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Queen’s Speech 2015 – legislative update

Craig Elder 2 – 6

Part 36 and costs

Nichola Evans 7 – 10

Homelessness and the role of local housing authorities – is a perfect storm brewing?

Angela Konteas

11 – 14

Frameworks: what’s changed?

Anja Beriro 15 – 16

Devolution deals: elected mayors

Emma Graham 17 – 20

Cities and Local Government Devolution Bill – the key facts

Angelica Gavin 21 – 23

Town and village greens – is it a walk in the park?

Kassra Powles 24 – 27

Extending Right to Buy

Stephen Matthew 28 – 29

Whistleblowing – the meaning of 'in the public interest'

Gemma Steele 30 – 31

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Last month we looked at the contents of the Conservative party manifesto, and its implications for local

authorities, following the largely unexpected return of a majority government we now turn to the recent

Queen’s Speech, which seeks to implement a conservative majority programme for the first time in nearly

twenty years.

Housing and planning

Following the pledge to create more homes and increase local powers over planning decisions, as well as the

controversial commitment to extend Right to Buy to tenants of Housing Associations, details of a new

Housing Bill have been set out. This will include the Right to Buy extension, and a requirement on local

authorities to dispose of ‘high value’ vacant homes in their areas both to fund the new Right to Buy, and to

replace the overall stock of social housing.

The ‘necessary statutory framework’ to ‘support the delivery of Starter Homes’ will also be introduced, as

will the ‘Right to Build’. Planning authorities will be required to identify land available to registered self-

builders to build or commission custom homes.

The Housing Bill will also introduce a register of brownfield land, aiming to have 90% of such land subject to

a Local Development Order by 2020. Planning will also be “simplified and speeded up”, to support

communities that seek to meet local planning and other development needs.

Many will welcome any proposed framework that facilitates an increase in the supply of homes. However,

critics of the Right to Buy extension (including the Local Government Association and Town and Country

Planning Association) will be concerned that this policy pulls in the other direction, reducing the overall pool

of social housing. They have called, instead, for an increase in the borrowing cap on council’s housing

revenue accounts, and a more streamlined compulsory purchase order regime, neither of which was

mentioned in the Queen’s Speech. The details of the Housing Bill are likely to be closely scrutinised, and

may prove one of the more controversial aspects of the government’s programme.

One pledge which the Queen’s Speech and the Housing Bill has failed to make express provision for is the

offer of a 10% stake in all ‘public sector land’ sales in a local authority’s area. It was unclear, from the

manifesto, how this would be implemented and we await future legislation to see how (if at all) this will be

taken forward.

The legislation will cover England and Wales, but with application in Wales a decision for the Welsh

Government. The provisions in relation to planning will apply only to England.

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An Energy Bill will also seek to devolve planning decisions for onshore wind from Whitehall to local

authorities, with matching changes to the National Planning Policy Framework to meet the manifesto

commitment to put these decisions in the hands of communities.

The Energy Bill provisions on planning for onshore wind will apply only in England, with the government to

consider how it might apply to Wales in light of the St David’s day process. Other changes to planning

legislation will apply only to England. Other elements of the Housing Bill will apply to England and Wales,

but its application in Wales is a matter devolved to the Welsh Government.

Local government and public services

The manifesto did not contain a specific programme for local government, but the Enterprise Bill does

contain a commitment to reform business rate appeals, including allowing the Valuation Tribunal to consider

rate payers’ appeals. The Valuation Office Agency will also be allowed to share information with local

authorities, with the intention of making the system more efficient for both councils and ratepayers.

The Bill will also seek renewed impetus for the drive to ‘deregulation’, requiring regulators to report on

compliance with better regulation requirements. To the extent that local authorities act as regulators, and

depending on the precise content of the Bill, this may have an impact at local government level.

A Public Service Ombudsman Bill will also create an overarching ombudsman that will incorporate the

functions of the health service, local government and, potentially, the Housing Ombudsman Service. The aim

is to ensure a single tier of redress for users of public services, with a robust body directly accountable to

parliament, and identify issues with public services and appropriate solutions.

A cap on exit payments for public sector workers to end ‘six figure payoffs’ will also be introduced.

The Enterprise Bill will apply throughout the UK, with central government “engagement” with devolved

administrations where necessary in relation to specific functions.

The Childcare Bill will increase entitlement to 30 hours a week of free childcare (38 weeks of the year) for

working parents of three and four year olds. In addition, it will require English local authorities to publish

information about the provision of childcare, and “other services which might be of benefit to parents or

prospective parents” in their area.

The Education and Adoption Bill may have indirect consequences for local government. Firstly, there will be

Regional Schools Commissioners with enhanced powers to introduce additional leadership to failing schools,

and a swifter process of ‘academisation’ for schools which are struggling or merely ‘coasting’. The definition

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of ‘coasting’ is yet to be set out, but will include a number of factors and has the potential to apply to

schools that would in no way be deemed failing. As a result of these measures, it seems clear that an

increasing number of students will attend schools outside of local authority control or oversight.

Secondly, the Bill will give the Secretary of State power to compel local authorities to have various adoption

functions (including recruitment and assessment of adopters, decisions on adoption, and adoption support)

carried out by other authorities or third party agencies. In practice, this is likely to mean the creation of

regional adoption agencies.

The Education and Adoption Bill will apply in England only.

The manifesto referred to strengthening of mutualisation and social impact bonds. The way in which this

might be achieved is not set out in detail in the Queen’s Speech. However the Charities (Protection and

Social Investment) Bill does refer to the ability of charities in England and Wales to undertake social

investment more easily in a way which furthers their charitable purposes and delivers a return on their

investment.

Interestingly, there are no specific proposals in relation to replacement of the Human Rights Act but the

Queen’s Speech does contain a commitment to bring forward these proposals. The devil of this will of course

be in the detail and until (and if) more concrete proposals are brought forward it is difficult to understand

how the impact that repeal could have on local authorities.

Crime and justice

The Extremism Bill, one of the more controversial in the government programme, also touches on local

authorities. It will create a new power for local authorities to close down “premises used for extremism”.

How this will be defined, and the precise form this will take, will be awaited with interest.

The Policing and Criminal Justice Bill concerns, for the most part, matters at a national level. However there

is also reference to sanctions for professionals who fail to take action on child abuse where it is a

professional responsibility to do so. This element of the Bill is specifically noted to be subject to

consultation, but ultimately could be of relevance to those local authority employees working in the field of

child protection. The Bill applies to England and Wales only.

The Psychoactive Substances Bill also refers to the provision of civil sanctions for the supply of “new

psychoactive substances” to allow local authorities in the UK to adopt a proportionate response.

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Devolution

The government has signalled intent to support the NHS in its “long-term plan” to link health and social

care. These proposals, should they come to fruition, will have a profound impact on the way in which social

care services will be delivered. Though for the time being, and in the Queen’s Speech at least, little detail is

provided.

However, integration of health and social care is a key part of the Manchester settlement, and the Cities and

Local Government Devolution Bill is the perhaps the most eye-catching element of the new legislative

programme for local authorities in England.

The Bill will provide the legislative framework to deliver the Manchester deal, and other similar settlements

for other cities (and specifically combined authorities) which choose to have elected mayors “and in other

places”. The Chancellor has previously been very clear that devolved powers require directly elected,

political accountability. Some local authorities, who feel that a one size fits all metro mayor model is not for

them see the requirement for a mayor as a serious impediment on the path to devolution, will be hoping for

some wriggle room in this requirement as the deals begin to be discussed in detail.

Powers will be specific to each deal, but the Bill contemplates that mayors will assume the functions of

Police and Crime Commissioners, removes the statutory limitations on the power of mayors (which are

currently limited to economic development, regeneration and transport) and enables local authority

governance to be “streamlined” as agreed in each case.

There is an additional Buses Bill that will provide for combined authorities with directly elected mayors to

assume responsibility for running local bus services.

The Bill may therefore form more of an enabling framework than a set of specific arrangements, the latter

to be agreed on a case by case basis. However, the shifts in policy signalled by the Bill do have the potential

to establish a level of devolution to cities and regions which would have been unthinkable under recent

administrations.

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The Conservatives have committed to implementing their manifesto “in full”. And, despite some notable

omissions (for this Queen’s Speech at least) and some sketchy areas which await development, the intended

legislative programme does largely track the manifesto commitments. Of course, the progress of the Queen’s

Speech into law will be closely monitored, as much of its impact will be determined by the detail and

implementation. Given the narrow commons majority and opposition to some proposals in the House of Lords

(as currently composed), the government’s greatest challenges no doubt lie ahead.

Craig Elder | +44 (0)115 976 6089 | Craig.Elder@brownejacobson.com

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Most case law in relation to Part 36 has dealt with the substantive issues in cases rather than costs. However

on 11 May 2015 Mrs Justice Slade handed down judgment in the case of Cashman v Mid Essex Hospital

Services NHS Trust [2015] EWHC 1312 QB which demonstrates how the use of a Part 36 offer can drastically

change the amount of costs the paying party has to pay. It also means that lawyers need to be much more

nimble when dealing with questions of costs and be more pro-active in trying to settle costs.

The facts

The case in point was a claim in relation to clinical negligence. It related to the fatal treatment of the

claimant’s wife.

Agreement was reached whereby the claimant was to receive £90,000 damages with costs to be assessed on

the standard basis if not agreed.

The claimant’s solicitor submitted a bill of costs at £262,000. This was followed up a few weeks later with a

Part 36 offer in relation to those costs of £152,000. At the detailed assessment some seven months later the

claimant’s solicitor’s costs were assessed at £173,693.78, which was clearly a significant reduction on the

bill as drawn.

As part of the hearing the Costs Judge was obliged to consider Part 36 of the CPR and the then provision of

CPR 36.14 on the ground that the claimant had beaten the Part 36 offer made in relation to the costs.

This meant that under the Rules the receiving party was entitled to a ‘bonus’ unless the judge felt it was

‘unjust’ which consisted of the following:

1. Under CPR 36.14(3)(a), interest on the Bill of Costs at 10.5%

2. Under CPR 36.14(3)(b), costs of the detailed assessment on the indemnity basis

3. Under CPR 36.14(3)(c) interest on the costs of detailed assessment at 10.5%

4. 10% uplift in terms of the costs recovered.

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The decision at first instance

Master Gordon-Saker declined to order the payment of these additional sums of money. He said:

“5. … in my judgment it would be unjust to require the defendant to pay an additional amount, which in

this case would be 10% of the costs which have been allowed, so a figure of about £17,000."

He went on to say:

"6. I think costs have to be treated slightly differently to judgments. Generally, the only issue on detailed

assessment is how much. Had the rule permitted me to allow a figure fixed by applying the prescribed

percentage to the difference between the sum which the claimant offered to accept and the sum which was

allowed, then I think that may have been a just result, but that is not what the rule anticipates. In

circumstances where there has been a significant reduction in the claimant's bill, it seems to me that it

would be unjust to reward the claimant with an additional amount prescribed by 36.14(3)(d)."

Therefore although he accepted that Part 36 applied to the assessment procedure, he felt that costs ought

to be treated differently.

The claimant felt that Master Gordon-Saker had misapplied the law and appealed.

The appeal

Mrs Justice Slade noted that Part 36 applied to cost proceedings (CPR 47.20). In addition to the interest and

cost provisions she sets out the provisions of CPR 36.14(3) which states:

(3) Subject to paragraph (6), where rule 36.14(1)(b) applies, the court will, unless it considers it

unjust to do so, order that the claimant is entitled to –

… (d) an additional amount, which shall not exceed £75,000, calculated by applying the

prescribed percentage set out below to an amount which is –

(i) where the claim is or includes a money claim, the sum awarded to the claimant by the

court; or

(ii) where the claim is only a non-monetary claim, the sum awarded to the claimant by the

court in respect of costs -

Amount awarded by the court Prescribed percentage

up to £500,000 10% of the amount awarded;

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When considering this provision and whether it would be unjust to award the uplift the court must consider:

“(a) the terms of any Part 36 offer;

(b) the stage in the proceedings when any Part 36 offer was made, including in particular how long

before the trial started the offer was made;

(c) the information available to the parties at the time when the Part 36 offer was made; and

(d) the conduct of the parties with regard to the giving or refusing to give information for the

purposes of enabling the offer to be made or evaluated."

Mrs Justice Slade noted that the Jackson report recommended changes to Part 36 because "the claimant was

insufficiently rewarded and the defendant insufficiently penalised when the claimant has made an

adequate offer." The report strongly supports the early resolution of matters and the use of the tools

available that allow that to happen. Therefore she went on to say that “CPR 36.14(3)(d) represents a

significant change from the previous costs regime. The rule was introduced not only to provide an incentive

to a claimant to make a timely realistic Part 36 offer but also to penalise a defendant for not accepting

such an offer.”

She therefore held that the award ought to be made unless it was unjust to do so and that all the factors

listed in CPR 36.14 had to be considered. The Master had not considered those factors. Further, the court

did not have a discretion as to whether an order under each sub paragraph ought to be made.

She concluded:

“The reason given by the Master for holding that it would be unjust to 'reward' the Claimant with the

additional amount prescribed by CPR 36.14(3)(d) was the size of the additional award. The Master

considered that had the rule permitted him to award a figure fixed by applying the prescribed percentage

to the difference between the sum which the Claimant offered to accept and the sum which was allowed on

assessment, that may have been a just result. The reason the Master held it to be unjust to make the

additional award was because there was a significant reduction to the Claimant's bill of costs. The approach

adopted by the Master penalises the Claimant for making what turned out to be a reasonable Part 36 offer.

It is the terms of the Part 36 offer not the level of the sums claimed in the bill of costs which are to be

considered under CPR 36.14(4).”

The net result of the judgment of Mrs Justice Slade was that the claimant was awarded a ‘bonus’ of just over

£17,000 of costs, in addition to the costs of the assessment proceedings and the enhanced interest.

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Analysis

The case demonstrates the important role that Part 36 can play in detailed assessment hearings and how

important it is for lawyers to consider the making of offers, and as early in the proceedings as is practically

possible. If you are acting for the winning party, this can result in the obtaining of a windfall. If you are

acting for the losing party then the making of a good, tactical offer should mean that the party avoids paying

the 10% penalty.

Following the latest revision of the Rules in April 2015, the provisions relating to this penalty can now be

found in CPR36.17(3). There is a slight, but significant, change to the phraseology so that instead of saying

the court “will” order the payment of the additional sums of money, the new Part 36 says that the court

“must” order it.

Further, lawyers should be aware that under the new Part 36.5 offers can be made in relation to certain

issues. Therefore if there are parts of the costs proceedings that can be carved off it is also worthwhile

considering whether a Part 36 offer ought to be made in relation to those discrete offers.

The message is clear: litigators need to be pro-active with one eye constantly on making good, tactical

offers to dispense with issues in a case.

Nichola Evans | +44 (0)161 300 8021 | nichola.evans@brownejacobson.com

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Is a perfect storm brewing?

Accordingly to some, the UK is in the grip of a housing crisis, with a lack of housing supply, lack of security

of tenure and soaring rents1. Whether you agree with this assessment or not, it is undeniable that constantly

increasing house prices have made it more difficult for many people to put a roof over their heads. A recent

study by Grant Thornton UK suggested that recent welfare reforms could ultimately lead to more people

being made homeless2 for example through the removal of housing benefit for 18-21 year olds. This is likely

to increase pressure for housing provided by the local authority, at a time where local housing authorities

are struggling to make ends meet as they deal with yet more swinging cuts to budgets.

Add to that a spate of recent Supreme Court decisions on homelessness and the obligations on local

authorities to home the homeless becoming increasingly challenging.

One of these cases was the joined appeals in the cases of Hotak v London Borough of Southwark, Kanu v

London Borough of Southwark and Johnson v Solihull Metropolitan Borough Council3. The judgment handed

down on 13 May 2015 focused on the “priority need” of persons who are homeless or likely to shortly

become homeless, this being one of the key factors for local authorities in assessing whether the duty to

provide support and accommodation has arisen.

Prior to the Supreme Court decision in the joined appeals, the commonly applied test originated from two

Court of Appeal cases from 1983 (Ex p Bowers4) and 1998 (Ex p Pereira5) respectively. In order to establish

whether or not an applicant was ‘vulnerable’, one of the categories of priority need, the approach was to

assess whether the applicant was “less able to fend for oneself” when compared with “an ordinary homeless

person”. This test was restated in DCLG’s Homelessness Code of Guidance for Local Authorities issued in

2006. In its judgment the Supreme Court examined this approach against the statutory wording in the

Housing Act 1996 and found that the principles taken from the previous cases had been misunderstood and

mis-applied by some courts and reviewing officers.

The court dealt with three main issues which arose in all of the appeals, two of which issues concerned the

vulnerability of the applicant, along with a number of other points of significance. The effect of the

1 http://www.theguardian.com/society/2015/apr/28/uk-housing-crisis-in-breach-of-human-rights 2 ‘Easing the burden: the impact of welfare reform on local government and the social housing sector’ (http://www.grant-thornton.co.uk/Global/Easing-the-burden-welfare-reform-report.pdf) 3 [2015] UKSC 30 4 R v Waveney DC Ex p. Bowers [1983] QB 238, Waller LJ at pp 244H-245A 5 Pereira, R (on the application of) v London Borough Of Camden [1998] EWCA Civ 863

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judgment is potentially to widen the definition of vulnerable homeless person eligible for local authority

accommodation.

Comparator for establishing vulnerability

The first vulnerability point was in relation to identifying a comparator. Previously the approach taken by

authorities was to assess whether the applicant was more vulnerable than the average homeless person.

Given that homelessness implies a degree of vulnerability, this threshold was high. Applying this approach in

the case of Mr Johnson, Solihull MBC was satisfied in its review letter that “there is nothing that

differentiates [him] from other homeless people”. Similarly, in the review of its original decision in respect

of Mr Hotak, London Borough of Southwark Council asked itself whether a “less vulnerable street homeless

person would be able to cope without harmful effect”. Lord Neuberger questioned the circular logic of

comparing a vulnerable person to a ‘less vulnerable’ one. He held that ‘vulnerable’ meant “significantly

more vulnerable than ordinarily vulnerable” as a result of being rendered homeless. Further, he determined

that the judgments in Bowers and Pereira had intended the comparator to be an ordinary person if made

homeless, not an ordinary person actually homeless. This is an important distinction as it lowers the bar for

vulnerability, rather than applicants having to demonstrate they were more vulnerable than somebody who

is already homeless and vulnerable. Essentially this means that more applicants are likely to satisfy the

vulnerability requirements and will therefore have a priority need, to which local authorities are duty bound

to respond by offering temporary accommodation.

Relevance of assistance provided by an applicant’s family and support network

The second point on vulnerability was whether the council should take into account any support or assistance

which would be provided by the applicant’s family if he or she were homeless. Lord Neuberger considered

the effect of the legislation which provides that the applicant may still be vulnerable even if he or she

resides with a third party (for example, a family member) and the duty to house the applicant may extend to

that third party.

However if that person was prepared to look after the applicant if they were both homeless, and the council

took this into account when assessing vulnerability, then the applicant may not be able to demonstrate a

priority need and the council would not be under a duty to offer accommodation. Conversely if the person

refused or was unable to look after the applicant then the priority need may be established and they may

both qualify for accommodation. Notwithstanding this effect, which may incentivise the wrong behaviour

from family and friends of the applicant, the court was clear that the approach was correct. Authorities

should therefore take into account any support or assistance that the applicant does in fact receive, whether

through some form of legal obligation or from a family member. However this must be a case-specific

question, not a presumption that such support ought to be available because, for example, there is a fit and

healthy adult living in the household.

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Balancing local authority resources with housing the homeless

In addition to the main issues the court considered further points of significance, one of which has caused

particular concern to local authorities. That is, when assessing whether an applicant is vulnerable an

authority cannot take into account its own finite available resources. Lord Neuberger states:

“the fact that the authority may be very short of money and/or available accommodation cannot in any way

affect whether an applicant is in priority need. In so far as a balancing exercise between housing the

homeless and conserving local authority resources is appropriate, it has been carried out by Parliament

when enacting Part VII [the provisions on homelessness in England]”.

Whilst the determination of these appeals means that vulnerable homeless people should find it less difficult

to obtain council accommodation, there are understandable concerns about where local authorities are

going to find the additional accommodation and resources. Pressure on temporary accommodation is also

likely to surge as a result of the judgment.

Other recent judgments

Just one month before the Hotak judgment the Supreme Court reached a decision in another homelessness

case, Nzolameso v City of Westminster6, which related to a local authority housing a homeless family out of

its area. The claimant, a single mother of five children, became homeless when the housing benefit cap was

introduced and she was no longer able to afford the rent. The local authority eventually offered her a house

in Milton Keynes. The Supreme Court found in favour of the claimant, noting that the authority had not given

serious consideration to its obligation to accommodate her in suitable accommodation before offering the

alternative property. As a result of the judgment, local authorities must now give proper reasons for out-of-

borough resettlements which should ideally refer to a public policy on allocating accommodation to homeless

households, in order that decisions can be evidenced and challenged if appropriate.

Finally, hot on the heels of the Hotak case, the Supreme Court ruled on ‘intentional homelessness’ in Haile v

LB Waltham Forest7 in a decision which will only add to local authority’s woes about funding its obligations in

respect of the homeless. The effect of the decision is that, when assessing those that have become

intentionally homeless, local authorities must now ask whether the applicant’s current state of homelessness

was caused by a deliberate act, such as voluntarily leaving accommodation – in which case they are still

intentionally homeless and the authority is not obliged to offer accommodation – or if there been some

intervening event which has broken the chain of causation, meaning the application is not intentionally

homeless and the authority’s obligation therefore arises.

6 [2015] UKSC 22 7 [2015] UKSC 34

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In Haile the applicant left her single occupancy hostel accommodation voluntarily, after becoming pregnant.

The local authority found that she had become homeless intentionally and refused to offer her

accommodation. However the Supreme Court held that the birth of her child was an intervening event which

broke the chain of causation for intentional homelessness, as the single occupancy conditions of the

accommodation would have resulted in her becoming homeless anyway at that point. Local authorities will

have to review their approach to decisions about intentional homelessness and look for an ‘undeniable

intervening event’ which may break the chain of causation and reinstate their obligation to provide

accommodation.

The effect on local authorities

The report by Grant Thornton claims that the impact of welfare reforms on levels of homelessness have, so

far, been minimised due to local authority use of discretionary housing payments on which many recipients

rely to avoid losing their homes. The fund for discretionary housing payments was cut by DWP by £40m for

2015/16, a move Grant Thornton believes could trigger increases in rent arrears and homelessness in the

next two years. If their predictions are correct, the perfect storm of greater numbers of homeless people

requiring local authority accommodation, coupled with shrinking local authority budgets appears to be

gathering momentum.

It remains to be seen how councils will apply the recent Supreme Court cases and how they balance their

duties to the homeless with budget constraints, whilst at the same time avoiding judicial challenge.

Angela Konteas | +44 (0)115 976 6097 | angela.konteas@brownejacobson.com

15

The Public Contract Regulations 2015 (the 2015 Regulations) do not materially change the position of

frameworks within the EU procurement regime. They remain agreements:

that allow for the award of specific contracts for goods, works or services without the need to issue

a contract award notice

set up for a period of no more than four years, except in exceptional circumstances

with one or more suppliers and for use by one or more contracting authorities

that allow for specific contracts to be awarded either directly to one of the suppliers on the

framework (this will always happen for a single-supplier framework) or following a mini-competition

setting out the scope of any call-offs, where to go outside this scope could be seen as a mis-use of

the framework and an illegal direct award.

However, the 2015 Regulations do contain a few minor differences with the regime under the Public

Contracts Regulations 2006 (the 2006 Regulations). One question that was often raised with us by clients

under the 2006 Regulations was whether, under the same framework, contracts could be awarded following

either a direct award or running a mini-competition. Regulation 19 of the 2006 Regulations gave no

guidance, it just gave both options. Regulation 33(8)(b) of the 2015 Regulations states that the same

framework can allow for contracts to be awarded in both ways. It is clear in the drafting that this must be

set out in the framework agreement. It links this to other provisions within Regulation 33 so that a direct

award can only be made when all the terms governing that award are laid down in the framework

agreement. Where not all terms are set out in the framework agreement, a mini-competition is required.

Contracting authorities will find this clarification useful and it will allow them to focus their attentions on

ensuring that the drafting of the framework is sufficiently clear for all economic operators to understand the

circumstances in which a direct award could be utilised. If a framework agreement is to have both options in

it, the draft call-off terms will need to be sufficiently precise that, in certain circumstances, they can be

used without further amendment. Contracting authorities may be able to link this to price, on the basis of

lower value call-offs not requiring additional or amended terms. Alternatively, it could relate to the

complexity of the call-off requirements as considered against the proposals put forward by the successful

bidders for the framework agreement during the procurement exercise. What contracting authorities cannot

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do is wait and see what the tenders look like or what they feel like at the time of awarding a call-off

contract, forward planning is essential.

A minor amendment to the establishment of multi-supplier frameworks is that the minimum number of

suppliers can now be two, not three. For requirements that are quite specialised, this may allow contracting

authorities to establish a framework that includes an element of competition, without having to appoint

suppliers that are not fully capable of meeting all the requirements.

The 2015 Regulations also expressly require a contracting authority to set out clearly in the procurement

documents all those contracting authorities that will be able to use the framework agreement. While it has

always been a principle of transparency under the 2006 Regulations that only contracting authorities in the

contract notice could use the framework, the level of detail was not always sufficient to allow this to be

done either easily or with complete certainty. Cabinet Office guidance8 assists with this, and with

explanations in relation to the other issues mentioned in this article.

A gentle reminder, where calling-off under a framework established under the 2006 Regulations, that they

still apply.

Anja Beriro | +44 (0)115 976 6589 | Anja.Beriro@brownejacobson.com

8 https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/430313/public-contracts-regulations-guidance.pdf

Birmingham Exeter London Manchester Nottingham

www.brownejacobson.com 17

The Cities and Local Government Devolution Bill (‘the Bill’) was announced in the Queens Speech at the end

of last month, formalising the Conservatives’ intentions to grant new powers to cities and other combined

authorities in bespoke devolution deals.

The offer of more powers has been welcomed by all local authorities however this will come at a cost; a

local authority must become part of a combined authority and the combined authority is obliged to have an

elected mayor, as part of the deal. George Osborne said at his speech in Manchester, shortly after the

election, that there will be no leeway on this point.

Background

A combined authority is an executive authority which, if created, sits above all member authorities and will

be the authority which is in receipt of the new devolved powers under the Bill. The elected mayor will be

directly elected by the public and sit as the head of the combined authority. It should be noted that not all

combined authorities have to have an elected mayor, it is just obligatory for those which wish to benefit

from further devolved powers.

Directly-elected mayors were first introduced under the Local Government Act 2000. Initially they could only

be appointed following a referendum; however since 2007 authorities can opt to have an elected mayor by

simply resolving to do so.

It has been an unpopular choice in the past with a resounding rejection by the majority of cities who held a

referendum on the proposal in 2012. Liverpool and Bristol did opt to have an elected mayor and since 2012

the mayor, who previously did not have any additional powers over and above those available to those

authorities using the leader and committee system, now has more powers than ever before.

New ‘Metro mayors’

Elected mayors, also known as ‘Metro mayors’, will be the elected democratic chair of the combined

authority and will be directly elected by the constituency and the position will be created by order of the

Secretary of State, this can be as a result of a request from a combined authority, or there is provision in the

Bill for the Secretary of State to impose a mayor position on a combined authority (if the member

authorities’ consent is obtained). There is even provision for the order to be made even if one of the

member authorities does not consent.

The powers which the mayor will exclusively have include responsibilities in relation to: transport (extended

further with new powers under the Buses Bill), housing, planning and policing.

18

The Greater Manchester agreement, the first major city devolution deal of its kind, provides guidance as to

what specific powers could be granted to any elected mayor. One of the main responsibilities is that the

mayor will replace the Police and Crime Commissioner and take on their role in relation to policing.

Other mayoral powers contained in the Greater Manchester agreement are:

responsibility for a devolved and consolidated transport budget

responsibility for franchised bus services (subject to consultation by Greater Manchester), for

integrating smart ticketing across all local modes of transport, and exploring the opportunities for

devolving rail stations across the Greater Manchester area

powers over strategic planning, including the power to create a statutory spatial framework for

Greater Manchester. This will need to be approved by a unanimous vote of the mayor’s cabinet

control of a new £300 million Housing Investment Fund

control of a reformed earn back deal (retention of business rates), within the current envelope of

£30 million a year for 30 years1.

These new powers to be entrusted in the elected preferred candidate are considerable and they will be

managing some extremely large budgets.

The advantages

The concept of elected mayors has been heralded by Greg Clark as “strong, visible leadership”2 and will

provide international standing. If other cities are to have mayoral leadership like London then they can look

forward to building a strong reputation for their city, as the likes of Ken Livingstone and Boris Johnson have

done. This includes projects such as the Oyster card scheme and the infamous ‘Boris bikes’.

A key positive of establishing such a position is that it brings democracy closer to local government, and the

people, in having an elected chair. It allows the electorate to have more of a say, strengthening local

democracy and hopefully invigorating the body politic. The mayor can also be an accessible focus point for

businesses, interest groups and members of the public. It may give local councils more of a ‘face’ than

previously; with the majority of people not being able to name or indeed recognise the head of their local

council. It may also enable the mayor, and the council, to become more in-tune with local issues.

1 https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/369858/Greater_Manchester_Agreement_i.pdf 2 https://www.gov.uk/government/news/election-date-announced-for-cities-that-say-yes-to-mayors--2

19

Any concerns in relation accountability can be suitably eased as the mayor will be subject to the combined

authorities’ scrutiny committee who will keep a check and balance on their activity.

The mayor will have a mandate of four years which should provide stability for the electorate and enable

them to gain a presence in the area, and also nationally. The elevated profile of the mayor could enable

stronger advocacy with central government and be a robust link between the people and the Executive.

The concerns

On the other hand there are risks with having an elected mayor. A prime concern of many is electing the

wrong person and then being stuck with them for potentially a considerable length of time (depending on

the length of time the Secretary of State dictates before the next mayoral election). The mayor will not be

able to be removed by the combined authority; this may cause concern if the electorate or combined

authority members feel that the mayor is not performing to standard.

There is also the consideration that although decisions will be subject to scrutiny by the authority, the

mayor will have power to make some decisions without consulting the cabinet and therefore some decisions

taken may not be representative of the views of the council, or the wider population of the area. There

could also be political tensions between the political parties and the mayor which may bring with it its own

issues.

Will it work?

We currently have 173 directly elected mayoralties across England. More recently appointed mayors in

Leicester, Bristol and Liverpool are reported to be working well.

There are some mayoralties which have failed or have been classed as failing:

Stoke-on-Trent City Council: this was the only authority which adopted a mayor and council

manager model where the chief executive was the operator but under the mayors guidance. The

Audit Commission concluded that political animosity between councillors and the mayor lead to poor

performance and a lack of cooperation. It was disestablished in 2008.

Doncaster Metropolitan Borough Council: the Audit Commission in 2010 held that the council was

failing under the mayoral system due to political antagonisms being given priority over service

improvements. The Commission did, however, recommend that the mayoralty continue as there

were ways of rectifying the issues.

3 http://www.bbc.co.uk/news/uk-england-surrey-32939221

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Tower Hamlets London Borough Council: In 2015, the mayor was found guilty by the High Court of

electoral fraud. This was the election for his second term in power in 2013 but it was declared void

one year later, and will have to be re-run. The judge at the hearing commented that this “is the

result of the ruthless ambition of one man”. This highlights one of the main concerns of the public,

putting too much power in one person’s hands.

Conclusion

The establishment of combined authorities and elected mayors has had a mixed reaction but it seems clear

that authorities will have to accept the appointment of a mayor in order to be given more responsibility over

their services. From further research, the general opinion of elected mayors has started to turn and local

authorities have started to become more amenable to the idea4; now that they know they do not really have

an alternative.

There are examples of failing mayoralties; however there are 17 which are currently established in England

and the majority are working well. This number is only likely to increase over this Conservative

parliamentary term.

Although the idea of an elected mayor may cause some concern there are many benefits of having one, as

discussed above, principally bringing democracy closer to the people and increasing local accountability. If

local authorities choose to have one, it should be approached with a positive attitude as it may mean the

local voice can be heard louder than ever before.

Emma Graham | +44 (0)115 948 5641 | emma.graham@brownejacobson.com

4 http://www.lgcplus.com/news/devolution/northern-cities-indicate-willingness-to-reconsider-elected-mayors/5085024.article?blocktitle=More-news-from-Local-Government-Chronicle&contentID=2252

21

The key facts

The Cities and Local Government Devolution Bill was published on 29 May 2015 with the hope that it will

“pave the way for cities and counties around the countries to gain new wide-ranging powers over budgets

and spending.” The Bill is intended to support the work that has already been done in securing the Greater

Manchester devolution deal, and form the legislative framework for the Greater Manchester Combined

Authority and those to follow.

The Bill itself allows a great deal of flexibility about the functions which can be transferred to combined

authorities, and also about the functions which may be exercised by an elected mayor, including those of the

police and crime commissioner. The drafting of the relevant provisions is generic, and intended to be

applied by order to specific combined authorities, allowing a tailored approach.

The Secretary of State will have considerable latitude in making decisions and deals about combined

authority membership, functions and powers. His powers are extensive, including the ability to order the

functions of public authorities or local authorities be transferred to a combined authority. He has the power

to impose a mayor on combined authorities and to remove authorities which do not consent to having a

mayor from the combined authority.

Whether the Bill provides the panacea that local government is hoping for remains to be seen. What is clear

is that it concentrates a great deal of power in the hands of the Secretary of State, who will have the final

say in whether may authorities receive the powers they are hoping for.

We have set out below some of the key points in relation to the Bill below:

Elected mayors

Directly-elected mayors have been around for some time, following their introduction through the Local

Government Act 2000. The office of mayor can be created by referendum, or by resolution of a local

authority. Generally, the electorate have been reluctant to accept mayors, with the majority of referenda

resulting in a ‘no’ vote. However, more recently calls have been made for mayors covering more than one

local authority, such as that proposed for the Greater Manchester Combined Authority. The Bill therefore

sets the legislative framework for mayors which may be appointed for a combined authority.

Consenting combined authorities may have an elected mayor appointed by the Secretary of State.

The mayor would be appointed where the authorities making up the combined authority either

request it, or the Secretary of State may make an order for a mayor to be appointed of his own

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volition, provided that they consent. Constituent authorities which are not prepared to consent to

the appointment of a mayor may be removed from the combined authority by the Secretary of State.

The new mayor will be elected, but has the power to appoint a deputy mayor without any electoral

process. The deputy mayor will be one of the members of the combined authority, which are set out

in the order setting up the combined authority.

The Secretary of State may make an order for any function of the combined authority to become a

function of the mayor only.

A combined authority with an elected mayor may add a precept in order to pay for the mayor’s

functions.

(See our separate article for more discussion of elected mayors here)

Functions

The Secretary of State would be able to order that a combined authority takes on the functions of

another public authority in the same area, either instead of that authority or in partnership. This

provision extends the position under s.105 of the 2009 Act which permits the functions of a local

authority to be transferred to a combined authority and also introduces the ability for a public

authority and a combined authority to share powers. The combined authority members would have

to consent to the order being made and the Secretary of State must consider that making the order

is likely to improve the exercise of public functions.

The proposed amendment introducing a new s.105A(3) into the 2009 Act would allow the Secretary

of State to abolish a public authority where as a result of an Order by the Secretary of State

transferring its functions to a combined authority, it will no longer have any functions.

Governance

A combined authority will be required to have an overview and scrutiny committee.

The Secretary of State may make regulations about the governance, constitution and membership,

structural and boundary arrangements of local authorities, provided that the local authorities to

whom the regulations apply consent to the regulation being made.

General Power of Competence

S.113A of the 2009 Act provides for a form or general power of competence for combined

authorities, which may “do (a) anything it considers appropriate for the carrying-out of any of its

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functions (“functional purposes”), (b) anything it considers appropriate for purposes incidental to

its functional purposes, (c) anything it considers appropriate for purposes indirectly incidental to its

functional purposes through any number of removes, (d) anything it considers to be connected with

(i) any of its functions or (i) anything it may do under paragraph (a)(b)or (c) and (e) anything for a

commercial purpose which it may do under any of paragraphs (a) to (d) otherwise than for a

commercial purpose.” The Bill proposes an amendment to 2009 Act which provides for the Secretary

of State to order that Chapter 1 of Part 1 of the Localism Act 2011 (which contains the general

power of competence) shall apply to a particular combined authority in the same way as it does a

local authority.

Angelica Gavin | +44 (0)115 976 6092 | angelica.gavin@brownejacobson.com

24

In this article we are going to summarise the decision of the Supreme Court in the case of R (on the

application of Newhaven Port and Properties Limited) v East Sussex County Council [2015] UKSC 7 and

highlight some practical points that can either help county councils dealing with town and village green

applications or local authorities generally in their role as a landowner wishing to preserve land for

development purposes.

The Newhaven case concerned an Order made by East Sussex County Council under Section 15(1) of the

Commons Act 2006 (the ‘2006 Act’) to register an area of beach known as West Beach as a Town or Village

Green. Newhaven Port and Properties Limited (NPP) brought proceedings to challenge this order on the basis

that it had historically issued byelaws regulating the use of West Beach for recreational purposes and

therefore the public’s use of it was under an implied licence and so was ‘by right’ and not ‘as of right’; an

argument that the case centred around.

The Supreme Court agreed with NPP and overturned the decision of the county council to grant the Order,

stating that West Beach was used ‘by right’ due to the historic bye-laws.

Background

West Beach was created following the construction of a breakwater in 1883 that caused an area of sand to

build up and create the beach. West Beach could physically be accessed by steps leading down from the top

of the wall and another set of steps leading down from the top of the breakwater.

In April 2006 NPP fenced off the steps leading down to West Beach from the top of the harbour wall due to

concerns about the condition of that wall. The steps leading from the top of the breakwater had been closed

off before 2006. This meant that access to West Beach was no longer possible.

This prompted the county council to register West Beach as a town or village green under Section 15 of the

2006 Act on the basis that there was evidence West Beach had been used by local inhabitants for lawful

sports and pastimes, such as walking dogs and sunbathing, for at least 20 years up to April 2006. NPP brought

a judicial review and the appeal eventually reached the Supreme Court.

The Supreme Court considered three issues which arose on the appeal. The first was whether West Beach is

part of the foreshore and therefore whether this would defeat the local inhabitants’ argument (foreshore

already being subject to an implied licence to be used for recreational purposes as part of the Crown

Estate). The second issue was whether the public had an implied licence to use West Beach as part of the

harbour in light of byelaws passed by NPP. The third issue was whether Section 15 of the 2006 Act prevents

25

registration of land as a town or village green if such registration is incompatible with the statutory functions

to which land has been put. The focus of this article is on the second of these issues.

The law

The key legislation and case law relevant in this case is:

S.15 of the Commons Act 2006: provides that any person may apply to the Commons Registration

Authority to register land as a town or village green in cases where ‘a significant number of the

inhabitants of any locality, or of any neighbourhood within a locality, indulged as of right in lawful

sports and pastimes on the land for a period of at least 20 years’. The use of the wording ‘as of

right’ was of key significance in this case.

Byelaws for the regulation of Newhaven Harbour dated February 1931: these were byelaws issued

by the then Southern Railway Company which set restrictions on what activities, such as the playing

of sports or games or walking of dogs, could be carried on by members of the public in the harbour.

These regulations formed the primary basis of NPP’s claim in this case

R (on the application of Barkas) v North Yorkshire County Council [2014] 2EGLR115: the Supreme

Court found that this Barkas case “indistinguishable from the present case” and the Supreme Court

followed its decision on the distinction between use ‘as of right’ and ‘by right’. This Barkas case

concerned an attempt to register a playing field in Whitby, North Yorkshire, as a town or village

green as it had been used by local inhabitants for sports and pastimes for the requisite 20 year

period. In that case, the landowner, the local borough council, had acquired the land under the

provisions of the Housing Act 1936 and had laid it out and maintained it as a recreation ground

pursuant to Section 80(1) of the Housing Act 1936 and so this designation constituted a consent for

local residents to use the land for recreational purposes by right.

The decision

Essentially this case centred around the distinction between the use of land ‘as of right’ and the use of land

‘by right’ and whether the byelaws passed in 1931 constituted the granting of a permission to use West

Beach for recreational purposes and therefore the public’s use of West Beach was ‘by right’ rather than ‘as

of right’.

The meaning of the term ‘as of right’ was explained in the Barkas case as being use “without any right,

whether derived from custom and usage, statute, prescription or express or implied permission of the

owner”. This use ‘as of right’ is what is required by s.15 of the 2006 Act in order for land to be a town or

village green. The important point here is that usage is without any express or implied permission of the

landowner. This contrasts with public use of land being ‘by right’ which relates to the use of land with

26

express or implied permission of the landowner, which is what NPP argued was the case here due to the

issuing of the 1931 byelaws governing use of the harbour as a whole.

There was some uncertainty over whether the byelaws actually regulated use of West Beach. The byelaws

were worded in such a way that they expressly prohibited certain activities in other areas of the harbour

such as prohibiting persons from bathing in the part of the harbour that lay between Horse Shoe Sluice and

an imaginary line drawn from the East Pier Lighthouse and the Breakwater Lighthouse. The Supreme Court

decided that this was still an implied permission to use West Beach for bathing. The example they gave was

that a byelaw stating that dogs must be kept on a lead in a public park implies a permission to bring dogs

into the park provided that they are kept on a lead. This mirrors one of the provisions of the 1931 byelaws

that provided that “no person shall bring any dog within the Harbour or permit it to be within the Harbour

unless it is securely fastened by suitable chain or cord or it is otherwise under proper and sufficient

control”. The Supreme Court therefore accepted the argument by NPP that the prohibition of bathing in the

area identified in the second part of byelaw 68 and the prohibition on sports and games which impede the

use of the harbour in byelaw 70 imply that bathing can take place elsewhere and that associated

recreational activities can also take place provided they do not impede the use of the harbour.

A preliminary point raised in objection to NPP was that the byelaws were only valid if they had been brought

to the attention of the members of the public. No signs informing the public of these byelaws were in place

during the relevant 20 year period that would have indicated to users of West Beach that their use was

regulated by byelaws. There was also no evidence of any enforcement of the byelaws by NPP. This is where

the Supreme Court followed the decision in Barkas and stated that the position in the present case was

indistinguishable from that case. There is a public law right derived from statute via byelaws for the public

to go on to the land and use it for recreational purposes and therefore use of the land for recreational

purposes was ‘by right’ and not ‘as of right’, irrespective of any public notices. Lord Newberger in the Barkas

case said “that this must be the obvious and natural conclusion because otherwise using the land for public

recreation would actually be a trespass which cannot be correct”.

The Supreme Court therefore allowed the appeal by NPP and dismissed the order issued by the county

council.

Practical points

County councils dealing with applications to register town or village greens and local authorities generally as

landowners can take a number of practical points from this case when dealing with future applications (given

that each case will turn on its own facts):

has the landowner issued any regulations or byelaws governing the use of the land?

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are there any barriers to entry such as gates and are they locked at any time?

consider making regulations or byelaws governing the use of any land that is in practice used for

recreational purposes to ensure that such designation can be removed at a time when you are

seeking to redevelop any land or dispose for development purposes. A town or village green

application could scupper any development plans.

Some of these practical points mirror those raised in our May submission on public rights of way and barriers

to entry which covered public rights of way applications. However, the situations are not identical because

as you will see from this judgment for town or village green applications it is not necessary to bring any

designation or regulations/byelaws to the attention or the public.

Kassra Powles | +44 (0)115 908 4806 | Kassra.Powles@brownejacobson.com

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There is no shortage of controversy around the proposal to offer a right to buy to all housing-association

tenants. It has been the subject of much press speculation and has been questioned by lawyers. The

proposal raises wider questions about the safety of assets held in charitable bodies and other wholly

independent organisations (including where no public funds were used to create the assets in the first

place).

But what is the proposal exactly? A briefing note accompanying the Queen’s speech stated that the Housing

Bill would “enable the extension of right - to-buy levels of discount to housing association tenants”. The

wording suggests the Bill will allow the government to widen access to home ownership by extending the

‘right to acquire’ rather than introducing a new right to buy.

The right to acquire currently offers minimal discounts – limited to £16,000 – to small numbers of housing

association tenants who want to buy their own home. If the discount were increased to match the maximum

available under the existing right-to-buy scheme, it would be £103,900 in London and £77,900 across the rest

of England.

However, extending the right to acquire would limit the sell-off. It would allow housing associations to

protect properties that are specially adapted or designed for sheltered accommodation, and they could

make a strong legal case for exempting all properties built before 1997, many of which were never funded

by government.

There is a bill going through the Commons at the moment entitled the ‘Right to Buy and Right to Acquire

Schemes (Research) Bill 2014-15’. It is to enable the Secretary of State to carry out research into the

benefits of local authorities taking on the entire Right to Buy and Right to Acquire schemes. A report will be

produced six months after the research is completed.

What might this all mean for local authorities? Taking inner London as a starting-point it is being said that

the extended right-to-buy could result in up to 16,000 homes being sold in order to fund the discounts. The

impact would be a cost for housing the homeless in temporary accommodation of some £150m.

In light of other measures to force councils to sell off land for housing, some are looking at ways to place

property in arms-length vehicles, immune from this cocktail of enforced disposal. Does that work? Possibly,

but it is well established law that discretionary powers must be used bona fide for the purposes for which

they were conferred and not for collateral or different purposes. If the predominant purpose of transferring

29

the properties to a special purpose vehicle is to avoid disposals, then there is a risk that the decision would

be held to have been made unlawfully made.

Under the Bill, and whatever other steps ministers take to churn local authority land into the housing

market, it is not inconceivable that Parliament will see through any arms-length arrangements introduced by

a council in an effort to find safe harbour. Ultimately, the proposed Right to Buy on housing association

properties may get watered down, but the pressure on councils to divest themselves of their land-holdings is

unlikely to fade away.

Stephen Matthew | +44 (0)20 7871 8505 | stephen.matthew@brownejacobson.com

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The Public Interest Disclosure Act

As a result of an amendment made by the Enterprise and Regulatory Reform Act 2013, in order for a

disclosure to be a qualifying disclosure under the whistleblowing legislation, the disclosure needs to be ‘in

the public interest’. This applies to all disclosures made on or after 25 June 2013.

The purpose of the amendment was to reverse the Parkins v Sodexho loophole, in which the EAT had held

that a disclosure about the whistleblower’s own contract of employment could amount to a qualifying

disclosure. Many felt that workers were exploiting the whistleblowing legislation by claiming they had made

qualifying disclosures in relation to their own contracts of employment. As such, the words ‘in the public

interest’ were added into section 43B(1) of the Employment Rights Act 1996. However, there is no definition

of ‘the public interest’ in the legislation and for some time we have been waiting for clarification from the

employment tribunal as to what this means.

Chesterton Global Limited (t/a Chestertons) and another v Nurmohamed

The definition of ‘in the public interest’ was considered by the Employment Appeal Tribunal (EAT) in

Chesterton Global Limited (t/a Chestertons) and another v Nurmohamed.

Mr Nurmohamed was employed as a senior manager at Chestertons (an estate agent). On three occasions Mr

Nurmohamed had made disclosures to the area director and HR director about manipulation of the company

accounts, which he believed had an adverse effect on his commission income. He believed that the company

was deliberately supplying inaccurate profit figures to its accountant, resulting in lower commission

payments for around 100 senior managers, including himself. He also stated that this made the company

appear more profitable to the benefit of its shareholders.

Mr Nurmohamed was dismissed and at first instance the employment tribunal found that he had been

automatically unfairly dismissed and subjected to detriment on the ground that he had made a protected

disclosure. The company argued that the disclosures were not made in the public interest as Mr Nurmohamed

was concerned as to how these inaccurate figures were affecting his own commission payments.

The EAT upheld the decision and Mr Justice Supperstone held that the test was whether the worker believed

that the disclosure was made in the public interest and there was no need to determine objectively whether

a disclosure is of real interest to the public. Whilst Mr Nurmohamed’s disclosures were personal, rather than

public, the disclosure concerned the manipulation of accounts which potentially affected more than 100

senior managers. The tribunal and the EAT were satisfied that Mr Nurmohamed did have these other senior

managers in mind when making the disclosure and not just himself. He also believed that his employer was

31

deliberately misstating its accounts and therefore the tribunal concluded that at least a section of the public

would be affected and therefore the public interest test was satisfied.

What does this mean for us?

This decision from the Employment Appeal Tribunal suggests that the requirement to satisfy the public

interest test will not present a huge obstacle for whistleblowers.

Whilst some disclosures will obviously be in the public interest, such as disclosures regarding patient safety,

for some time we have been wondering whether disclosures that would interest only a narrow section of

society would satisfy the public interest test. This decision indicates that they would.

Top tips

Tread carefully when a worker makes a disclosure that could possibly be in the public interest. For

example, an allegation made by an individual that they are being bullied by manager colleague is

unlikely to be ‘in the public interest’. However, if that individual suggests that other team members

are also being bullied, or that the fear engendered by the colleague is impacting on patient care,

this may bring the disclosure into the sphere of ‘the public interest’. Such concerns should be

treated seriously, investigated and appropriate action taken.

In the NHS it is even more likely that disclosures that are ostensibly about an individual’s personal

circumstances could be held to be ‘in the public interest’. For example, complaints made about

breaches of internal policies and procedures could be held to be ‘in the public interest’ as the NHS is

a public body. We would advise that if you are unsure if a worker is ‘blowing the whistle’ err on the

side of caution and treat them as though they are.

Caution is needed if considering taking disciplinary action against a potential whistleblower, even if

their complaint appears to be vexatious. In order to succeed in a whistleblowing claim, a worker

does not have to prove that the facts or allegations are true, as long as that worker reasonably

believes in the truth of the allegations. The Enterprise and Regulatory Reform Act 2013 also removed

the requirement that the disclosure has to be made in good faith.

Gemma Steele | +44 (0)121 237 4561 | Gemma.Steele@brownejacobson.com