specifically considered the impact of Reg 72.128 The case concerned a non-

ministerial government department offered retail savings and investment

products to United Kingdom customers and provided support functions to

other public bodies. From 1999 it outsourced its operational services to

private sector providers and in 2014 entered into a contract with Atos,

following a procurement process which complied with the requirements of

European Union law. The services provided by Atos included customer

service, transaction management, printing, accounting and IT development

and management. In July 2014 on the advice of HMRC the Government

decided to use the non-ministerial government department to deliver its tax-

free childcare scheme, which was designed to replace the existing scheme of

employer-supported childcare. The Treasury allocated money to the HMRC

to administer the scheme. The arrangements between for its delivery were set

out in a memorandum of understanding setting out the HMRC’s

requirements, and the non-ministerial government department proposed to

modify its existing contract with Atos to include the services necessary to

meet those requirements. The claimants, the provider of services under the

earlier scheme and a trade association for providers of childcare vouchers,

began proceedings against the defendants, the Treasury, HMRC and the non-

ministerial government department, claiming that the proposed modification

of the existing contract to Atos would be substantial in breach of the EU

Directive as implemented by the 2015 Regulations, particularly Reg 72.

128 [2015] UKSC 45

80

214. The Supreme Court therefore held that a fresh procurement was not

required where the modification was not substantial, within the meaning of

Reg 72(1)(e) and (8); and that the prohibition in regulation 72(8)(d) on

modifying a contract to encompass services not initially covered did not

prohibit modification which extended the contract services beyond the level

of services initially provided for if the advertised initial contract and related

procurement documents envisaged such expansion, committed the economic

operator to it and required it to have the resources to do so. When assessing

that issue the Court had to look at the advertisement notice, the other

procurement documents and the invitation to tender in order to ascertain the

nature, scale and scope of the operational services that the contract was set up

to provide. The Supreme Court found that that the procurement process in

respect of the original contract with Atos was to provide the non-ministerial

government department with operational services that would enable it to

perform its established functions and to expand its B2B services; that the

proposed modification did not, therefore, alter the economic balance of the

contract or increase the profit margin to Atos; that the proposed amendment

to enable the non-ministerial government department to provide the TFC

services would not considerably extend the scope of that contract in terms of

regulation 72(8) ; and that, accordingly, no substantial modification, in terms

of regulation 72(1)(e) of the 2015 Regulations, was involved

215. Lord Hodge also made some important observations concerning Reg

72(1)(a), which follows the wording of Article 72(1)(a) of the 2014 Directive:

“Contracts and framework agreements may be modified without a new

procurement procedure in accordance with this Part in any of the following

cases: (a) where the modifications, irrespective of their monetary value, have

been provided for in the initial procurement documents in clear, precise and

unequivocal review clauses, which may include price revision clauses or

options, provided that such clauses— (i) state the scope and nature of possible

modifications or options as well as the conditions under which they may be

used, and (ii) do not provide for modifications or options that would alter the

overall nature of the contract or the framework agreement …”

216. Lord Hodge pointed out that:

39 …. The regulation appears to draw on Commission of the European

Communities v CAS Succhi di Fruitta (Case C-496/99P) [2004] ECR I-

3801 , in particular at paras 111 and 118. But it is not simply a codification of

prior CJEU case law.

40 There are four matters in this regulation which merit comment. First, as in

regulation 72(1) (e), the monetary value of the modifications is irrelevant.

Secondly, the modifications must have been provided for in “the initial

81

procurement documents”. Thirdly, the review clauses which authorise the

modifications must achieve a required degree of specificity. Fourthly, the

review clauses cannot authorise modifications that would alter the overall

nature of the contract.

41 No more need be said about the first matter. In relation to the third matter,

it seems to me that where, as in this case, the contracting authority has

adopted the competitive dialogue procedure under regulation 18 of the 2006

Regulations (or now regulation 30 of the 2015 Regulations), the initial

procurement documents include the documents which were issued to the

selected bidders. The definition of “procurement document” in regulation 2 of

the 2015 Regulations includes the proposed conditions of contract and the

epithet “initial” in regulation 72(1)(a) is in my view simply a reference to the

procurement documents which were available in the initial procurement of the

contract which is the subject of the modifications. The fourth matter, the

requirement that the overall nature of the contract is not altered, which is a

formula used also in regulation 72(1)(c) and 72(5) , appears as a matter of

language to be a more liberal test than the test in regulation 72(8)(d) of

extending considerably the scope of the contract. But the two tests could

overlap if the extension of scope was of such an extent that it altered the

overall nature of the contract.

42 In my view the most significant restriction in this regulation is the degree

of specification that it requires in the review clause. The formula, “clear

precise and unequivocal” reflects the jurisprudence of the CJEU on what the

principle of transparency requires: CAS Succhi di Frutta at para 111.

43 The Court of Appeal held that the contract amendment provisions in the

draft contract which NS&I gave the three bidders and which ultimately

appeared in the Atos contract were sufficiently clear, precise and unequivocal

when construed in their context. The contract envisaged the extension of the

operational services which Atos provides to NS&I to enable it to expand its

B2B services to other public bodies. The restrictions in schedule 2.11 of the

Atos contract (a) confined the B2B opportunities to those within the scope of

the OJEU notice and (b) set out the principles that governed the incorporation

of a new B2B service into the agreement, inter alia restricting any increase in

Atos's profit margin and prohibiting the alteration of the allocation of risk. See

para 13 above. I incline to the view that these restrictions, in their contractual

context were sufficiently defined to meet this regulation 72(1)(a) criterion.

44 But the nature of the review clauses which the regulation covers is open to

debate. Recital (111) of the 2014 Directive states:

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“Contracting authorities should, in the individual contracts

themselves, have the possibility to provide for modifications to a

contract by way of review or option clauses, but such clauses should

not give them unlimited discretion. This Directive should therefore set

out to what extent modifications may be provided for in the initial

contract. It should consequently be clarified that sufficiently clearly

drafted review or option clauses may for instance provide for price

indexations or ensure that, for example, communications equipment to

be delivered over a given period continues to be suitable, also in the

case of changing communications protocols or other technological

changes. It should be possible under sufficiently clear clauses to

provide for adaptations of the contract which are rendered necessary by

technical difficulties which have appeared during operation or

maintenance. It should also be recalled that contracts could, for

instance, include both ordinary maintenance as well as provide for

extraordinary maintenance interventions that might become necessary

in order to ensure continuation of a public service.”

The recital gives as examples of the envisaged review clauses provisions

allowing for price indexation, or adjustments for technological change and for

maintenance. Those examples are not exclusive but they may indicate the

general nature of the modifications that regulation 72(1)(a) envisages. It seems

clear from the CJEU's judgment in CAS Succhi di Frutta at para 126 that

the regulation would extend to a provision or clause such as for the

substitution of fruit which was in issue in that case. The regulation also

requires specification of the scope and nature of possible modifications and the

conditions under which they may be used.

45 I am not persuaded that the nature of the review clauses is “acte clair”.

But, for the reasons already set out, it is not necessary to decide these matters

in order to determine the appeal.

Manifest errors

217. In Wood Building Services v Milton Keynes Council Coulson J held that the

local authority had breached the Public Contracts Regulations 2006 by making

manifest errors in its evaluation of two tenders, and by breaching the duties

of transparency and equal treatment.129 Some of the scores it had awarded for

the tenders were incapable of rational explanation.

129 [2015] EWHC 2011 (TCC)

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The entitlement to damages

218. In Energy Solutions v Nuclear Decommissioning Authority the Court

of Appeal held that issuing proceedings under the standstill provisions of the

Public Contracts Regulations 2006, Reg 47C was not a pre-condition to the

availability of damages for unsuccessful tenderers in public procurement

processes.130 Furthermore, the English courts had no discretion about whether

to award damages to unsuccessful tenderers who were shown to have

suffered loss as a result of public authorities' breaches of duty under those

Regulations.

219. In Wood Building Services v Milton Keynes Council Coulson J held

that, following a decision that a local authority tender process had been

fundamentally flawed, it would be inappropriate to order the local authority

to enter into a contract with the party that should have won.131 The

appropriate remedy was damages to be assessed after the tender process had

been re-run.

Termination of contract

220. In BT Cornwall v Cornwall CC a service provider sought an injunction

to prevent the local authority terminating the contract. 132 However, Knowles J

decided that a local authority which had entered into an agreement for the

provision of telecommunications services was entitled to terminate that

agreement for material breach of its terms where the service provider had

failed to meet key performance indicators and had allowed a backlog of work

to accrue. The local authority's willingness to engage with the service

provider towards resolving the issues was not to be relied on as a basis for an

estoppel argument. In July 2013 an agreement was made which covered

services such as health, transport, communications and public safety. It also

provided for the creation of new jobs for local residents. The agreement

contained a clause entitling the local authority to waive key performance

indicator scores resulting from service failures if it was satisfied that a

remedial plan was in place. There were substantial problems with

performance and a number of key performance indicators fell consistently

below target level. A backlog of work accrued. In February 2015, the parties

established an executive forum aimed at resolving the issues. In June 2015,

130 [2015] EWCA Civ 1262 131 [2015] EWHC 2172 (TCC) 132 [2015] EWHC 3755 (Comm)

84

however, the local authority stated its intention to terminate the agreement

for material breach. It also claimed that the service provider's failure to meet

its annual jobs guarantee gave rise to an obligation to provide a remediation

plan, which it had failed to do. The service provider claimed that a large

number of faults had been caused by the local authority. It also claimed that a

separate agreement had been entered into for the backlog to be cleared, with

the implication that the key performance indicator results which fell below

breach level would not be used to justify termination, and that the local

authority was in any event estopped from relying on breaches of those

indicators from February to April 2015 in terminating for material breach.

221. Knowles J held that the failure to create new jobs resulted at least in

part from the local authority's failure to secure a health contract, which would

have accounted for 70 new jobs. There was no contractual requirement for a

remediation plan so that the service provider was not in breach of the

agreement. There was no evidence that the waiver clause in the agreement

had been exercised, nor was there any reason to imply a waiver. There was

no written record of any agreement concerning the backlog, nor any mention

of such an agreement in contemporaneous documents. Even without the

backlog, the service provider's performance would have been in breach for

March and April 2015. Moreover, the service provider was already

contractually obliged to resolve the backlog and was not entitled to protection

from the consequences of its failure to do so. It was arguable whether the

executive forum, which came into existence after the agreement was made,

would have had authority to agree a legally binding amendment to the

agreement such as the putative backlog agreement. There was evidence that

the local authority was aware by shortly after 8 April 2015 that the service

provider was in breach of its key performance indicators for March 2015, and

by shortly after 13 May that it was in breach for April 2015. Therefore, there

was no basis for a case on estoppel or affirmation. The fact that the local

authority was prepared to engage with the executive forum and to work

collaboratively with the service provider was not to be held against it and did

not signal that it would refrain from taking action under the agreement. There

had been no material delay on the local authority's part, and neither its

actions nor the passage of time were to be taken as an election not to

terminate for material breach. The service provider had failed to provide the

service it had promised to the required standard. There was no capriciousness

or bad faith on the local authority's part in expecting it to clear the backlog or

take the contractual consequences if doing so resulted in further breaches of

the key performance indicators. Accordingly, the service provider was in

breach of the agreement such as to justify termination. It followed that the

service provider was not entitled to the injunction it sought.

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8 April 2016