Local Government - July 2009

 

Cases and Legislation

Cases

Children
Education
Employment
Food Hygiene
Highways
Housing
Planning

Legislation

Adults
Benefits
Children
Education
Environment
EU Law
Health and social care
Local government
Planning

Cases

Children

RE H (Children) (2009)
The appellant chief constable appealed against a decision refusing his application for disclosure of various documents in care proceedings. The care proceedings had been instigated in relation to four children after injuries to one. The mother's partner, who was the father to one of the other children, admitted causing some of the child's injuries. The chief constable sought disclosure of the medical evidence, the father and mother's statements, the judgment and the agreed statement of facts in order to further criminal investigations. The application was refused. The chief constable appealed arguing that the Family Proceedings Rules 1991 r.4.23 had been revoked in 2005 and replaced with r.10.20A changing the rules on disclosure. The CA allowed the appeal as the judge had not taken proper account of the new rules. A careful balancing act had to be performed by the judge. The fact that disclosure could now be made to police officers in prescribed circumstances, without the leave of the court, might have affected the judge's balancing exercise. Accordingly, the matter would be remitted for further consideration. It was made clear that the application had not clearly identified precisely who was to be in receipt of any disclosed information. In future, applications should contain a clear statement of the identity of the named officer in the child protection unit who the chief constable sought the release of information to, and of the purpose to which the information would be put, and that the named officer be permitted to exercise his discretion to share the documents with the CPS if necessary.

B v (1) Reading Borough Council (2) Wokingham District Council (3) Chief Constable Thames Valley Police
Between 1990 and 1995 B was falsely accused of sexually assaulting his three year old daughter. He claimed that responsibility for it in law lies with a social worker and a police officer who together investigated the allegation in its early stages. The proceedings in the Family Court took no less than five and a half years and 23 days of hearings to reach the conclusion that B had not abused L, and that contact between him and L should resume. The judge was very critical of the police and social worker involved. The judge struck out those parts of the claim relating to the first and second defendants’ alleged vicarious liability for breach of the social worker’s duty of care owed to B. In the second he refused to strike out that part of the re-amended claim which alleged breaches of an alleged direct duty of care owed by the local authority to B, for what might be called in shorthand systemic negligence. Both rulings were considered by the Court of Appeal which allowed an appeal which covered the allegation in that the local authority owed B a direct duty of care to take reasonable care in the practical manner in which its statutory functions under Section 1(1) of the Child Care Act 1980 and the Children Act 1989 were carried out. It was said that the duty required the local authority to have systems to ensure that there was a written policy as to the way in which assessments were to be carried out before findings of abuse were made, on supervision of social workers, on the maintenance and retention of proper case supervision records, proper training of social workers, supporting contact between parents and children, and participation of both parents in the child protection programme process even where one was suspected of abuse. The court therefore held that the earlier decision was wrong on this issue and it should not go to trial. The claims of misfeasance and conspiracy were not proved. The essential ingredient of bad faith is nowhere to be found in the actions of the police constable or social worker. They did not believe they were acting beyond their powers, nor were they at any stage subjectively reckless, knowing that there was a serious risk that their actions would cause B to suffer loss, but choosing to ignore that risk and to carry on. They made a bad misjudgement in what was a bona fide exercise, but it is sadly in the nature of risk assessment, which this process in effect was, that errors in both directions will be made. The problem was a very difficult one to assess, and they got it wrong, but there was no untargeted malice these two women were telling the truth, they were doing the best they could, as they saw it, to protect this child. The claims in misfeasance and conspiracy must therefore fail. It is not, therefore, necessary to consider either causation or quantum given these findings.

North Somerset Council v (1) LP (2) MP (3) JP (By their Guardian JH) (4) JP (By their Guardian JH) & NG (2009)
The local authority appealed against a case management decision that a paediatric pathologist should not be instructed to review a post-mortem previously carried out on a child. LP and MP had two young children who were the subject of care proceedings. The father had 2 other children, one of whom had died, and the other was the subject of care proceedings too. A pathologist was instructed who highlighted similarities in symptoms shown by all children and suggested that a paediatric pathologist should be asked certain questions about the earlier death and the post-mortem findings. As a result, the local authority, supported by the children's guardian, applied for permission to instruct an identified paediatric pathologist. The judge refused the application on the grounds that it was too speculative, slow and expensive. The local authority appealed end the court found that the judge should have ordered the report sought by the local authority and only then decided on the direction of the case once he knew what the paediatric pathologist had said. The further enquiries which the local authority wished to undertake were relevant to the children's future welfare and so were enquiries which a responsible local authority could and should pursue. The court was critical of a judge saying that a responsible local authority, supported by children's representatives, should not be permitted to pursue a particular line of enquiry. That was all the more so when the judge did not know the direction in which the evidence might lead because he refused to give permission for the enquiry to proceed. The court gave guidance about how urgent matters should be approached by parties generally.

Re SB (Children) (2009)
The children’s mother appealed against a decision reached in care proceedings that there were non-accidental injuries, that neither of the parents could be exculpated and that either of them might have been responsible for J's injuries with it being 60 per cent likely that the father had caused the injuries and 40 per cent likely that the mother had. At a later hearing dealing with welfare issues the judge held that her clarification could not amount to a finding that, on the balance of probabilities, the father was responsible and that the mother should have been exculpated on a balance of probabilities. The court decided a judge was not obliged to make a finding on a balance of probabilities between two possible perpetrators. This was one of those cases where it was impossible to say whether one or both parents caused the injury and so neither could be excluded and the judge had been right not to exculpate either parent. Judges were advised to be cautious before amplifying a judgment in which it stated that neither of two parents could be exculpated.

Re D (Children) sub nom NH v (1) A County Council (2) NH (3) RD & SD (2009)
F, the appellant father, appealed against findings of fact which were made at the first part of a split hearing in care proceedings brought by the local authority in relation to his children, R and S. The children's mother stated that on one occasion she had seen bruising on R that had been caused by R's father. When S was approximately 10 weeks old, a medical examination revealed that she had sustained multiple fractures and a torn fraenulum under her lip. It was accepted that the injuries were non-accidental and the threshold under s31 Children Act 1989 was met. It was not suggested that anyone other than the mother or father or both of them could have caused the children's injuries. The judge found that F was the perpetrator of the injuries to both children. He left the matter of who had caused S's torn fraenulum as a neutral finding and stated that he only felt able to find that the mother had conceded that she may have caused it. F submitted that the judge's findings should be reversed and that the mother should be held to be the sole perpetrator or there should be a retrial of the issue of who was responsible for the injuries. The Court of Appeal stated the standard of proof to be applied to all findings of fact in care proceedings was the balance of probabilities test. Judges should not strain to identify the perpetrator of non-accidental injuries to children. If an individual perpetrator could be properly identified on the balance of probabilities, it was a judge's duty to identify him or her but a judge should not start from the premise that it would only be in an exceptional case that it would not be possible to make such an identification. There would be cases, including the instant case, where the only conclusion which the court could properly reach was that one of two parents, or both parents, must have inflicted the injuries and that neither could be excluded. The mother had admitted that she had caused S's torn fraenulum. The judge should have found, on the balance of probabilities, that M had caused S's torn fraenulum, which was a non-accidental injury. Finding that all the injuries were caused by F was therefore unsound. The Court of Appeal reversed the primary finding and replaced it with one that neither F nor M could be excluded from the pool of perpetrators for either R or S's injuries. The case was remitted to the judge to continue with the split hearing.

Re P-J (Children) (2009)
The mother was Welsh and the father was Spanish and serving as an officer in the Spanish army. The couple had five children and lived together in Spain. In August 2007, the parents agreed it was desirable and convenient for the children to have a school year in England and the mother and the children went to stay at the maternal grandmother’s home in Wales, whilst the father returned to Spain and army accommodation. In June 2008, mother said she wanted a divorce and did not wish to return to Spain but she was persuaded by the father to return to give the marriage another chance. The effort to keep the marriage together failed, in October 2008 mother removed the children from Spain and took them to Wales. Father issued an originating summons seeking the return of the children to Spain pursuant to The Hague Convention and Regulation 2201/2003. The President, found that there had been no change in the habitual residence of the children from Spain and ordered their return. The mother appealed on the basis that the President had failed to direct himself that habitual residence might be settled even though it was of temporary or limited duration, and that the only proper conclusion was that the children had become habitually resident in Wales and never lost that habitual residence even when they returned to Spain. Mother further submitted that father had given advance consent to the return of the children to Wales if the attempted reconciliation in Spain were to break down. Mother’s appeal was dismissed. The court found that the President had been entitled to find that the children were habitually resident in Spain and that their father had not consented to their removal to Wales. Whether or not a person was habitually resident in a specified country was a question of fact to be decided by reference to all the circumstances of the particular case. Spain was where the family ordinarily lived, and their stay in Wales was extraordinary. Spain was and remained the children's habitual residence. Any consent to the removal of a child had to be clear and unequivocal which was not the case.

 

Education

R (on the application of E) v (1) JFS Governing Body (2) Admissions Panel of JFS & (1) Secretary of State for Education (2) Brent London Borough Council (3) Office of the Schools Adjudicator & United Synagogue: R (on the application of E) v Office of the Schools Adjudicator & (1) JFS Governing Body(2) Brent London Borough Council (3) David Lightman (4) Kate Lightman & (1) British Humanist Association (2) United Synagogue (2009)
The father appealed against the refusal of his applications for judicial review of decisions concerning the propriety and legality of the criteria governing admission to a Jewish school He was Jewish by birth and his wife was Jewish by conversion. They wished for their son to be admitted as a pupil to the relevant school. As it was oversubscribed it was entitled to select pupils according to its admissions policy, provided the policy was lawful. The present policy was to give priority to children who were recognised as Jewish by the Office of the Chief Rabbi which decided the son was not eligible for admission. The father’s appeal was dismissed and his objection to the Office of the Schools Adjudicator was also rejected. E applied for judicial review which was dismissed on the basis that the criterion of being Jewish by virtue of Jewish matrilineal descent was not one of ethnic origin, so that the decision not to admit a child who did not conform within Jewish orthodox law to the requirement of Jewish descent in the maternal line did not contravene the Race Relations Act 1976. It fell to be determined whether J's oversubscription admission criteria were unlawfully discriminatory. The CA decided that so long as a maintained faith school was undersubscribed, it could not use religious criteria to allocate places. Once it was oversubscribed, it could lawfully restrict entry to children whom, or whose parents, it regarded as sharing the school's faith. No school, however, was permitted to discriminate in its admissions policy on racial grounds. Refusal of admission was plainly less favourable treatment within the meaning of s.1 (1)(a) of the Act. The question for determination was whether that was done on racial, as opposed to religious, grounds. If an act of discrimination was done on racial grounds, its motive did not matter. The school had been perfectly open in giving the ground of non-admission as because the mother was not regarded as Jewish and therefore the child. This constituted discrimination on racial grounds. Jews constituted a racial group defined principally by ethnic origin and additionally by conversion, and to discriminate against a person on the ground that he or someone else either was or was not Jewish was therefore to discriminate against him on racial grounds. The theological motive for the discrimination, whether benign or malign, made it no less and no more unlawful. That did not mean that no Jewish faith school could ever give preference to Jewish children but that eligibility had to depend on faith, however defined, and not on ethnicity.

R (on the application of TM) v Hounslow London Borough Council (2009)
At issue, was once it was established that a school could meet a child's educational needs, whether it then followed that, in accordance with s319 Education Act 1996 that education at that school became appropriate. A local authority was obliged to ask if the provision of education at the school was proper and suitable, having regard to the full circumstances of the case, including but not limited to: the child's background an medical history; the cost of the educational provision; and the wishes of the parents. Consequently, the tribunal and judge had erred when they concluded that once a school had been identified as meeting the educational needs of a child, it necessarily followed that, by virtue of s.319, the school had to be named in the statement of special educational needs.

R (on the application of N) v North Tyneside Borough Council (2009)
A local authority had not failed to comply with their duty under s324(5) (a) Education Act 1996 when considering what arrangements should be made to meet the objective of N's statement of special educational needs. One of the arrangements was group therapy. N's statement had to be read as a whole and the local authority concluded that group therapy sessions were not in N's best interests.

R (on the application of A) v Independent Appeal Panel for Sutton London Borough Council & (1) B School Head Teacher & Board of Governors (2) Secretary of State for Children, Schools and Families (2009)
The claimant child (A) through his father, applied for judicial review of a decision to exclude him from school permanently. When A was 14 he brought smoking material onto the school premises, which he sold to a number of other boys. He maintained that the material was a herbal mixture which he had purchased from a local shop and that he made that clear to those to whom he supplied it. Several of the boys A sold the substance to believed the substance was cannabis. In addition to the supply of that material, A arranged for a younger pupil to meet a third party who, he suggested to the other boy, would be able to procure cannabis and indicated to another younger pupil that he could arrange for him to meet a dealer. None of the meetings took place. After investigations and interviews, the head teacher permanently excluded A on the basis that he had dealt substances believed to be cannabis to other pupils and arranged a meeting out of school for the purpose of procuring drugs and took a younger pupil with him. The disciplinary committee of the governing body upheld the decision on review. The independent appeal panel rejected an appeal by A. Amongst other things, A argued that the investigation was so flawed that the panel erred in placing any reliance upon the evidence collected as a result of it. The court concluded that evidence of any oppression of interviewees by the teachers was scant and not compelling and consequently the procedure was not rendered unfair in that particular regard. The panel was satisfied that the evidence was sufficient to satisfy the balance of probabilities test in relation to the allegations and the panel had been entitled to make those findings on the evidence. The standard of proof in school exclusion cases was the balance of probabilities and that always meant "more likely than not". In accordance with the Secretary's state guidance on exclusion, the panel was bound to consider whether the sanction was reasonable and proportionate and for that reason the panel made an error of law in not making a finding as to the true nature of the substance supplied since that might have affected its view on whether permanent exclusion was an appropriate sanction for what it found that A had done. The true nature of the substance supplied might affect the proportionality of the response and the appropriate sanction. It could not be said that the only possible proper sanction would be permanent exclusion. The panel's decision was quashed and the matter remitted for A's appeal to be reconsidered by a fresh panel.

R (On the Application of JK) (Claimant) v Haringey London Borough Council (Defendant) & Waltham Forest London Borough Council (Interested Party) (2009)
JK had a SEN statement maintained by Haringey LBC. JK was permanently excluded from his secondary school. His behaviour at home deteriorated to such an extent that his mother requested that Haringey accommodate him under s.20 Children Act 1989. S.20 accommodation was provided within Waltham Forest LBC. JK’s representatives sought a statutory reassessment of his needs, but were informed his statement had been transferred to Waltham Forrest LBC. Haringey said that whilst it retained financial responsibility and oversight for JK's education, it had transferred the administrative management of his case to Waltham Forest. JK applied for judicial review of the LEA’s decision on the basis that Haringey was still responsible for his educational statements. The application succeeded. The Court held that an LEA retained responsibility for the continued maintenance of a child's special educational needs statement despite the fact that the child started living in another local authority's area. Moreover, there was no good reason for keeping the distinction between maintenance of an educational statement and payment for such education separate.

Shaaira Alexis v Newham London Borough Council (2009)
Whilst Shaaira had been away from school another teacher had granted three pupils access to her classroom, which would otherwise have been locked, for the purpose of obtaining their study materials. One of the pupils added whiteboard cleaning fluid to Shaaira's bottled water which Shaaira later drank. Shaaira suffered immediate physical injuries and subsequent psychological consequences. She claimed damages for personal injuries against the local authority, on the grounds that the relevant teacher had negligently allowed the three pupils, unsupervised access to her classroom contrary to established practice. Her claim failed. The Court found that there had been no reason to suspect that a student would misbehave if allowed access to an otherwise locked classroom, so the education authority had not breached its duty of care when the student accessed the classroom and put whiteboard cleaning fluid in her water bottle.

R (on the application of D (A child acting by her mother & litigation friend AD)) v Birmingham City Council (2009)
The child had a statement from age eight. At a subsequent annual review, about four years later, the local authority's educational psychologist stated that her level of attainment had moved forward about two years from that recorded in the original statement. The head teacher’s report recommended that there was no need to review the child’s educational needs or placement. This was unchallenged at the review. After the review the parents requested amendment to the statement on the basis that she had only made two years' progress in four years and this was the result of some problem or deficiency in the statement. The request was refused, so they applied for judicial review on the basis that the local authority had acted in an irrational manner and ultra vires its powers under the 2001 Regulations and Education Act 1996. The application was dismissed. The court held that the local authority was entitled to reach its decision on the evidence available. The court also said that the underlying assumption in the parent’s case that the statement had to be amended whenever there were new test results available was not consistent with the relevant code of practice or the Regulations. The court further found that alternative redress could have been obtained via a request for a statutory reassessment.

 

Employment

A Smith v Oxfordshire Learning Disability NHS Trust (2009)
S had worked for the trust as a care worker in a residential care home for adults with learning disabilities for 2 years. He worked a basic fifteen hours per week with a salary and he was required on some occasions to sleep in at the home for payment of a flat rate. Also he was entitled to unsocial hours enhancements for hours immediately before and after a sleep-in provided he was undertaking client-related activity; or if he had a disturbed night. Both parties accepted that the sleep-in should be brought into account under the National Minimum Wage Regulations 1999. The tribunal found for the trust. The EAT found that the sleep-in payment was not "an allowance" within the meaning of the Regulations and accordingly had to be taken into account in calculating whether the minimum wage had been paid. Under reg. 2(1) an allowance had to be "attributable to a particular aspect of the worker's working arrangements or to his working or personal circumstances" this was consistent with the guidance published at the time with the regulations. The sleep-in payment was inherently different from the unsocial hours "enhancements" to which S was separately entitled on top of the basic remuneration. Both of those seemed to be good examples of genuine "allowances" within the meaning of the Regulations

Hartlepool Borough Council v P Llewellyn & Ors : Middlesbrough Borough Council v A Matthews & Ors : South Tyneside Borough Council v P McAvoy & Ors : Middlesbrough Borough Council v R Ashcroft & Ors : (1) P McAvoy & Ors (2) P Llewellyn & Ors (3) P McAvoy & Ors v (1) South Tyneside Borough Council (2) Hartlepool Borough Council (3) Middlesbrough Borough Council (2009)
A number of women employed by local authorities had brought equal pay claims against their employers on the basis of bonus payments which were not available to them. The bonus payments were phased out, and many of the female claimants succeeded in their claims and were entitled to payment of arrears. A number of men claimed they should be entitled to equivalent payments using the successful women as comparators. An employment tribunal decided that the men's claims were admissible, but found that they were only entitled to arrears of pay from the date of the presentation of their female comparators' claims. The local authorities appealed against the tribunal's decision on admissibility and the male claimants cross-appealed against the decision concerning the extent of their entitlement to arrears of pay. The EAT found for the male employees by substituting the higher rate of pay The male claimants were clearly victims of discrimination on the grounds of their sex, as a gender-based criterion had been applied, and, but for the men's gender, they would have been entitled to the same pay as the women. It could not therefore be argued that the difference in pay was due to a genuine material factor which was not the difference of sex. Arrears awarded to successful female claimants represented pay, albeit paid late and only as a result of a tribunal claim. The entitlement to that pay had accrued to the female employee over the period of her claim, even though it was not recognised by her employer at the time. Had she received the pay at the time it fell due, the male claimants would have been entitled to its equivalent, and it was hard to see why payment in arrears should make a difference to the entitlement of the male claimants. However, for the purposes of a claim by the men, there was no actual discrimination unless and until the women were paid or received an award in respect of that period.

Burnley Borough Council v K A Davies & Ors (2009) EAT
The Local Authority employer appealed the tribunal decision of unfair dismissal. Its contract allowed for a car under a contract hire scheme until death in service, retirement or cessation of employment. The local authority wanted to phase out the scheme which was opposed. The employees’ grievance was rejected by the local authority but an appeal was allowed by a panel of councillors, which directed that further discussions should take place. Fresh proposals were accepted by only six employees. The rest were given three months' contractual notice of termination of their employment and accepted an offer of re-engagement on terms that the scheme would come to an end but commenced proceedings. The employment tribunal held that the local authority had established a potentially fair reason for dismissal but had acted unreasonably in failing to start

Cheltenham Borough Council v Christine Susan Laird (2009)
Laird was verbally offered the position of managing director with the local authority. Before receiving written confirmation she had to answer a medical questionnaire. She had answered the questionnaire stating that she enjoyed good health and had no physical or mental impairment or ongoing condition which would affect her employment and she signed a declaration that the answers were true to the fullest of her ability and acknowledged that if she had wilfully withheld any material fact her contract could be terminated. Laird was employed with a view to restructuring the council. Following elections the leading party changed and they were opposed to the restructure. Relations deteriorated between Laird and the council and the council leader made complaints about her which were the subject of an investigation. Laird then suffered a nervous breakdown. A psychiatric report advised that Laird was unfit to undergo the investigation and it referred to three previous episodes of depression and the fact that she continued to take anti-depressants. The local authority concluded that Laird's contract of employment had been frustrated because there was no reasonable prospect of the investigation taking place or being concluded. She was found to be permanently unfit for work and obtained an ill-health retirement pension. The local authority subsequently claimed damages against Laird for failing to disclose her history of depression in the medical questionnaire. Laird counterclaimed against the local authority to include allegations of harassment and failure to protect her heath. The issues were (i) whether the contract had been concluded orally and whether it had been conditional on a satisfactory medical questionnaire; (ii) how the medical questionnaire should be construed; (iii) whether L's answers had been false and if so whether they were fraudulent or negligent; (iv) whether the local authority had relied on the representations and/or had been induced to enter into the contract by them; (v) whether the local authority was in breach of duty towards L by breaching the implied term of trust and confidence and the duty to take reasonable care for her health by, amongst other things, failing to protect her from an alleged campaign of harassment and constituting the panel and conducting the subsequent proceedings unfairly. Both the local authorities claim and Laird’s counter claim were dismissed. The court found that the answers given in the medical questionnaire had been an inducing cause of the subsequent contract of employment, but the questionnaire had been ambiguous and the answers given had not been false or misleading. At the time of completing the questionnaire Laird was not suffering from depression and would not reasonably have considered that she was suffering from a condition causing physical or mental impairment, or from a condition that was bound to affect her employment.

 

Food Hygiene

Pankaj Kothari, Pragnesh Naik & Raw Lasan Ltd v Harrow London Borough Council
The appellants appealed by way of case stated against a decision to convict them of food hygiene offences. They owned and managed a restaurant that was subject to the Food Hygiene (England) Regulations 2006. Because of complaints about odours ducting was constructed outside the building to lead the fumes into a sump filled with a water based deodoriser. An environmental health officer served a hygiene improvement notice on the basis that the extraction system did not have an adequate filter system. The magistrates' court found that every defect in the extractor system related to those parts of the system that were outside the building and that the extractor system adequately ventilated the kitchen. The main issue was whether, on the evidence presented by the prosecution and on the facts found by the magistrates' court, there was evidence of offences under the Regulations. The Court held that the purpose of the Regulations was not to deal with environmental issues that arose outside the premises. Hence it was not open to the court to conclude that the extractor system was not suitable and sufficient for the purposes of the Regulations.

Highways

Infolines Public Networks LTD v Nottingham City Council (2009)
The local authority removed and disposed of two telephone kiosks from a city centre, purportedly exercising their powers in relation to emergency works under section 52 New Roads and Street Works Act 1991. Infolines sought damages for the wrongful interference of their goods. The Court of Appeal concluded that the disposal of the kiosks was not required to prevent danger to people or property. Removal of the kiosks would alleviate any danger. The local authority was not entitled to dispose of those kiosks free from civil liability and the disposal amounted to a wrongful interference with goods.

 

Housing

London & Quadrant Housing Trust v R (on the application of Weaver) & Equality & Human Rights Commission (2009)
The appellant housing trust (L) was a registered social landlord, with corporate and charitable status providing social housing to those in need. It served the respondent tenant (W) with an order for possession for rent arrears. . She sought judicial review claiming that her eviction would interfere with her human rights. An issue arose as to whether L was a public body within the meaning of the Human Rights Act 1998 s.6 (3)(b). The Divisional Court found that the act of management and allocation of housing stock was a public function. The CA dismissed the appeal but stated that the determination of the public status of a body was fact specific. The key question to determine whether W's human rights were engaged was whether the act of termination was a private act. When characterising the nature of the act, it was important to focus on the context in which the act occurred. The court had regard to the function of allocating and managing housing, having regard to the extent to which in carrying out the relevant function the body was publicly funded, or was exercising statutory powers, or was taking the place of central government or local authorities or was providing a public service. The reliance on public finance and operating in very close harmony with local government was relevant. The provision of subsidised housing was a governmental function. L was providing a public service. Further, it was acting in the public interest and had charitable objectives. The regulations to which it was subjected were designed, at least in part, to ensure that government objectives with respect to a vulnerable group in society were achieved. As regards the act of termination, it was so inextricably linked with the provision of social housing that once the latter was seen as the exercise of a public function, the acts which were necessarily involved in the regulation of the function were also public acts. The grant of a tenancy and its subsequent termination were part and parcel of determining who should be allowed to take advantage of the public benefit. The act of termination was not purely incidental to L's principal function. If an act were necessarily a private act because it involved the exercise of rights conferred by private law that would significantly undermine the protection which Parliament intended to afford to potential victims of hybrid authorities. Here, the act of terminating W's tenancy was a private act and was in principle subject to human rights considerations.

Paul Taylor & Ors v Central Bedfordshire Council & Secretary of State for Communities & Local Government (2009)
The tenants of assured shorthold tenancies “T” appealed against the making of a possession order. The chain of sub leases to the housing association landlord included two local authorities. Negotiations about new leases came to an end, the local authority resolved to recover possession and proceedings were commenced. T accepted that they were trespassers but argued that the local authority's claim for possession contravened European law. The judge made a possession order. T submitted that a public authority had to have regard to the personal circumstances of the trespassers when making its decision to seek possession and was required to act proportionately. The CA dismissed the appeal and decided that the possibility of judicial review of public authority decisions on ordinary public law principles did not constitute a ground of challenge that the public authority which otherwise had an absolute right to possession had failed to take account of personal circumstances. The personal interests safeguarded by art.8 were to be regarded as sufficiently safeguarded by the fulfilment of the requirements for the recovery of possession by the landowner laid down by the statute or by the common law. (2) The law gave an owner of land the right to obtain possession against a trespasser through proceedings in court. The court may pay regard to the personal circumstances of the occupier and may have discretion. Provided it could establish its absolute right to possession, personal circumstances could only be relevant to the extent to which a court was prepared to postpone execution, which a public authority would be entitled to leave to the court.

Linda Freeman v Mayor & Burgesses of Islington London Borough Council (2009)
Freeman had her own flat but moved into her father's flat, of which he was a secure tenant, before he died so she could care for him as his health deteriorated. She lived with her father full time for a year before his death and then sought to succeed to the tenancy pursuant to s87 Housing Act 1985. The court confirmed the existing well established authorities. 'Residing with' means more than 'living at'. There has to be an intention to a significant degree that can be considered as making a home with the tenant. A person can have more than one home yet still reside with a tenant within the meaning of s87. In the current case, there was nothing to show that Freeman was doing anything other than performing her natural duty to her father.

Hanoman v London Borough of Southwark (2009)
A dispute had arisen in relation to Hanoman's right to buy his local authority flat under Housing Act 1985 Pt 5. The dispute lasted 4.5 years before resolution by the High Court in Hanoman's favour. Given those proceedings, the local authority did not serve a section 124 notice but Hanoman served a s153A (1) notice of delay. Accordingly, the issue before the court was whether the crediting of housing benefit to a tenant's rent account constituted a "payment of rent" for the purposes of s.153B. The House of Lords dismissed the literal construction of the phrase 'payment of rent' in s153B which had been advanced by the local authority. The House undertook a detailed analysis of the law in this area before concluding that a periodic crediting to a tenant's rent account of a sum of money that could not have been paid to him but was credited for the purpose of reducing or discharging his periodic rent liability, could be described as a payment of the rent for the purposes of section 153B.

Emma Ryan v Islington London Borough Council (2009)
Ryan gave notice exercising her right to buy a long lease for her local authority flat. She was sent an offer notice that took into account known defects. Two months later subsidence was diagnosed at the flat and underpinning was recommended, the local authority advised that there might be a six-month wait for the work. Ryan accepted the offer. The conveyancing documentation was sent to her solicitors but they did not reply and eight months later the local authority served a notice to complete within 56 days, the notice required Ryan to serve written notice if "any relevant matters are outstanding". Ryan raised queries about the underpinning but she did not explain that she could not obtain a mortgage until the works were completed until a second notice to complete had been served. The time for completion expired so the local authority treated the application as deemed to be withdrawn. Ryan began proceedings seeking a declaration that the exercise of her right to buy her flat was not deemed to have been withdrawn and an alternative claim for damages for loss of that right. The local authority admitted breach of their repairing obligation but the recorder found that Ryan had not complied with the first notice because queries about the underpinning works were not "relevant matters" as they did not relate to the lease itself. Ryan appealed on the basis that underpinning was a "relevant matter" that "related to the grant" and had been outstanding. She also argued that the recorder had erred in finding that the notice periods were reasonable and had given no reasoned conclusion for dismissing her damages claim. Her appeal was dismissed. The court of appeal found that the remedying of subsidence was not a "relevant" matter that was outstanding for the purposes of the Housing Act 1985 s.140(1). The court also found that the notice periods had been reasonably. The court said that the recorder had failed to give sufficient reasons for rejecting the damages claim but nonetheless the claim could not succeed as the local authority could not have contemplated that it was assuming an obligation to compensate on the basis that its failure to perform its repairing covenant meant Ryan was unable to obtain a mortgage.

 

Planning

Milton Keynes Council v Leisure Connection Ltd
Judgment Date: 05 June 2009
In the absence of any evidence that the managing body of a leisure centre had taken any underlying measures to discharge its statutory obligation under the Environmental Protection Act 1990 s.34(1)(b) to prevent the escape of controlled waste, it followed that magistrates had been wrong to suggest it had no case to answer. The only reasonable inference was that the body had failed to prevent the escape of controlled waste.

City & Country Residential Ltd v (1) Secretary of State for Communities & Local Government (2) East Hertfordshire District Council (2009)
The local authority refused to grant planning permission for conversion of garage buildings into two apartments on green belt land near a Grade II listed building with french doors which allowed access to overgrown land outside, suggesting that the use of the overgrown land could be restricted by a condition. The inspector found that it would not be possible to prevent future occupiers from doing so. The inspector held that the proposal would increase domestic activities, would give rise to additional car parking, and would have a materially greater impact on the green belt than the original use would do. The inspector, having regard to the Planning Policy Guidance 2 relating to green belt land, found that the proposed development was inappropriate and refused it. The applicant applied for review which was refused. The inspector only needed to address the principal controversial issues, and not every issue raised. The inspector had expressly considered a suggested condition to restrict use of the land outside the French doors and had properly applied the guidance. He had properly considered the issue relating to additional car parking, and the impact of C's proposal on the green belt land. He had provided clear and intelligible reasons for his conclusions. There was no error of law in the inspector's decision.

Urban Edge Group Ltd v London Underground Ltd sub nom 59-63 Holywell Lane, Shoreditch, London, EC2A 3PQ (2009)
The claimant (U) had owned land which had a building which was used for storage. The defendant acquiring authority (L) acquired the land as part of a scheme to construct a railway. U claimed compensation to be assessed by reference to five alternative options, which it claimed would have received planning permission in a no-scheme world. The court had to consider preliminary issues which were whether planning permission should be assumed to have been granted, if so, whether the land was to be valued as if such a permission was granted and whether the effect of the no-scheme rule was such that it could be assumed that in a no-scheme world, development in the locality of the land of a height similar to or greater than the building might have been permitted, and the effect that such an assumption would have on the hope or expectation of obtaining planning permission on the land.  The court decided that Section 16(2) of the Land Compensation Act 1961 could have application to plans prepared under the Town and Country Planning Act 1990 and was not limited in its application to plans prepared under the Town and Country Planning Act 1947 or the Town and Country Planning Act 1962. The definition of "development plan" had been modified to take account of new generations of development plans. If s.16(2) had had no application to later development plans, so that that category of planning assumptions no longer existed, that would constitute a very strong argument for applying the no-scheme rule by analogy with s.16(2) to fill the void. The appropriateness of applying the no-scheme rule was reinforced by the limited application that s.16(2) appeared to have under later development plans and the difficulties that could arise in deciding whether land was "allocated" for its purposes. On the facts, the land did not fall within an area allocated within the meaning of s.16(2) and so planning permission could not be assumed and would therefore be determined under the no-scheme rule. The physical state of the land around the subject land had to be taken as it actually was at the valuation date. That was the effect of applying the assumption that the scheme had been cancelled on the valuation date. On the facts, there was a reasonable expectation that planning permission for the first option, changing the building to business use, and the second option, changing it to business use and adding two storeys, would have been granted, and the land was to be valued on the assumption that such permissions were granted on the valuation date. When applying the no-scheme rule, the determination was whether it would have been reasonable for permission to have been granted. Where hope value was being considered, the enquiry was the prospect that the market would have attached to the grant of permission, in which case it would be the prospect of the actual planning authority granting permission on which the market would base its assessment.

R (on the application of Sainsbury’s Supermarkets PLC) v Local Government (2009)
The applicant supermarket (S) applied to extend one of its retail stores in a proposed regeneration area. The comprehensive development plan for that area anticipated that S should be relocated and the site redeveloped. The planning inspector refused permission on the basis that it would actually jeopardise the comprehensive development plan, that S would be unlikely to relocate and ongoing negotiations were significant. He also felt that it set a precedent for other applications of a similar nature. The application was refused. The inspector had given sufficient evidence to support his reasons, they were not irrational nor were they ones which no planning inspector was entitled to reach on the evidence before him. The inspector was entitled to conclude, exercising his planning judgment, that the grant of permission would undermine the local authority's comprehensive scheme and there was no basis upon which it could be challenged.

R (on the application of Simon Woolley) v Cheshire East Borough Council & Millennium Estates Ltd (2009)
The defendant local planning authority granted planning permission to the developer (M) for the amended application for demolition of a property and its replacement by a larger property following an initial refusal as an unacceptable intrusion onto an adjoining area of special country value. The report on the amended application stated that a condition would have to be imposed to secure a method statement concerning the mitigation for the bats. Permission was granted, the existing property was demolished, a licence was obtained from Natural England about the bats but because M subsequently went into administration nothing further happened. The claimant (W) who owned the neighbouring property applied for judicial review of a decision with reference to the requirements of Council Directive 92/43 as implemented by the Conservation (Natural Habitats, &c.) Regulations 1994. The court quashed the planning permission. A local authority could not discharge its duty simply by making the obtaining of a licence a condition of the grant of permission the absence of which was a criminal offence anyway. The planning officer's report had made no mention of the Directive or the Regulations. That breach of the Regulations had to be seen as a substantive breach of European Law and, on that basis, the unlawful decision was to be quashed without more: the court had not even to inquire as to whether it could be said that the impugned decision would have been the same in any event,

Prem (Rooster) Ltd v Secretary of State for Communities & Local Government (2009)
The relevant site comprised a former employment site with a listed building and an old mill. The applicant company (P) had applied for planning permission for the construction of Class B1 business buildings and residential buildings on the site. P also applied for planning permission for the change of use and conversion of the mill, the listed building and other buildings to form a number of residential units and for listed building consent for the conversion and works to the listed building to convert it into two residential units. The local authority refused all three of P's applications. The planning inspector appointed by the Secretary of State allowed P's appeal against the refusal of listed building consent but dismissed P's appeals against the refusal of planning permission. The court decided that the planning inspector had given proper, adequate and intelligible reasons for his decision and it could not be said that his decision was inconsistent or irrational. It depended on the circumstances of each case as to the degree to which a planning inspector had to explain how he reached his decision. In the instant case there had been competing submissions as to whether the local authority would have a shortfall in housing. As this was not a large scale development the planning inspector did not have to explicitly state what assumptions or elements used in calculating the respective figures he agreed or disagreed with; further the planning inspector had not taken into account irrelevant considerations; he had not improperly assumed that the proposed B1 building would in fact be so situated; and finally although he had not expressly stated what benefits the B1 building would have, the planning inspector had to have had such benefits in mind in reaching his decision.

Paul McCleave v (1) Secretary of State for Communities & Local Government (2) Canterbury City Council (2009)
The local planning authority (C ) refused to grant planning permission for the change of use of an existing incomplete building to a dwelling within a conservation area. It was subject to an enforcement notice which was upheld on appeal. The refusal was upheld by the respondent Secretary of State’s planning inspector. The applicant (M) applied to quash this. The inspector had found that the residential use of the land had ceased and that M's proposal would be harmful to the character and appearance of the countryside and would affect the area of high landscape value. He also held that due to the building's poor design it would fail to preserve the character and appearance of the conservation area. He concluded that the proposal was contrary to the relevant development plan. The court decided that there was no substance or merit in any of the issues raised. There was nothing unacceptable about the way the inspector had conducted the inquiry. Also M sought to raise a point that was not dealt with in the inquiry. That would involve consideration of new evidence and would not have made any difference to the outcome of M's appeal against the local authority's refusal to grant planning permission. There was no error of law on the part of the planning inspector in relation to the issues raised.

R (on the application of Wiltshire District Council) v Cotswold District Council & (1) Kemble Airfield Estates Ltd (2) Kemble Air Services Ltd (3) Kemble Business Park Estates (2009)
The airfield straddled the boundary between the two local authorities’ areas. Enforcement notice proceedings had been commenced by the defendant local authority CDC in respect of the airfield alleging that there had been a material change of use at the airfield namely from a use for the maintenance, repair and storage of aircraft to use for the maintenance, repair and storage of aircraft and for general flying activities. Those proceedings were not continued following an abortive public inquiry. An application pursuant to the Town and Country Planning Act 1990 s.191 for a certificate of lawful use or development for existing development and uses at the airfield was subsequently made. In support of that application the first interested party contended that whilst other uses had been made in respect of certain land and buildings at the airfield, the primary use of the airfield was for general aviation purposes for a period of ten years preceding the date of the application for the certificate. CDC agreed and determined that it was appropriate to grant a certificate of lawful use in the terms sought. The claimant local authority sought judicial review of CDC's decision. The court refused and decided that as a matter of law a local authority could not issue a certificate under s.191 of the Act that went beyond what the evidence showed was the use of a site. Once a court was satisfied that the use demonstrated was lawful it had no choice but to issue a certificate pursuant to s.191. The fact that there were other uses in respect of a site in which a certificate of lawful use was sought did not mean that it would be unlawful for a local authority to issue a certificate of lawful use in respect of the primary use of the site. The term "general aviation purposes" was not too wide for a certificate of lawful use. It was clear that "general aviation" had a specific meaning. Accordingly, CDC was entitled to issue the certificate in the terms that it did, The fact that CDC had stated in its reasons that the grant would be of benefit to the community in its area was irrelevant and it could not be said that its comment as to the planning merits vitiated its decision. C's reasons for its decision were adequately expressed. The fact that CDC's decision referred by way of a map to the whole of the airfield did not vitiate CDC's decision. CDC could only issue a certificate of lawful use in respect of a site contained within an area in its control and its decision did not purport to do anything other than that. Accordingly, that part of the certificate of lawful use that referred to the part of the airfield that was outside its’ area obviously had no application.

John Catt v (1) Brighton & Hove City Council (2) Brighton & Hove Albion Football Club (2009)
The defendant local authority B granted various temporary planning permissions for the use of a stadium, owned by them, by the interested party football club BFC. The Claimant C applied for permission to seek judicial review of it as he lived next door. The court had to determine whether to refer a question to the European Court of Justice. Due to problems initial grants were quashed by agreement. The Court of Appeal found that in respect of the relevant grant, B had been entitled in forming its screening opinion to find that the proposed development regarding the stadium would not result in any significant effects on the environment, and that an environmental impact assessment was not required. C made a complaint against the United Kingdom to the European Commission that was accepted and registered by the Commission. B gave a further grant of temporary conditional planning permissions to BFC for its continued use of the stadium. That grant did not increase the seating capacity of the stadium, but did allow for the construction of a small staff building. C sought to refer the matter to the ECJ. The court decided that it was inappropriate to refer a question to the ECJ, it was not necessary to enable the court to give a judgment in the proceedings before it. The question at the heart of the screening opinion reached by B in making its decision was whether the continued use of the stadium by BFC for a further period of three years would be likely to have significant effects on the environment by virtue of its nature, site or location. Those effects were unchanged from those that arose in the decision that was found to be valid by the Court of Appeal, and the court was therefore bound by the Court of Appeal's decision, Moreover, neither the High Court, nor the Court of Appeal nor the House of Lords, nor any party concerned, had considered it necessary to refer the case to the ECJ. Further, the Commission’s letter of reply to the complaint was supportive of B’s stance on the matter, and the letter did not purport to decide one way or the other whether the question of EU law before the Commission was acte clair. C's application for permission for judicial review of the local authority's decision fell to be refused.

 

Legislation

Adults

The Safeguarding Vulnerable Groups Act 2006 (Miscellaneous Provisions) Regulations 2009
SI Number 2009/1548 Coming Into Force 12/10/2009
These Regulations prescribe the circumstances in which driving a vehicle will be a regulated activity under the Safeguarding Vulnerable Groups Act 2006, and prescribe a welfare service, a recipient of which will be a vulnerable adult under the Act. It will be an offence for an individual to drive a vehicle in the prescribed circumstances or to provide the prescribed welfare service, and for anyone to use an individual to provide the transport or welfare services as prescribed, if the individual is barred by the Independent Safeguarding Authority from engaging in regulated activity with children or vulnerable adults. Later, duties in relation to the subject to monitoring provisions in the Act will also apply. The Government proposes to commence these Regulations at the same time as the commencement of the full range of barring under the new Vetting and Barring Scheme), which is intended to come into force on 12 October 2009.

 

Benefits

The Social Security (Miscellaneous Amendments) (No.2) Regulations 2009
SI 2009/1490 Coming Into Force 13/7/2009
The purpose of the instrument is to ensure that the department’s legislation supports its changing policy on how claims for benefit are made ie more telephone claims and that the rules for changing benefit decisions more accurately reflect what customers do in relation to claiming benefit in particular circumstances.

The Social Security (Industrial Injuries) (Prescribed Diseases) Amendment Regulations 2009
SI 2009/1396
This instrument makes provision to enable a person who has osteoarthritis of them knee, and who worked underground as a coal miner for 10 years in aggregate before 1986, to apply for Industrial Injuries Disablement Benefit. It also provides for work from 1986 onwards as a coal face worker at a non-mechanised coal face, and for certain other categories of work, such as a conveyor belt cleaner, to be included in the 10 years qualifying period.

 

Children

The Childcare (General Childcare Register) (Amendment) Regulations 2009
SI 2009/1545
This instrument amends the Childcare (General Childcare Register) Regulations 2008 (S.I.2008 No. 975) The amendments bring requirements for those childcare providers registered in the General Childcare Register about handling of parental complaints and use of childminding assistants into line with requirements for providers registered in the Early Years Register which will increase flexibility for providers. They also remove the requirement for criminal records bureau checks on the families of children being cared for in their own homes.

The Childcare (Disqualification) Regulations 2009
SI 2009/1547 Coming Into Force 1/9/2009 except for Sch.1, para.4 on 19/10/2009.They replace and consolidate, with modifications, the Childcare (Disqualification) Regulations 2007 (S.I. 2007/723) and the Childcare (Disqualification) (Amendment) Regulations 2008 (S.I. 2008/1740). The Regulations remove automatic disqualification of a person whose registration has been refused or cancelled due to the non-payment of fees, reinstate the power of Her Majesty’s Chief Inspector of Education, Children’s Services and Skills to waive disqualification for people applying to join the voluntary part of the General Childcare Register and cite an additional power in the preamble. The Regulations also bring up to date references to new legislation in Guernsey and Northern Ireland.

The Childcare (Inspections) (Amendment) Regulations 2009 SI 2009/1508
The 2008 Regulations make provision about inspections by Her Majesty’s Chief Inspector of Education, Children’s Services and Skills of childminding and other childcare provision registered under Part 3 of the Childcare Act 2006. The amendment made by this instrument provides that the Chief Inspector must inspect all early years provision provided by a person to whom regulation 3(1) of the 2008 Regulations applies once between 1st September 2008 and 1st August 2012.

 

Education

The Childcare (Fees) (Amendment) Regulations 2009
SI 2009/1507 Coming Into Force 1/9/2009
These Regulations amend the Childcare (Fees) Regulations 2008 (2008 No.1804) to increase the fees payable to her Majesty’s Chief Inspector of Education, Children’s Services and Skills in respect of registration by childcare providers in the early years register under Part 3 of the Childcare Act 2006 . They increase the fee to accompany any application for registration in the register and the annual fee payable by providers registered in it. No changes are made to the other fees prescribed by the 2008 Regulations.

The Childcare (Inspections) (Amendment) Regulations 2009
SI 2009/1508 Coming Into Force 31/7/2009
The amendment made by this instrument provides that the Chief Inspector must inspect all early years provision provided by a person to whom regulation 3(1) of the 2008 Regulations applies once between 1st September 2008 and 1st August 2012.

The Education and Skills Act 2008 (Commencement No. 3) Order 2009
Provisions coming into force on 19th June 2009; Section 86 of the Act (learning aims for persons aged 19 and over) comes into force on 19th June 2009 for the purposes of exercising any power to make subordinate legislation conferred by section 4A, 4B or 4C of, or Schedule 1A to, the Learning and Skills Act 2000; Chapter 1 of Part 4 of the Act (regulation and inspection of independent educational institutions in England) comes into force on 19th June 2009 for the purposes of making regulations. The following provisions of the Act come into force on 1st September 2009 section 81 (careers education: information and advice); section 146 (abolition of requirement of approval for independent schools: England); section 147 (approval of independent schools: consequential amendments); section 148 (approval of independent schools: transitional provision); Schedule 2 (repeals and revocations) so far as it repeals the words in section 349(1) of the Education Act 1996, and section 169(2) so far as it relates to that repeal.

The Early Years Foundation Stage (Welfare Requirements) (Amendment) Regulations 2009
SI 2009/1549 Coming Into Force 1/9/2009
The Early Years Foundation Stage (Welfare Requirements) (Amendment) Regulations 2009 amend the Early Years Foundation Stage (Welfare Requirements) Regulations 2007. The amendment inserts a requirement on registered early years providers to provide information to the Chief Inspector relating to disqualification from registration.

The Designated Teacher (Looked After Pupils etc) (England) Regulations 2009
SI 2009/1538 Coming Into Force 1/9/2009
These regulations require the governing body of a maintained school (ie community, foundation, voluntary aided, voluntary controlled, community, foundation special school and maintained nursery school) to ensure that the person designated by them as having responsibility for promoting the educational achievement of looked after children at school has the prescribed qualifications or experience to have the range of skills and knowledge needed to ensure that teaching and learning arrangements for looked after children at the school focus on promoting educational achievement .The designated teacher must be either: a qualified teacher who has successfully completed the induction period, as required and who is working as a teacher at the school; the head teacher or acting head teacher; or a person who has been carrying out the role of the designated teacher for at least six months before the regulations come into force and who is taking steps to become a qualified teacher and is likely to be so qualified by 1 September 2012.

The Education (Supply of Information) (Wales) Regulations 2009
SI 2009/1350 W.126
These Regulations require the employers of teachers registered with the General Teaching Council for Wales and supply agencies to report cases of misconduct and incompetence to the Council other than those cases they are required to provide information about to the Independent Barring Board under the Safeguarding Vulnerable Groups Act 2006.

The General Teaching Council for Wales (Additional Functions) (Amendment) Order 2009
SI 2009/1351 W.127
This Order amends the General Teaching Council for Wales (Additional Functions) Order 2000. That Order requires the General Teaching Council for Wales to maintain records relating to specified categories of persons

The Education (Areas to which Pupils and Students Belong) (Amendment) (Wales) Regulations 2009
SI 2009/1338 W.123
These Regulations amend the Education (Areas to which Pupils and Students Belong) Regulations 1996.

The General Teaching Council for Wales (Constitution) (Amendment) Regulations 2009
SI 2009/1352 W.128
The General Teaching Council for Wales (Constitution) Regulations 1999, as amended, provide for the constitution of the General Teaching Council for Wales. These Regulations amend the 1999 Regulations mainly as a consequence of the coming into force of provisions of the Safeguarding Vulnerable Groups Act 2006.

The General Teaching Council for Wales (Functions) (Amendment) Regulations 2009
SI 2009/1353 W.129
These Regulations amend the General Teaching Council for Wales (Functions) Regulations 2000.

The General Teaching Council for Wales (Disciplinary Functions) (Amendment) Regulations 2009
SI 2009/1354 W.130
These Regulations amend the General Teaching Council for Wales (Disciplinary Functions) Regulations 2001 as a consequence of the coming into force of provisions of the Safeguarding Vulnerable Groups Act 2006. The 2001 Regulations make provision about the disciplinary functions of the General Teaching Council for Wales.

The Education (Areas to which Pupils and Students Belong) (Amendment) (England) Regulations 2009
SI 2009/1301
These Regulations amend the Education (Areas to which Pupils and Students Belong) Regulations 1996.

The Designation of Schools Having a Religious Character (Independent Schools) (Wales) Order 2009
SI 2009/1218 W.103
This Order designates the independent schools named as having a religious character. Designation by this Order is not the method for acquiring a religious character or of changing religious character. Designation is the recognition of certain existing attributes of the school or its governing body as described in the Independent Schools (Religious Character of Schools) (Wales) Regulations 2003.

The Functions in relation to External Qualifications (Wales) Order 2009
SI 2009/1220 W.104
This Order relates to section 30 of the Education Act 1997 and in particular to the functions listed in section 30(1) so far as they relate to national vocational qualifications. The functions exercisable concurrently with the Qualifications and Curriculum Authority are keeping under review all aspects of national vocational qualifications; providing support and advice to persons providing courses leading to such qualifications with a view to maintaining high standards; publishing information relating to such qualifications; developing and publishing criteria for the accreditation of such qualifications; developing procedures for continued accreditation if any person ceases to be recognised. The functions exercisable solely by the Qualifications and Curriculum Authority are accrediting national vocational qualifications and making arrangements for tests. This Order prescribes for both sets of functions to be exercisable solely by the Welsh Ministers

The Education (Areas to which Pupils and Students Belong) (Amendment) (Wales) Regulations 2009
SI 2009/1338 (W.123)
These Regulations amend the Education (Areas to which Pupils and Students Belong) Regulations 1996(7)) such that they cease to make special provision about the areas to which further education students are to be treated as belonging. Regulations 2(2), 2(4), 2(5), 2(10) and 2(11) remove references to further education students in regulations 2(1) and 3(a) of the 1996 Regulations and revoke regulations 3(b), 7(2)(d), 8, 9, 10 and 11 of those Regulations. Regulation 2(3) also amends regulation 2 of the earlier Regulations so they do not apply for the purpose of determining the LEA responsible for identifying, assessing, making and maintaining statements and performance of other functions under Part 4 of the Education Act 1996 relating to children with special educational needs.

The Education (Supply of Information) (Wales) Regulations 2009
SI 2009/1350 (W.126)
These Regulations require the employers of teachers registered with the General Teaching Council for Wales (“the Council”) and supply agencies to report cases of misconduct and incompetence to the Council other than those cases they are required to provide information about to the Independent Barring Board under the Safeguarding Vulnerable Groups Act 2006. They revoke the 2003 Regulations which required misconduct cases to be reported to the Welsh Ministers and incompetence cases to be reported to the Council. Under these new Regulations all cases are to be reported to the Council.  Employers must make a report to the Council if they cease to use a registered teacher’s services on a specified ground or if they might have done so had that teacher not already ceased to provide his or her services. Agents must make a report to the Council if they have arranged for a registered teacher to carry out work on behalf of a local education authority, a governing body or a proprietor of an independent school and terminate those arrangements on a specified ground, or might have done so had the teacher not already terminated the arrangements or ceased to be available for work. The specified grounds are misconduct, professional incompetence and conviction of a relevant offence. A relevant offence is an offence other than one having no material relevance to a person’s fitness to be a registered teacher. The Schedule sets out the information to be provided in the reports.

The General Teaching Council for Wales (Additional Functions) (Amendment) Order 2009
SI 2009/1351 (W.127)
This Order amends the General Teaching Council for Wales (Additional Functions) Order 2000 which requires the General Teaching Council for Wales to maintain records relating to specified categories of persons. The amendments add to the category of persons about whom the Council must keep records, any qualified teacher that the Secretary of State has ceased monitoring under the Safeguarding Vulnerable Groups Act 2006; includes in the information that must be contained in the records kept by the Council the following: whether a person is being monitored or has ceased being monitored under the Safeguarding Vulnerable Groups Act 2006; whether a person has been barred under that Act; the terms of any restriction or prohibition imposed by the General Teaching Council for Northern Ireland; the terms of any restriction or prohibition imposed by An Chomhairle Mhúinteoireachta or the Teaching Council for the Republic of Ireland.

The General Teaching Council for Wales (Constitution) (Amendment) Regulations 2009
SI: 2009/1352 (W.128)
These Regulations amend The General Teaching Council for Wales (Constitution) Regulations 1999 as a consequence of the coming into force of provisions of the Safeguarding Vulnerable Groups Act 2006. Regulation 5 of the 1999 Regulations is amended so that a person who has been barred from regulated activity relating to children under the Safeguarding Vulnerable Groups Act 2006 is not eligible to be a member of the Council (whether by appointment or election) nor to vote in an election. Regulation 10 of the 1999 Regulations is amended so that if a Council member is so barred, that member ceases to hold office. The Regulations also update the references in the interpretation provisions in regulation 2 of the 1999 Regulations, and update the Schedule to the 1999 Regulations.

The General Teaching Council for Wales (Functions) (Amendment) Regulations 2009
SI 2009/1353 (W.129)
These Regulations amend the General Teaching Council for Wales (Functions) Regulations 2000 as follows: Regulation 4A of the 2000 Regulations is omitted such that decisions of the General Teaching Council for England as to a teacher’s suitability are no longer binding on the General Teaching Council for Wales and each General Teaching Council will therefore now have to determine the question of suitability afresh; A new regulation 18A is inserted which requires the Council to supply information set out in Schedule 2 to the 2000 Regulations to An Chomhairle Mhúinteoireachta or the Teaching Council for the Republic of Ireland. A consequential amendment is made to paragraph 11A of Schedule 2 to the 2000 Regulations, so that when the Council decide a person is not suitable to be a teacher they must, if requested, provide particulars of the grounds on which the decision was based to An Chomhairle Mhúinteoireachta or the Teaching Council for the Republic of Ireland.

These Regulations add the following to the matters (set out in Schedule 1 to the 2000 Regulations) to be recorded in the register of qualified teachers maintained by the Council: whether the person is subject to monitoring under the Safeguarding Vulnerable Groups Act 2006 or, if not, whether the Secretary of State has ceased monitoring; details of any restrictions imposed by the General Teaching Council for Northern Ireland; details of any restriction imposed by An Chomhairle Mhúinteoireachta or the Teaching Council for the Republic of Ireland. The Regulations also add the following to the information set out in Schedule 2 to the 2000 Regulations (which must be provided by the Council to employers and others): whether a person has been barred from regulated activity relating to children under the Safeguarding Vulnerable Groups Act 2006; whether a person is subject to monitoring under the Safeguarding Vulnerable Groups Act 2006, or if not, whether the Secretary of State has ceased monitoring; details of any restriction or prohibition imposed by the General Teaching Council for Northern Ireland; details of any restriction or prohibition imposed by An Chomhairle Mhúinteoireachta or the Teaching Council for the Republic of Ireland.

The General Teaching Council for Wales (Disciplinary Functions) (Amendment) Regulations 2009
SI 2009/1354 (W.130)
These Regulations amend the General Teaching Council for Wales (Disciplinary Functions) Regulations 2001 as a consequence of the coming into force of provisions of the Safeguarding Vulnerable Groups Act 2006. The 2001 Regulations make provision about the disciplinary functions of the General Teaching Council for Wales. Regulation 9 of the 2001 Regulations is amended so that the functions of an Investigating Committee of the General Teaching Council for Wales are excluded if the Independent Barring Board have included or want to consider including the teacher in the barred lists maintained under the Safeguarding Vulnerable Groups Act 2006. A new regulation 18A is inserted requiring the Council, if requested, to inform the Secretary of State when they make a prohibition order against a teacher on the grounds of unacceptable professional conduct or conviction for a relevant offence. This information may be required in connection with the Secretary of State’s functions in relation to teachers' pensions

The Education (Special Educational Needs Co-ordinators) (England) (Amendment) Regulations
SI 2009/1387
These Regulations come into effect from 1 September 2009 with the effect that all newly appointed Special Educational Needs Co-ordinators (SENCOs) in maintained schools in England must undertake nationally approved training. For these purposes a person is newly appointed if they have less than a total of twelve months experience in the role. A person is given three years to complete the training. After that point in time the governing body will be required to ensure that the person only remains as the SENCO if they hold the relevant qualification. The three-year period to complete the training provides flexibility to suit the individual circumstances of SENCOs and schools – for example, those with caring responsibilities – though in most cases the course will be completed within a year on a part-time basis, assuming no credit is given for previous experience and qualifications.

 

Environment

The Pollution Prevention and Control (Designation of Directives) (England and Wales) Order 2009
Coming into force 19th June 2009 The following Directives are designated as relevant directives for the purposes of paragraph 20(2)(c) of Schedule 1 to the Pollution Prevention and Control Act 1999: Directive 2000/60/EC of the European Parliament and of the Council (establishing a framework for Community action in the field of water policy; and Directive 2006/118/EC of the European Parliament and of the Council (on the protection of groundwater against pollution and deterioration.

The Contaminants in Food (Wales) Regulations 2009
Coming into force 1 July 2009
These Regulations make provision for a purpose mentioned in section 2(2) of the European Communities Act Subject to the transitional arrangements contained in Article 11 and in Article 2 of the Commission Regulation 629/2008, a person who contravenes or fails to comply with any of the Community provisions specified in paragraph (2) is guilty of an offence.(2) The provisions mentioned in paragraph (1) are —(a) Article 1(1), (prohibition on the placing on the market of foodstuffs containing contaminants in excess of prescribed limits contained in the Annex), as read with the Annex and, in the case of groundnuts, nuts, dried fruit and maize, with Article 4; (b) Article 3 (prohibitions on use, mixing and detoxification); (c) Article 1(1) of Commission Regulation 124/2009 (prohibitions on marketing or mixing foods containing coccidiostats or histomonostats at levels in excess of prescribed limits). (3) Anyone convicted of an offence under paragraph (1) is liable on summary conviction to a fine not exceeding level 5 on the standard scale.

The Packaging (Essential Requirements) (Amendment) Regulations 2009
SI 2009/1504 Coming Into Force 10/7/2009
This instrument amends the Packaging (Essential Requirements) Regulations 2003 (“the 2003 Regulations”) to continue an exemption regarding heavy metal concentration levels in plastic crates and pallets.

EU Law

Commission v United Kingdom (2009)
Case C-417/08 ECJ (5th Chamber) Judgment Date: 18 June 2009
The UK and Northern Ireland has failed to fulfil its obligations under Directive 2004/35 on environmental liability.

Commission Decision of 29 May 2009 granting a derogation requested by the United Kingdom of Great Britain and Northern Ireland with regard to England, Scotland and Wales pursuant to Council Directive 91/676/EEC concerning the protection of waters against pollution caused by nitrates from agricultural sources (notified under document number C(2009) 3853) (2009/431/EC)
Publication Date: 06 June 2009 [2009] OJ L141/48
This Decision grants a derogation requested by the UK with regard to England, Scotland and Wales, for the purpose of allowing a higher amount of livestock manure than that provided for in the first sentence of Directive 91/676 Annex III para.2(2) and in point (a) thereof, subject to the conditions laid down in this Decision.

Directive 2009/28/EC of the European Parliament and of the Council of 23 April 2009 on the promotion of the use of energy from renewable sources and amending and subsequently repealing Directives 2001/77/EC and 2003/30/EC
Publication Date: 05 June 2009 [2009] OJ L140/16 In Force: 25 June 2009
This Directive establishes a common framework for the promotion of energy from renewable sources. It sets mandatory national targets for the overall share of energy from renewable sources in gross final consumption of energy and for the share of energy from renewable sources in transport. It lays down rules relating to statistical transfers between Member States, joint projects between Member States and with third countries, guarantees of origin, administrative procedures, information and training, and access to the electricity grid for energy from renewable sources. It also establishes sustainability criteria for biofuels and bioliquids. Directive 2001/77 art.2, art.3(2), and arts 4 to 8 are deleted with effect from April 1, 2010. Directive 2003/30 art.2, art.3(2), (3) and (5), and arts 5 and 6 are deleted with effect from April 1, 2010. Directives 2001/77 and 2003/30 are repealed with effect from January 1, 2012. This Directive enters into force on June 25, 2009, and must be implemented by the Member States by December 5, 2010

Directive 2009/30/EC of the European Parliament and of the Council of 23 April 2009 amending Directive 98/70/EC as regards the specification of petrol, diesel and gas-oil and introducing a mechanism to monitor and reduce greenhouse gas emissions and amending Council Directive 1999/32/EC as regards the specification of fuel used by inland waterway vessels and repealing Directive 93/12/EEC
Publication Date: 05 June 2009 [2009] OJ L140/88 In Force: 25 June 2009
This Directive amends Directive 98/70 as regards the specification of petrol, diesel and gas-oil and introducing a mechanism to monitor and reduce greenhouse gas emissions and amends Directive 99/32 as regards the specification of fuel used by inland waterway vessels. Directive 93/12 is repealed. The Directive enters into force on June 25, 2009, and must be implemented by the Member States by December 31, 2010.

Decision No 406/2009/EC of the European Parliament and of the Council of 23 April 2009 on the effort of Member States to reduce their greenhouse gas emissions to meet the Community's greenhouse gas emission reduction commitments up to 2020
Publication Date: 05 June 2009 [2009] OJ L140/136 In Force: 25 June 2009
This Decision lays down the minimum contribution of Member States to meeting the greenhouse gas emission reduction commitment of the Community for the period from 2013 to 2020 for greenhouse gas emissions. The Decision enters into force on June 25, 2009.

Regulation (EC) No 443/2009 of the European Parliament and of the Council of 23 April 2009 setting emission performance standards for new passenger cars as part of the Community's integrated approach to reduce CO2 emissions from light-duty vehicles
Publication Date: 05 June 2009 [2009] OJ L140/1 In Force: 08 June 2009
This Regulation sets emission performance standards for new passenger cars registered in the Community, which forms part of the Community's integrated approach to reducing carbon dioxide (CO2) emissions from light-duty vehicles, to achieve the overall objective of the EC of 120g CO2/km as average emissions for the new car fleet. This Regulation sets the average CO2 emissions for new passenger cars at 130g CO2/km, by means of improvement in vehicle motor technology. From 2020 onwards, the target for average emissions for the new car fleet will be 95 g CO2/km. The Regulation enters into force on June 8, 2009, and repeals Decision 1753/2000 with effect from January 1, 2010.

Directive 2009/29/EC of the European Parliament and of the Council of 23 April 2009 amending Directive 2003/87/EC so as to improve and extend the greenhouse gas emission allowance trading scheme of the Community
Publication Date: 05 June 2009 [2009] OJ L140/63 In Force: 25 June 2009
This Directive amends Directive 2003/87 to improve and extend the greenhouse gas emission allowance trading scheme of the Community in order to reduce the overall greenhouse gas emissions of the Community by at least 20 per cent below 1990 levels by 2020. The Directive enters into force on June 25, 2009, and must be implemented by the Member States by December 31, 2012. However, the Member States must implement art.9a(2)of Directive 2003/87, as inserted by art.1(10) of this Directive and art.11 of Directive 2003/87, as amended by art.1(13) of this Directive, by December 31, 2009.

Directive 2009/31/EC of the European Parliament and of the Council of 23 April 2009 on the geological storage of carbon dioxide and amending Council Directive 85/337/EEC, European Parliament and Council Directives 2000/60/EC, 2001/80/EC, 2004/35/EC, 2006/12/EC, 2008/1/EC and Regulation (EC) No 1013/2006
Publication Date: 05 June 2009 [2009] OJ L140/114 In Force: 25 June 2009
This Directive applies to the geological storage of carbon dioxide in the territory of the Member States, their exclusive economic zones and on their continental shelves within the meaning of the United Nations Convention on the Law of the Sea. Carbon dioxide capture and geological storage aims to contribute to mitigating climate change. It consists of the capture of carbon dioxide (CO2) from industrial installations, its transport to a storage site and its injection into a suitable underground geological formation for the purposes of permanent storage. This Directive also amends Directives 85/337, 2000/60, 2001/80, 2004/35, 2006/12, 2008/1 and Regulation 1013/2006. The Directive enters into force on June 25, 2009, and must be implemented by the Member States by June 25, 2011.

 

Health and Social Care

The Health and Social Care Act 2008 (Commencement No. 10) Order 2009 SI 2009/1310
This Order brings into force the amendment to section 60 of the Health Act 2006 (c.28) which requires the Appointments Commission to exercise so much of any function of the Privy Council relating to the appointment of members of the Office of the Health Professions Adjudicator as the Privy Council specifies in a direction.

 

Local Government

The Audit Commission for Local Authorities and the National Health Service in England (Specified Organisations) (England) Order 2009 SI 2009/1360
This Order specifies the organisations in respect of which the Audit Commission for Local Authorities and the National Health Service in England is under a duty to prevent certain inspections. The duty applies in relation to inspections by certain inspectorates where the Audit Commission considers the proposed inspection or manner of inspection would impose an unreasonable burden on the organisation concerned.

The Freedom of Information (Time for Compliance with Request) Regulations 2009 SI 2009/1369
The Freedom of Information Act 2000 provides for the right to make a request for information to a public authority and entitles a person making such a request: (a) to be informed in writing by the public authority whether it holds information of the description specified in the request, and (b) if that is the case, to have that information communicated to him (section 1(1)). Section 10(1) of the Act requires a public authority to comply with a request promptly, and in any event, not later than twenty working days following the date of receipt. Where the authority gives the applicant a fees notice, the working days in the period beginning with the day on which the fees notice is given to the applicant and ending with the day on which the fee is received by the authority are to be disregarded for the purpose of calculating the twentieth working day following the date of receipt referred to in section 10(1) (section 10(2)).These Regulations are made under section 10(4) of the Act. They allow certain public authorities a longer maximum period of time than is provided under section 10(2) to comply with section 1(1) of the Act, provided that this longer period expires on a date not later than the sixtieth working day following the receipt of the request for information and subject to the obligation on the public authority to comply “promptly”. Regulation 2 provides that where a request for information is received by the managers of a controlled school, voluntary school, grant-maintained integrated school or pupil referral unit, for the purposes of section 10(1) or (2) of the Act, working days which are not school days are not to be taken into account in calculating the twentieth working day following the date of receipt. The public authority must comply with the request within twenty working days of the date of receipt, disregarding any working day which, in relation to the school, is not a school day, or within sixty working days following the date of receipt, whichever is the sooner. The managers of a controlled school, voluntary school, grant-maintained integrated school or pupil referral unit are a public authority, as defined by section 3 of the Act. A body, person or office holder can be a public authority either by: 1) being listed in Schedule 1 to the Act; 2) being designated by order under section 5 of the Act; or 3) being a publicly-owned company as defined by section 6 of the Act. The managers of a controlled school, voluntary school, grant-maintained integrated school or pupil referral unit are listed in paragraph 54 in Part 4 of Schedule 1 to the Act.

The Legislative Reform (Local Government) (Animal Health Functions) Order 2009
SI 2009/1375
This Order is made under section 1 of the Legislative and Regulatory Reform Act 2006. It repeals section 101(7) of the Local Government Act 1972 which imposes a prohibition on local authorities from delegating any of their functions under the Diseases of Animals Act 1950 (c. 36) to each other. The Diseases of Animals Act 1950 was repealed and replaced by the Animal Health Act 1981 which consolidated historic animal health and welfare legislation. The animal health functions to which this Order refers at article 2(1)(a) are, therefore, the functions which local authorities must discharge under the Animal Health Act 1981. This Order also repeals section 101(7A) of the Local Government Act 1972 (which provides a derogation from the prohibition in section 101(7) with respect to principal councils in Wales) and paragraph 26(2) of Schedule 15 to the Local Government (Wales) Act 1994) (which inserted section 101(7A)).

 

Planning

The Infrastructure Planning (National Policy Statement Consultation) Regulations 2009 SI 2009/1302
The Planning Act 2008 provides for the grant of development consent for development consisting of nationally significant infrastructure projects. The Act also provides for the establishment of the Infrastructure Planning Commission (“IPC”) who will examine and, where a National Policy Statement has been designated, determine applications for development consent. Section 5 of the Act provides for the designation by the Secretary of State of NPSs. Before designating a NPS, the Secretary of State must comply with the consultation and publicity requirements set out in the Act and comply with the Parliamentary requirements in section 9. Section 7 requires the Secretary of State to consult with those persons prescribed by regulation. This statutory instrument prescribes those consultees.

Crossrail (Planning Appeals) (Written Representations Procedure) (England) (Amendment) Regulations 2009
(SI 2009/1312) In Force: 29 June 2009
These Regulations amend the Crossrail (Planning Appeals) (Written Representations Procedure) (England) Regulations 2008 (SI 2008/2908) by deleting the final sentence of Paragraph A5 of the Appeal Questionnaire in Sch.2 which was inserted in error.

Electricity (Competitive Tenders for Offshore Transmission Licences) Regulations 2009
(SI 2009/1340)In Force: 02 June 2009
These Regulations set out the process for competitive tenders that will apply to the grant of offshore transmission licences.

Radioactive Contaminated Land (Scotland) Amendment Regulations 2009
(SSI 2009/202) In Force: 26 June 2009
These Regulations amend the Radioactive Contaminated Land (Scotland) Regulations 2007 (SSI 2007/179) which extended the contaminated land regime contained in the Environmental Protection Act 1990 to most radioactive contaminated land, subject to certain modifications. These Regulations make two additional modifications in relation to radioactive contaminated land other than land contaminated by a nuclear occurrence. They provide for the Scottish Environment Protection Agency to determine whether such land is "contaminated land". They also modify the definition of "substance".

Climate Change Act 2008 (2020 Target, Credit Limit and Definitions) Order 2009 (SI 2009/1258)
In Force: 31 May 2009
This Order amends the Climate Change Act 2008 so that the Secretary of State may only set a budget for the 2018-2022 budgetary period which is equivalent to a 34 per cent reduction in the net UK carbon account in 2020. It also sets a limit on the net amount of carbon units that may be credited to the net UK carbon account for the 2008-2012 budgetary period of zero carbon units; and defines what are to be regarded "international aviation" and "international shipping".

The Town and Country Planning (Inquiries Procedure) (Scotland) Amendment Rules 2009
SI 2009/212 Coming Into Force 3/8/2009
The purpose is to make changes to the following existing inquiry procedure rules: The Town and Country Planning (Inquiries Procedure) (Scotland) Rules 1997 (procedure where Ministers decide the case); and The Town and Country Planning (Determination by Appointed Person) (Inquiries Procedure) (Scotland) Rules 1997 (procedures where a person appointed by Ministers decides the case), to remove from their jurisdiction appeals that are covered by the Town and Country Planning (Appeals) (Scotland) Regulations 2008 (the 2008 Regulations) which come into force on 3 August 2009. These amendment rules will clarify the administrative arrangements for handling planning inquiries, and are essential to prevent many planning cases which will be handled by the Scottish Government falling under two separate and different statutory procedures.

The Town and Country Planning (Temporary Stop Notice) (Scotland) Regulations 2009
SI 2009/213 Coming Into Force 3/8/2009
It is the Scottish Government’s policy intention that as few restrictions as possible should be placed on the ability of a planning authority to consider the use of a Temporary Stop Notice where appropriate. The Planning etc. Scotland Act 2006 provides that such a notice cannot prohibit the use of a building as a dwelling house but makes provision for Scottish Ministers to make regulations setting out any other circumstances where the use a notice may be appropriate. These Regulations set out one further restriction in that Regulation 2(2) does not allow a Temporary Stop Notice to be used to ‘move on’ a person living in a caravan where the caravan was (a) already on a site and (b) was being occupied at the time as a person’s main residence. These Regulations therefore extend similar protection to people whose main residence a caravan as is provided in the primary legislation to people is living in buildings.

The Land Registration (Proper Office) Order 2009
SI 2009/1393 Coming Into Force 1/10/2009
Her Majesty’s Land Registry has offices throughout England and Wales. This order designates particular offices of Land Registry as the proper office for the receipt of specified descriptions of application under the Land Registration Act 2002 (the Act).

The Planning etc. (Scotland) Act 2006 (Commencement No.9) Order 2009
SI 2009/219
Bringing into operation various provisions of the 2006 Act on 3/8/2009.
The Commencement Order will bring into force the majority of the remaining provisions relating to new development management procedures contained in the 2006 Act on 3 August 2009. This brings into effect a considerable number of sections.

The Town and Country Planning (Miscellaneous Amendments) (Scotland) Regulations 2009
SI 2009/220 Coming Into Force3/8/2009
The 2009 Regulations make technical amendments to various pieces of subordinate legislation in part to ensure older legislation can accommodate the new arrangements in the modernised planning system and in part to deal with errors and omissions in some of the newer instruments which came to light during Parliamentary processing or subsequently.