Local Government - May 2009

 

Cases and Legislation

 

Cases

Administrative Law
Adults
Anti-Social Behaviour      
Children and Young Persons
Criminal
Education
Employment
Housing
Local taxation
Planning
Trading Standards
VAT

Legislation 

Adults
Children and Young Persons
Education
Elections
Employment
Enforcement
Health and Safety at Work
Housing
Landlord and tenant
Local government
Non domestic rating
Planning
Social security and benefits

 

Cases

Administrative Law

(1) Bard Campaign (2) David Bliss v Secretary of State for Communities & Local Government & Weston Front

The housing green paper outlined plans for the building more homes including eco-towns, which would have a reduced impact on the environment. The green paper sought views on a range of housing proposals, responses to specific questions and any general comments.  At the same time, a prospectus was published outlining the criteria for eco-towns and inviting bids from local authorities and others. The SoS assessed them, then a cross-government review determined a shortlist.  A consultation paper was issued seeking views on eco-town benefits and on the shortlisted locations.  Shortly before the end of the consultation period, the claimants applied for judicial review of the decision include a particular location in the shortlist, also seeking a declaration that Directive 2001/42 was applicable to the eco-towns policy.   They submitted that the SoS had failed (1) to consult, or to consult properly, on the principle of eco-towns; (2) to consult on the key locational criteria for eco-towns (3) to consult on the locations for all the strong bids rather than on the shortlisted locations (4) to provide adequate information to enable informed representation to be made and (5) to provide adequate time for consultation given the late production of material.  The Court disagreed.

R (on the application of Breckland District Council & ors) v  Boundary Committee:

R (on the application of East Devon District Council) v Boundary Committee, Secretary of State for Communities & Local Government & Devon County Council

The SoS invited local authorities to submit proposals for changes from two tiers to single tier local government, under the Local Government and Public Involvement in Health Act 2007, then requested the BC to advise on alternative unitary solutions for Norfolk and Devon.  It drafted proposals thinking that it was only entitled to submit one for each. The documents set out stages including inviting representations.  BC decided to assess affordability after it had reached a conclusion on the draft proposals and had published them for public comment.  The financial information would not be published, although BC later made some financial information available on its website. The local authorities challenged the consultation process.  They had partial success at first instance but appealed other issues. The Court of Appeal held as follows. (1) The process of consultation had to be carried out properly, but the BC had a degree of flexibility as to how consultation should be carried out, because of the subject matter and the words "take such steps as they consider sufficient" in s.6(4)(b) of the Act. The critical parts of s.6(4) were the requirement to publish a draft of the alternative proposal and the requirement to enable "persons who may be interested" to be informed of the draft proposal so that they may make representations about it.  It was necessary to publish a summary of the reasons for change was proposed and why it met the criteria. BC had to publish a draft of the whole proposal, not just part of it, and to publish enough material, in a form which members of the public would understand to, enable them to respond intelligently.  There was a duty to consult on affordability. (2) Consultation could proceed in stages, but the full package had to be sufficiently identified as part of the final stage of publication, and there had to be adequate time after the publication of the final part of the package for the package to be considered as a whole and for representations to be made. (3) The publication of the financial information given did not alone constitute sufficient consultation on affordability, and insufficient time had been given. (4) BC could consult on more than one proposal.  (5) Guidance was given on the scope of the SoS’s request to the BC. (6) BC had to consider, and had considered, the original proposals submitted to the SoS.  The appeal was partially successful but the Court declined to oblige the SoS or the BC to restart or abandon the process.

Adults

Chantelle Peters (By her Litigation Friend Susan Mary Miles) (Claimant) v (1) East Midlands Strategic Health Authority (2) P Halstead (Defendants) (3) Nottingham City Council

The Claimant was severely disabled as a result of being born with congenital rubella.  The Health Authority had to pay damages to the Claimant as a result of their negligence.  At issue was whether the cost of the Claimant's care should be paid for by the Local Authority, as they had a statutory duty of making arrangements for providing the Claimant with care and accommodation, or whether it should be paid for by the tortfeasor.  The Court of Appeal held that the Claimant was perfectly entitled, as a matter of law, to opt for self funding and damages rather than the statutory obligations of the Local Authority, provided there was no double recovery. 

R (on the application of V (By his mother and Litigation Friend LG) (Claimant) v Independent Appeal Panel for Tom Hood School (Defendant) & (1) Board of Governors of Tom Hood School (2) Waltham Forest London Borough Council (3) Secretary of State for the Department for Children, Schools and Families

The court held that article 6 of the European Convention on Human rights did not apply to a hearing before an independent appeal panel that upheld a decision permanently excluding a school pupil ruling that on the balance of probabilities the pupil had been in possession of a knife.  The claimant pupil contended that the hearing amounted to the determination of a criminal charge.  The court held the proceedings before the panel were not classified as criminal under domestic law and the proceedings did not constitute the determination of a criminal charge.  in addition, the hearing before the panel was not a determination of V's civil rights and obligations so article 6 was not engaged. 

R (on the application of Elaine Mcdonald) v Kensington & Chelsea London Borough Council

Where a local authority was a obliged to meet the assessed needs of a lady who had a neurogenic bladder as a result of a stoke, they were entitled to meet the need in the most economic manner – they could provide incontinence pads rather than a night time carer to take her to the toilet.  The National Health Service and Community Care Act 1990 gave the Local Authority some flexibility as to how the needs could be met.

R (on the application of AM) v Birmingham City Council & University of Birmingham

When the Local Authority made the decision not to provide the Claimant, who was confined to a wheelchair and required the use of a hoist operated by 2 carers to use a toilet, with a will a hoist and toilet change table at the University where he had been accepted for degree studies, it was apparent that they had carried out a detailed thought process in accordance with section 49A of the Disability Discrimination Act 1995.  The Application for judicial review was refused as although the court could not be assured that decision by the Local Authority had been put through a Disability Discrimination Act filter and the had not been a reference to the general duties required by the Act in the decision itself, the substance of the decision was not flawed.   

R (on the application of Michael Woods) v Rochdale Metropolitan Borough Council

W had suffered from a number of conditions but was assessed to have no psychiatric illness or cognitive impairment, and to have legal capacity and the ability to take responsibility for his own actions. He was supported by a community care and housing package, although he thought he was being given too much help.  His judicial review claim form was supported by a witness statement given by his mother, in which she said her son's physical and mental health had deteriorated, that the local authority had ignored her request that it carry out a review assessment, and that W was getting insufficient support, so she and his grandmother were having to support him daily. There was an issue as to whether he knew about and wanted to bring the claim, and as to his capacity to do so. Following the court's direction, W's solicitors instructed a psychiatrist who interviewed W and concluded that he did not have capacity to litigate. The proceedings could not go ahead, at least until the issue of his capacity had been determined. W submitted that the court should stay the application for permission pending a possible application to the Court of Protection. The Council submitted that the court should proceed on the assumption that W did have capacity to litigate and determine his application on the merits and that the claim was bound to fail because there was no real prospect of persuading the court that it was acting in breach of its statutory duty.  The Court held that

The evidence fell short of establishing on the balance of probabilities that he lacked capacity.  It was doubtful whether he was ever fully conscious of the proceedings being brought in his name, or that he had ever complained to anyone.  The evidence that he did not want the level of support that the local authority was prepared to offer was overwhelming. The real complaint seemed to be that the local authority was not forcing W to accept further assistance when he was unwilling to receive it. That complaint emanated not from W but from his mother. Whatever W's capacity, the local authority was not acting in breach of its duties by taking W's wishes into account, and trying to persuade him to accept more help when he appeared resistant. It was not obliged to force him to accept that help against his will, even if he lacked capacity, which was not proven. There was nothing to be gained by staying the application until W's capacity had been determined as the complaint was without substance.

R (On The Application Of Steven Harrison) v Secretary Of State For Health (& (1) Wakefield District Primary Care Trust (2) Wakefield Metropolitan District Council (Interested Parties) : R (On The Application Of Valerie Garnham) v (1) Secretary Of State For Health (2) Islington Primary Care Trust  & Islington London Borough Council

The claimant (H) had been paid cash directly from their LA, and later the PCT, to pay carers. The trust subsequently informed H that they were unable to continue making the direct payments, due to the National Framework for NHS Continuing Healthcare and NHS-funded Nursing Care 2007.  H applied for judicial review on the grounds that (1) "services" under the National Health Service Act 2006 included cash payments and the secretary of state had the power to make cash payments; (2) their claim fell under art.8, as they had benefitted from the sense of autonomy and ability to control the choice and activities of their carers which they could achieve from receiving direct cash payments, and the policy was discriminatory contrary to art.14, on the ground of "other status", in that H were disabled people in receipt of healthcare services.  The Court held: (1) The secretary of state only had to provide healthcare services under the 2006 Act and not cash payments. A direct payment could not be a service and other provisions in the Act indicated that parliamentary intention had been that no cash payment could be made. The secretary of state did not have any power or duty to make direct payments. (2) The difference in H's private life without the benefit of cash payments was not so substantial as to constitute a very close connection with the right to respect for private and family life under art.8 for art.14 purposes. H was not in an analogous situation to persons to whom direct payments were provided by local authorities under community care legislation. There were substantial differences between community care legislation (which allowed for direct payments) and the services provided by the NHS under the Act. Community care legislation imposed a duty on LAs to meet the eligible needs of an individual. Furthermore, the different regimes dealt with separate policy issues which had different historical origins.

R (on the application of B) v Cornwall County Council & Brandon Trust

The Claimant (B) had a moderate learning disability and lived in supported living accommodation provided by the NHS Trust. A senior finance officer had previously calculated B’s total weekly expenditure exceeded B's relevant income and so the charge for contributions towards his care costs under s.17 Health and Social Services and Social Security Adjudications Act 1983 was assessed as nil. Responsibility for the care of individuals, including B, was then transferred to the Defendant LA and B's contribution liability was reassessed using documents and without discussions with B’s parents, who had been involved in the previous assessment. Items previously included were excluded on the grounds that there was a lack of evidence. B was informed that he was required to make weekly contributions of £68.50. The LA subsequently offered to meet with B’s parents but they failed to respond. B applied for judicial review of the LA’s decision to increase his weekly contribution on the basis that the LA had failed to properly assess his needs. The LA argued that any failure to sufficiently engage with B’s parents prior to undertaking the assessment had been rectified by its subsequent offer to meet with them and to review their decision on the basis of any new evidence they put forward.  The Claimant’s application was granted.  The charging decision was held unlawful on the following grounds:- (1) The LA had breached the relevant directions and guidance by performing an assessment without engaging B’s parents.  The breach was not immaterial and had not been rectified by the steps taken post decision. (2) The LA’s approach was defective, its discretion could not be fettered by the guidelines and holidays could be automatically disregarded as DRE. (3) The LA’s approach to B's care plans was unlawful: care plans had to be viewed in the whole context of a case.  Having recognised that they were deficient the LA should have rectified the care plans before a full charges assessment was made.   (5) It was unlawful to disallow expenditure as DRE because of a lack of evidence whilst giving B no opportunity to make good that evidential deficit. Further enquiries ought to have been made.

Mendes & Anor V Southwark London Borough Council  

M and his family were Portuguese nationals.  On entering the UK in 2007 M had found work but had left his job a year later as a result of an injury.  The LA subsequently provided temporary accommodation but later determined that as an economically inactive European Economic Area national M was not eligible for assistance. M applied for permission to apply for judicial review on the basis that the LA’s decision was wrong as he was only temporarily unable to work. The LA subsequently conceded that M was entitled to accommodation and M agreed to withdraw the judicial review application by consent. At the costs hearing the judge made no order for costs on the basis that there was no good reason for costs to be awarded. M appealed against the decision contending that he was legally justified in issuing proceedings as he and his family would otherwise have been homeless.  His appeal was allowed on the following grounds:- It was plain that M would have won his claim for judicial review as the LA had applied the wrong test in its decision.  The LA had conceded the point and reversed its decision. The claim for judicial review was issued at the last possible minute and not prematurely. Costs were incurred by M reasonably and the judge should have held that there was no reason to make no order for costs.

Anti Social Behaviour

Birmingham City Council v Dixon

The LA had applied for the ASBO on the grounds that D was allegedly a member of a known gang; that as a consequence of that membership D was likely to cause alarm, harassment or distress; and that D had engaged in antisocial behaviour. The application for the ASBO was adjourned and when the matter came back to court the LA sought to rely on evidence of alleged antisocial behaviour by D after the initial application was made. The magistrates' court held the evidence to be irrelevant and therefore inadmissible and did not make D subject to an ASBO. The LA appealed by way of case stated.  The High Court allowed the appeal.  It was held that evidence of the individual's post-complaint behaviour was admissible as relevant evidence to prove whether the individual had acted in an antisocial manner and as to whether it was necessary for the magistrates' court to make an antisocial behaviour order against the individual.

Children and Young Persons

Re T (a child) (2009)

The Council appealed against a care order made in the case of a two-year-old child (T). T had been brought to hospital by his parents with a serious head injury, which doctors decided was non-accidental. An assessment concluded that T could not safely be rehabilitated to the parents’ care unless they addressed issues of domestic violence, alcohol and anger management, but that they not accept that they had such issues. A care order application was adjourned and an independent social worker reported that T could be returned to his parents under a phased rehabilitation plan. The Council no longer sought a care order and all agreed to a supervision order. The judge nevertheless made a care order, because of the risk of further injury and because the parents continued to deny the findings of non-accidental injury. The Council submitted that the judge had failed to identify any clear and cogent or strong reason to justify forcing upon it a more draconian order than that for which it had asked and which the parties and guardian were agreed was appropriate.  The Court of Appeal agreed.  (1) The power to make a care order could not be neutered by an agreement between the parties. This was the responsibility of the court. The duty to treat the welfare of the child as paramount required the court to make a judicial investigation, human rights considerations dictated favouring a supervision order, and a decision contrary to the unanimous approach of the parties it had to be properly justified.  The judge had been fully entitled to explore the validity of the outcome on which the parties were agreed. (2) However, the judge had reached the wrong conclusion. Where it was agreed that a child should remain living at home, two principal reasons might be advanced for making a care order rather than a supervision order.  The first was that the local authority needed the power to plan for long term placement outside the family. This did not apply.  The second was that it was necessary for the local authority to share parental responsibility.  The judge's decision turned on the length of time that the regime provided for under the agreement might last if coupled only with a supervision order. This was wrong – it was something which would depend on the parents' continuing progress, which it was appropriate to leave to the local authority to review.

Re PB (Children) sub nom A Local Authority v (1) HP (2) MB

A judge had attached a penal notice to an order for contact which was made under section 34 of the Children Act 1989.  Two issues arose, namely, whether a circuit judge sitting in the county court had the power to attach a penal notice to such an order and the enforceability of a public law contact order by committal.  The Court of Appeal held that a contact order made under section 34 of the Children Act 1989 was enforceable by committal.  A circuit judge sitting in the county court had jurisdiction to attach a penal notice to the said order.  A circuit judge did not have to sit as a High Court judge pursuant to section 9 of the Supreme Court Act 1981 before they could attach a penal notice to

R (on the application of MM) v Lewisham London Borough Council

When M was 17 years' old she was referred to the LA’s social services department by a refuge on the basis she was fleeing domestic violence, was vulnerable, lacking life-skills and was shortly to move to hostel accommodation. The LA concluded that the referral was "vague" and that as M was in receipt of benefits and housing she did not meet the criteria for support and no further action need be taken.  M then applied for priority housing under the Housing Act 1996 on the basis that the domestic violence she had suffered had affected her mental and physical health.  The housing department did not respond.  Social services were again asked to carry out an assessment to determine whether she was a ‘child in need’.  The assessment concluded that M could stay in the refuge until the housing department had dealt with her housing application, that her needs were being met, and that the case ought to be closed.  M applied for judicial review against the LA’s two decisions on the basis that no reasonable LA could have concluded anything other than that she was a child in need.  The Court granted M’s application on the following grounds:- (1) The initial decision by the LA not to carry out an assessment could not stand as the referral had been dealt with without proper inquiry. Further inquiry should have been made if the referral was thought to be vague. (2) It was difficult to see how any social services authority could have concluded that her housing needs had been properly met for the four months she had been in a refuge nor how suitable accommodation could be provided in a hostel. The LA had made a number of assumptions without due inquiry. (3) On the basis of the information that could have been provided by the refuge as to M's housing need, no reasonable LA could have decided not to carry out an assessment. Indeed, the LA would have been bound to find that M needed to be provided with accommodation under s20 of the Children Act 1989.  The court urged the  LA to take action to ensure that child in need assessments were not carried out in a summary manner; its housing department did not simply fail to respond to applications in respect of children; steps were taken to ensure that the imminence of a child attaining 18 years was not taken as a basis for failing to take any action; and that there was due and proper contact between its housing and social services departments.

Re B-M (Children) Sub Nom Am v (1) A Local Authority (2) Children's Guardian

The children’s father (F) and mother (M) were Muslims and the paternal and the maternal families originated from Pakistan and were members of the Pathan community. M's brother had been convicted of the murder of his two-year-old daughter and his wife (W) had subsequently fled the family home with her son and had been moved to a secret location. M set fire to her home, when two of her children were present, in order to incriminate W. The children were taken into care and placed with long term foster parents who were non-Muslim, English and white. The LA acknowledged that the placement was culturally and religiously inappropriate but took the view that the physical safety of the children was paramount and that if they were placed with F or with culturally and religiously appropriate foster carers it was likely that their whereabouts would be discovered by M's family with serious consequences for the children. The judge decided that he had sufficient information and made final care orders to include an order for no contact between the children and their parents. F submitted that the judge did not have adequate information and should have made interim care orders only.  The CA refused permission to appeal on the grounds (1) There was no challenge to the judge's findings of fact, nor any criticism of his self-direction on the law. (2) Whilst F had been acquitted by the judge of playing any part in the conspiracy against W he had accepted that the children had suffered significant harm and that he had failed to protect them from it plus he  had been involved in an attempt to uncover the children’s whereabouts. The judge had carefully examined every aspect of F's case, and had reached conclusions which were manifestly open to him. He was fully entitled to give priority in the welfare equation to the physical safety of the children.

Criminal

Khurshied v Peterborough Magistrates' Court & Peterborough City Council

A private taxi driver, appealed by way of case stated against a decision of the magistrates' court not to adjourn his criminal trial. He was charged with plying for hire without a licence, driving without insurance and failing to enter the details of the booking. He pleaded not guilty. The Council served six witness statements on him, one of which was a witness statement by his operator stating that he had made a booking for the fare. The Council decided the operator could not give material evidence to support the prosecution case and, therefore, formally tendered him as a witness to K some eight days before the fixed trial date. The operator refused to let the prosecuting authority pass his contact details to the driver. The Council admitted the statement as an admission pursuant to the Criminal Justice Act 1967 s.10. At trial magistrates' court refused the driver’s application to adjourn, finding that the evidence that the hire had not been pre booked would not be altered by the operator giving live evidence, and convicted the driver on all charges. The High Court held that it was the fault of the Council that the statement was served as part of its case and once it was, the driver was entitled to rely upon it. The statement had been served relatively shortly before trial and the Council had done nothing to secure the operator’s attendance. The magistrates' court was required to determine whether the need for an adjournment was as a result of any fault of the driver and whether if it refused to grant an adjournment he would be able to properly advance his case. It was clear that the operator’s evidence was capable of going to the heart of the case and to the credibility of the other witnesses. The magistrates’ decision was wrong.

Blows v Herefordshire District Council

Blows appealed by way of case stated against a decision of a magistrates' court to award the Council its full prosecution costs following B's conviction for breaches of the Health Act 2006 by failing to prevent smoking in the public house he managed, and smoking in a smoke-free place. The magistrates' court fined him a total of some £1,000 and ordered him to pay "full prosecution costs" in the total of some £10,000. In reaching its decision on costs the magistrates' court found that they were reasonable and necessary expenditure, that the manner in which he conducted his defence had resulted in increased costs, that in relation to his means to pay he was not a reliable or credible witness; and that there were exceptional and aggravating factors to the case. Blows contended that the decision was Wednesbury unreasonable in that the costs were disproportionate to the fine and had been unreasonably incurred, and that the magistrates' court had failed properly to consider his financial circumstances.  The High Court held that the magistrates' court was entitled to reach this decision for the reasons that it had given.

R (on the application of Howitt) v Preston Magistrates' Court

Howitt applied for permission to seek judicial review of a decision of the defendant magistrates' court to convict him for offences under the Health Act 2006 and breaches of conditional discharges imposed in respect of previous offences. All the offences related to failures by to stop persons smoking in the public house that he managed. H contended that the Act was incompatible with the European Convention on Human Rights 1950 and that it was not open to the magistrates' court to find that the public house was a public place.  The Court did not agree.

R (on the application of Sharyn Donnachie) v Cardiff Magistrates' Court & Cardiff City Council

A cab company applied for judicial review of a magistrates' court decision ruling that original informations laid by Council were valid. The informations charged D with offences contrary to the Trade Descriptions Act 1968 by applying a false odometer reading to cars in areas outside Cardiff when the cars had been sold at auction. A series of hearings took place including a successful application for judicial review. The Council subsequently abandoned four of the summonses and amended the other two by taking out any mention of the location where the offences were alleged to have occurred. The company alleged that the local authority had no power to lay the original informations alleging offences outside the Cardiff area, and were void at the outset. The jurisdiction of the magistrates' court depended upon the Council having the necessary authority to prosecute, the informations alleged offences in areas outside Cardiff and the Council required authority under the Local Government Act 1972 section 222 to be able to lay them. The Court held (1) The Council had originally taken the erroneous view in law that the offences under were only committed at the point of sale rather than at the point the vehicle had had the odometer altered prior to sale. The inconsistencies meant that the district judge's acceptance of the factual scenario asserted on behalf of the local authority was wrong. (2) However, the Council had specifically considered and applied s.222.  The wording of s.222 was extremely wide. Accordingly, the informations were valid.

Education

H v East Sussex County Council & Ors

The child (M) had a complex condition that affected many areas of her development. The LEA amended M's statement prior to her transfer to secondary school, naming a day special school in Part 4. The mother (H) appealed seeking amendments to parts 2, 3, and 4 of the statement and asked that a residential special school be named. SENDisT held that the evidence did not show that M could only receive an appropriate education at a residential school and the judge upheld that decision. H appealed arguing that (1) the tribunal had wrongly rejected her expert evidence without saying that it was doing so and without explaining why it had done so; (2) the tribunal had failed to specify in part 3 what educational provision was required in respect of the "extra therapy" and "social services support" identified under part 2 of M's statement.  H was granted permission to appeal on the basis that there might be a conflict between the authorities at first instance as to the obligation of a tribunal when giving reasons dealing with expert evidence: H v Kent CC (2000) ELR 660 QBD and K v Lewisham LBC (2006) EWHC 1853 (Admin), (2007) ELR 11. The CA dismissed the appeal. The Court held that (1) the judges in the Kent and Lewisham cases were applying general principles rather than seeking to lay them down. The requirement to give reasons was concerned with fairness, and the guiding principles were set out in W v Leeds City Council (2005) EWCA Civ 988 (2005) ELR 617. The 2001 Regulations required the tribunal's decision to be recorded in a document which contained, or had annexed to it, a statement of the reasons in summary form and should not contain a fully comprehensive analysis or spell out every step in the reasoning or deal with every conceivable point. It was apparent from the tribunal's decision that it had weighed up the evidence and competing views and rejected the need for M to be at a residential school on the basis that the programme required by M could be provided by the day special school during school hours and by H with the support of other agencies after school hours. (2) The tribunal, in a case where care after school was important had considered the position overall but social services, were not the provision of education, and the tribunal did not consider them to be so.

Erica Joyce Connor V Surrey County Council

Erica claimed damages for psychiatric injury arising out of her employment by the defendant LEA as a head teacher of a maintained community school. The school was multi-cultural and most of the pupils were Muslim. In 2003 a parent (M) and the local authority's nominated governor (S) joined the governing body, both appeared to have an agenda to convert the school to an Islamic faith school and sought to dominate the agenda at meetings. M subsequently made persistent complaints of racism and Islamophobia and S subjected the head teacher to offensive verbal abuse. The leader of governor services brought the matter to the attention of the LA in 2003 and concerns were expressed about the effect of S and M's behaviour on C. Requests were made by C and the chairman that the LA investigate the governing body. A review concluded that the governing body was dysfunctional, the LA arranged for mediation, M was ultimately removed and subsequently stirred unrest in the community and made a formal complaint of racism and Islamophobia.   In September 2005 C was signed off of work with stress and depression which she attributed to her work environment and the perceived lack of support by her employer and she subsequently issued proceedings.  The Court held: (1) From late 2003 until the summer of 2005 the governing body was dysfunctional as a result of the conduct of M and S. They had sought to monopolise meetings with a view to imposing their own agenda and were prepared to do so regardless of the interests of the school and anyone else who resisted that agenda. (2) There were warning signs that C was stressed and in June 2004 concern was expressed of the effect of S and M on C's health. The LA should have foreseen that from June 2004 onwards that C was at risk of psychiatric injury from stress and it owed C a duty not to expose her to unreasonable risk of psychiatric injury. (3) The LA had breached its duty of care to C. No steps were taken by the LA following the review to exercise its powers of intervention. The LA should have issued a formal warning no later than the end of February 2005, which would have enabled a board to be set up by May at the latest. Taking over the body would have removed the influence of M and S, demonstrated that the LA was supporting the school and C and helped alleviate the stress and its harmful consequences. (4) C had to be compensated for a severe depressive episode associated with symptoms of post-traumatic stress disorder which had prevented her from pursuing her teaching career. Damages in the sum of £387,778.22 were awarded which included the sum of £25,000 for pain, suffering and loss of amenity.

Employment

Stockton on Tees Borough Council v R Aylott EAT 11/3/2009

E was disabled with bipolar affective disorder. The Council had moved him to another department after difficulties with colleagues, where he was given strict deadlines and told that his performance was being closely monitored.  He went on sick leave with stress. On return to work he argued with his line manager and was suspended. He went into hospital, remained off work sick and five months later was dismissed. E lodged an appeal.  The tribunal found the dismissal was on the grounds of his disability and disability-related and both substantively and procedurally unfair. The local authority appealed to the EAT and argued that the tribunal had made findings of breaches of the Disability Discrimination Act 1995 which had not been pleaded and which it had no jurisdiction to consider, and that it had erred when considering the appropriate hypothetical comparator and in finding that the non-completion of the statutory dismissal procedure was mainly attributable to its failure to invite him to a meeting.  The EAT rejected the appeal. (1) The tribunal appeared not to have distinguished between the complaints which were to be treated as causes of action for dismissal and those for which a different approach was needed (2) The tribunal had failed to select a hypothetical comparator who, in addition to a similar sickness record, had other characteristics relevant to the acts of which complaint was made (having been moved to a different post and having caused concern by his behaviour and performance) (3) Malcolm v Lewisham LBC had overruled Novacold and the tribunal had erred in applying Novacold, (4) However, the Council had failed to invite E to attend a meeting, which supported the tribunal's conclusion that the failure to complete the statutory dismissal procedure was mainly attributable to the Council.

Housing

Margaret Doran v Liverpool City Council & Secretary of State for Communities & Local Government  

The Appellant was an Irish traveller who appealed against the decision ordering her to deliver vacant possession of a pitch at traveller site to the local authority.  The Appellant had a licence for the pitch but had difficulties with other residents, culminating in her being given notice to quit and the Local Authority issued possession proceedings, relying on the notice to quit and the alleged breaches which were denied by the Appellant.  At the trial, the appellant advanced a public law defence but the judge granted summary judgment. 

In granting summary judgment, the judge did not consider if, on the evidence before him, there was an arguable foundation for finding that as a matter of public law, the decision to issue a notice to quit and seek possession were unlawful.  The possession order was stayed pending an appeal, which he gave leave for.

The Court of Appeal held that if a licensee (such as the Appellant) wanted to advance public law grounds for not making a possession order, they ha to show a seriously arguable cases that the decision by the Local Authority was a decision which no reasonable person would consider justifiable; Kay v Lambeth LBC (2006) UKHL 10 followed.  There were no restrictions on the factors which a licensee may seek to rely upon; Doherty v Birmingham City Council (2008) UKHL 57 followed.  On the facts, the contention that no reasonable authority would have served a notice to quit was hopelessly unarguable. 

R (on the application of Ahmad) v Newham LBC

The Council appealed to the House of Lords against a decision that its housing allocation scheme was unlawful. The scheme involved two different methods of offering properties, the direct offer (DO) arrangement and the choice-based letting (CBL) arrangement.  DO applicants took priority over CBL applicants. There were five categories. The first two, "additional preference" and "multiple needs", were intended to include applicants who would be priority homeseekers under the CBL but who had especially pressing needs for rehousing. CBL applicants were placed in one of three categories.  About 95% were "priority homeseekers" (households containing someone who satisfied a "reasonable preference" criteria in section 167(2) of the Housing Act 1996) and they were ranked by reference to the date on which they were registered. The second category was tenants seeking a transfer, and under the CBL no more than 5% of lettings could be made to them. The issues were (1)  whether the Court of Appeal had been correct to hold, in finding the scheme to be unlawful, that section167 required a local housing authority to accord priority as between "reasonable preference" applicants by reference to the relative gravity of their needs (2) whether the scheme was unlawful because the CBL involved allocating a significant (if small) proportion of housing to a class of applicants who did not satisfy any of the requirements in paragraphs (a) to (e) of section167(2), namely tenants seeking a transfer.  The House of Lords allowed the appeal, and held (1) that section 167 did not require a local housing authority to accord priority as between "reasonable preference" applicants by reference to the relative gravity of their needs, and the policy was not irrational; (2) section 167(2) only required that those groups be given a "reasonable preference"; it did not require that they should be given absolute priority over everyone else, or over an individual household which wished to transfer.

BracknellForestBorough Council v Harry Melvin Green & Denise Ann Green

G had originally moved in to the three-bed LA property with his wife and children but G’s circumstances had changed over the 50 years he had occupied the property which he now lived in with his sister.  The LA served a notice on G seeking possession under s.82 Housing Act 1985 relying on Sch.2 ground.16.  The recorder held that it was not reasonable to make an order for possession even though the accommodation was more extensive than was reasonably required. He said it was also immaterial whether suitable alternative accommodation was available. The LA appealed the decision, submitting that the recorder had wrongly restricted his consideration of the relevant circumstances by failing to take into account the availability of suitable accommodation when determining the reasonableness of making a possession order.   The Court of Appeal dismissed the appeal on the following grounds:- (1) The court was limited to a review of the decision of the lower court. In considering the reasonableness of making possession orders the lower court had to apply an imprecise legal standard to the overall evaluation of all the circumstances relevant to that issue.  The CA therefore had to be very cautious in differing from the judge's evaluation of the facts.  (2) It was clear from the judgment that the recorder had considered the availability of suitable accommodation before deciding to refuse the application for a possession order. The terms of the Act expressly contemplated cases in which a tenant's personal circumstances might outweigh the pressures on public housing and other factors. The recorder was therefore entitled to conclude that the combination of factors relied on by the LA was outweighed by the length of G's occupation, his personal and family circumstances, his age and the effect of a possession order on him.

Local taxation

R (on the application of Osinake Ayo Mohammed) v Southwark London Borough Council

Mohammed applied for judicial review of a liability order made against him for outstanding council tax payments. The order had been made in respect of part of one financial year and the entirety of the next year and covered sums due for a period that had already been the subject of a previous liability order. When the order was made, Mohammed was an undischarged bankrupt but the Council had not sought leave of the court before it commenced proceedings, although it sought to give undertakings not to enforce the post-bankruptcy debt.  The Court held as follows. (1) The Council was not entitled to seek the liability order and was therefore responsible for the magistrates' court making an unlawful order. That was sufficient to found a claim against it for judicial review. (2) At the date of the bankruptcy, Mohammed was under a legal obligation to pay council tax for that financial year in respect of his future occupancy of the premises for the period prior to his bankruptcy but not for the period following his bankruptcy. However he had not accrued liability to pay council tax for the following year (3) The preferable course was for the liability order to be quashed instead of accepting the undertakings belatedly offered by the local authority. The liability order was defective because it was for too great an amount; was obtained by taking proceedings without the permission of the court, part of the total sum claimed was a bankruptcy debt and unenforceable outside the bankruptcy, and it was duplicative because the local authority had already obtained a liability order in respect of that debt.

Planning

R (on the application of Fladgate LLP) v Westminster City Council

Fladgate sought judicial review of the City Council’s decisions to grant planning permissions on two sites to demolish existing buildings and replace them with a single building.  UDP policies required, in descending order, an on-site increase in residential floor space, residential provision elsewhere, alternative uses on-site or a financial contribution to the Council’s affordable housing fund, and that residential development should include affordable housing on-site unless it could not be designed for transfer to a registered social landlord.  Fladgate submitted that the Council had failed to comply with the policies, had not considered them properly and that it beggared belief that there could have been no way of providing residential accommodation. They also argued that the local authority had not given proper reasons for its decisions.  The Court held that, on the evidence, the Council had considered the policy issues.  Although reasons had not been given for the second site, and should be given retrospectively, it was clear that the decision was the same as for the first.

R (on the application of Clear Channel UK Ltd) v Hammersmith & Fulham London Borough Council

Clear Channel applied for judicial review of the Council’s decision to serve a notice under the London Local Authorities Act 1995 requiring the removal of an advertisement hoarding.  The Council believed that it was wider, deeper and higher than the previous hoarding and internally lit, and that it therefore amounted to a material change affecting the amenity of the local area and did not benefit from the deemed consent previously held.  Clear Channel argued that (1) the changes did not amount to a material change (2) the local authority had acted irrationally in issuing the notice and by not exercising its discretion so as to require them to change the hoarding back to its previous structure, thereby reviving the deemed consent by restoration of the status quo. The Court held as follows. (1) There was a material change because of the size, bulk, and positioning of the structure and the nature of the illuminated area, plus this was a sequential display requiring consent under the Town and Country Planning (Control of Advertisements) (England) Regulations 2007.  (2) Although under the 1992 Regulations it had been possible to revive deemed consent by causing the structure of the advertising hoarding to be restored or reverted to its previous form, the 2007 Regulations did not have this effect.  The Council could offer restoration so as to grant express consent, but its decision not to do so was not irrational.

R (on the application of Simon Brockbank Morland) v (1) Secretary of State for Communities & Local Government (2) North Cornwall District Council

The Council had granted planning permission for the erection of bungalows in a holiday village near an area of outstanding natural beauty, subject to a condition that the bungalows only be used for holiday purposes and not for residential occupation.  Years later, Morland applied for the removal of the condition, with retrospective effect.  He argued that the condition was unenforceable under the four year rule and should therefore be removed in line with Circular advice.  On appeal, the Inspector concluded that the applicability of the planning conditions was outside the remit of the appeal, and dismissed the application on its merits. Morland, appearing in person, contended that the inspector was bound to take those matters into consideration. The Secretary of State argued that M's legal argument was only of relevance in an application for a declaration of lawful user.  The Court held that asking a planning authority to grant retrospective planning permission without imposing a particular condition implied that, unless permission were granted, the condition would be operative.  An unenforceable condition was not a nullity. In essence, the fact that someone had flouted planning control in the past was no good reason for the planning authority to remove a condition that was otherwise justifiable.

R (on the application of Langley Park School for Girls Governing Body v Bromley London Borough Council & Langley Park School for Boys

The boys’ school wished to rebuild.  A feasibility study identified three options and recommended the third. The school accepted the recommendation as it would cause the least disruption, It submitted an application for planning permission which included a supporting document setting out the three options. Despite written objections from the girls’ school, planning permission was granted. The girls’ school applied for judicial review of the decision, submitting that the first option had not been considered and that the Council and had failed to take account of a material planning consideration.  The Court held that the first option had been rejected by the school, and that the Council’s conclusion that it could be treated as irrelevant, was unobjectionable in planning terms.  The issue of whether or not an alternative site or scheme was a material planning consideration was fact-dependent. This was a matter of planning judgment and the courts would be slow to interfere. The option was no more than a concept, it had not been demonstrated that it was better in planning terms that the application which was considered, and the Council was able to place considerable weight upon the need to act urgently for both educational and financial reasons and to minimise disruption to the school.

Secretary of State for Communities & Local Government v (1) Bovale Ltd (2) Herefordshire District Council

A developer had applied to quash an inspector’s decision. The local authority put in a document setting out its grounds of resistance. B then applied for an order for SoS to file and serve summary grounds of defence. The deputy master made an order for the secretary of state to file and serve any alternative or additional grounds for resistance to those lodged by the local authority. The secretary of state appealed against that order. The judge indicated that a defendant in a s.288 case, who would invariably include the SoS, ought to serve both evidence and grounds of resistance within a period of 10 weeks from service of the claim. He also stated that where defendants did not do as suggested there would be costs consequences and that the sequential exchange of skeleton arguments should be reversed with the defendant being required to serve his skeleton first.  The SoS appealed.  The Court held that the judge had not provided guidance on interpretation of the rules and Practice Directions, nor was he prescribing procedure in a "gap" case. Rather, he was purporting to change the rules under Pt 8 and the CPR PD 8, and that was something which he was not entitled to do. Nor was he free to seek to enforce his rule change by ordering a reversal of the sequence of skeleton arguments and costs consequences if defendants did not voluntarily do that. 

Lushey Stanley v Secretary of State for Communities & Local Government & Rother District Council

An Inspector had refused temporary planning permission for the change of use of land from agricultural to allowing the residential stationing of a mobile home for the family of Stanley, a gypsy. The land was in an AONB and subject to restrictive national and local policies for new residential development.  During the appeal, both parties had considered that a three year planning permission would be reasonable, but the inspector concluded that the area could only be adequately safeguarded by refusing permission. Stanley applied for judicial review and submitted that the decision should be quashed because (1) the inspector should have considered when new Gypsy sites were likely to become available and considered granting temporary planning permission for that period (2) the inspector failed to take account of the risk that his family might have to resort to a roadside existence, that his chances of finding more suitable sites would be affected by the lack of local site allocation development plans, and that the education of his children would suffer, and (3) the inspector failed to give a proper, intelligent and adequate explanation.  The Court rejected the application. (1) The reasoning of the inspector clearly showed that it was not possible to anticipate when other Gypsy sites would become available. Therefore, the obligation to consider granting a temporary permission under Circular 01/2006 was not triggered. In any event, under para.45 the inspector was not obliged to grant temporary permission but merely to consider granting it. (2) The inspector had taken into account all the relevant considerations and had given carefully reasoned conclusions.  He was conscious of the impact of his decision including considering human rights issues. (3) The inspector gave perfectly adequate reasons.

Nero Holdings Ltd v Secretary of State for Communities & Local Government

The Council served an enforcement notice requiring Nero to cease using premises in Epping town centre as a Café Nero, for mixed Class A1 and Class A3 non-retail use and to return the premises to Class A1 usage.  The local development plan provided for a 30% maximum non-retail use in key frontages and stated that new non-retail uses would not be authorised where more than two adjacent non-retail uses would result. On appeal, the inspector found that the mixed use breached both limbs by raising the percentage to 31.3% per cent and resulting in three adjoining non-retail units, as Nero's premises was already adjoined by two non-retail premises. She also expressed the view that authorisation of the mixed use would, in all probability, ensure its continued operation as a predominantly non-retail use by future occupiers. Nero appealed, contending that (1) the inspector failed to have proper regard to, or give proper reasons for rejecting, its fallback position - that it should continue to use the premises as a primary Class A1 premises with ancillary Class A3 (2) the inspector failed to have due regard to prior planning inspectors' decisions in similar successful planning appeals (3) there was no evidence to justify her reliance on precedent.  The Court rejected the appeal.  (1) It was clear from the inspector's decision that she had properly considered N's fallback position and had given adequate reasons for rejecting it. (2) The other planning appeal decisions were capable of being material considerations, but, as they related to towns where the maximum tipping point for non-retail use had not been reached, they were clearly distinguishable (3) The inspector had only to have had some material on which to base her conclusions, and there was a sufficient evidential basis for her to be concerned about precedent.

Capel Parish Council v Surrey County Council

The parish council applied to quash Surrey’s decision to include in the Surrey Waste Plan Development Plan Documents a brickwork site based in its area. It was proposed that an incinerator would be built on the brickwork site. On examination, planning inspectors applied the guidance in PPS 12 and their overall view was that the numbered tests set out in PPS 12 had all been met subject to a number of modifications of a minor nature.  The Court quashed the decision.  PPS 12 had been amended as, in stating there was a presumption that the development plan document was sound unless it was shown to be otherwise, it contained a materially inaccurate statement amounting to an error of law. The inspectors applied the guidance as it existed at the time and their recommendation could not stand.

R (on the application of Helford Village Development Co Ltd) v Kerrier District Council

The Council granted planning permission for a jetty and access road to the jetty, for fishermen and ferry passengers, along coastal foreshore which been designated as a Special Area of Conservation and a SSSI.  An EIA recommended releasing an existing access from regular traffic disturbance, and conditions were attached for this purpose.  HVDC sought judicial review, claiming the conditions would not have the desired effect and failure to have regard to Circular 11/95 policy that planning conditions should not be imposed if they could not be enforced.  On the facts, the Court agreed with the first point but not the second.

Samuel Smith Old Brewery (Tadcaster) v Secretary of State for the Communities & Local Government & Ors

A mining company applied for planning permission to refurbish a defunct mining site. The SOS agreed with the inspector’s recommendation and held that, although the proposal would conflict with the development plan and with government policy relating to the location of employment, there were significant benefits in bringing the site back into use, which outweighed the conflict, and that the risk of harm caused by leaving unoccupied buildings in the open countryside would be sufficiently mitigated by a condition requiring their removal if they were not brought into use within five years. SSOB sought to quash the decision, and submitted that (1) the inspector and the SoS had failed to have regard to the issue of viability, and had not properly considered the fact that the refurbishment of the buildings would not be economically viable (2) the decision was based on speculation as opposed to a real possibility that an appropriate occupier, willing to take and use the buildings as well as the railway sidings, would be found within the specified period.  The Court of Appeal held that the decision was lawful.  (1) Viability was part of the overall case and had to be considered alongside "need" and "demand". The inspector had considered the various refurbishment appraisals and had properly considered that the economic viability of converting and refurbishing the buildings would depend on a particular prospective user. (2) In order that a prospect be "real" and not "merely theoretical", it did not have to be probable or likely: a possibility would suffice and would depend on a fact-specific assessment of each individual case.  It was not possible to interfere with the SoS broad discretion in a planning context where all material considerations had been taken into account.

Secretary of State for Communities & Local Government & Peak District National Park Authority v Bleaklow Industries Ltd & MMC Midlands Ltd

The SoS and the National Park Authority appealed against a decision not to uphold an enforcement notice relating to land in the Peak District National Park. Planning permission had been granted in 1952 for the extraction of specified minerals "and any other minerals which are won in the course of working those minerals”. The NPA had issued the enforcement notice alleging a breach of planning control by the "winning and working of limestone" outside the planning permission and the SoS had upheld the notice. The case depended on the correct interpretation of the 1952 permission, and whether the operations came within the meaning of the development permitted by it.  The Court of Appeal held (1) "Winning" and "working" were to take the meanings given in the English Clays case, so that "winning" meant the process of accessing the desired mineral, and "working" meant the process of removing it from its position in the land.  Any other minerals which had to be removed were not being "worked" in the sense used in planning law, and the fact that they might have a commercial value did not take it outside the scope of the condition relating to waste in the planning permission. The enforcement notice had to be upheld. (2) The imposition of a ratio of 2:1 limestone to mineral had been a crude device by the inspector to tell whether more limestone had been won and worked for sale than the planning permission allowed. It did not represent a constraint on the amount of limestone that could be removed during the course of winning the specified minerals and the fact that Bleaklow & MMC had not been given an opportunity to address the ratio did not amount to procedural unfairness.

R (on the application of Loader) v Poole Borough Council (2009)

A local resident applied for judicial review of a decision to grant planning permission for the development of a site. He contended that (1) the Council had failed to give a summary of its reasons in its decision to grant planning permission as required by the Town and Country Planning (General Development Procedure) Order 1995 (2) the local authority's decision was inconsistent with previous refusals (3) in light of the planning history of the site he had a legitimate expectation that planning permission would be refused (4) the grant of planning permission was irrational.  The Court rejected the application.  (1) The Council had failed, contrary to the Order, to positively identify and summarise its reasons for its decision to grant planning permission. However, the failure was of limited scope and significance as it had not caused the resident to have any real doubts as to the reasons.  The decision notice had adequately identified why objections had been sufficiently accommodated. (2) The Council was aware of the planning history and its assessment was a judgment on planning matters that was within its discretion and it could not be said that its decision was irrational (3) It could not be said that the resident had a legitimate expectation that planning permission would be refused as the previous refused schemes for development on the site were materially different (4) It could not be said that the local authority's decision to grant planning permission was irrational.

Carol Barbone & Brian Ross v Secretary of State for Transport , Secretary of Statefor Communities & Local Government, BAA Ltd, Stansted Airport Ltd & Uttlesford District Council & Ors

The local authority had  granted planning permission for the extension of the passenger terminal at Stansted airport, plus extensions and improvements to the airport facilities, subject to conditions that limited air passenger throughput to 25 million passengers per annum and number of air traffic movements to 241,000. The airport operator proposed to vary those conditions, but the Council refused. On appeal, the SoSs, accepting the recommendation of a planning inspector, granted planning permission that had the effect of lifting the permitted annual throughput of passengers at the airport to 35 million per annum and increasing the number of air traffic movements to a figure not exceeding 264,000. The applicants (C) applied to quash the decision.  They argues that the SoSs had (1) misapplied their own policy and did not take into account all the environmental and economic impact of the project; (2) acted in breach of legitimate expectation that they would take into account all the environmental impacts and economic effects (3) failed to take into account material considerations, namely the balance of trade deficit, the noise impacts and the greenhouse gas emissions (4) acted in breach of the Town and Country Planning (Environmental Impact Assessment) (England and Wales) Regulations 1999 by failing to take into account all of the environmental information before them prior to granting planning permission (5) given inadequate and insufficient reasons.  The Court disagreed.

East Dorset District Council v  Secretary of State for Communities & Local Government & Stephen Elford

Elford owned a dwelling in the green belt. The 137sqm property had replaced one of 80sqm that existed when the green belt was designated. A 30sqm conservatory was built onto it. The Council refused retrospective planning permission, on the basis that it represented a disproportionate increase in the size of the dwelling that materially changed its impact on the openness of the green belt, and that there were no special circumstances that outweighed green belt policies.  The planning inspector found that the conservatory, due to its limited size and height, did not have any material impact on the openness of the green belt, did not constitute a disproportionate increase in the size of the property and was not contrary to the local authority's local plan or PPG 2. He found that part of the local plan was guidance only.  The Council contended that the inspector failed to interpret correctly and apply the local plan and had failed properly to apply PPG 2. The Court held that the inspector correctly considered and applied the local plan and PPG2, and that he was entitled to reach the decision that he did.

Elizabeth Pascoe v Secretary of State for Communities & Local Government , Homes & Communities Agency & Liverpool City Council

Pascoe applied for a CPO made by the HCA’s predecessor and confirmed by the SoS to be quashed. The order had been made to implement a regeneration scheme and required the demolition of a number of properties. An inspector recommended that the SoS confirm the order. Pascoe’s campaign group had proposed an alternative development scheme, which would require the demolition of fewer buildings. The planning inspector found that this scheme would not be deliverable and had a number of problems.. After the planning inquiry, but before the SoS reached her decision to confirm the order, CABE responded to a consultation on reserved matters under a related outline planning permission. The commission expressed reservations about the proposed development, in particular the loss to the built environment from the demolition of buildings, was unable to support the scheme and suggested the consideration of an alternative. The Court held that (1) the SoS had adequately considered the representations made by CABE and was not required to give a response to those representations or to articulate her reasons for rejecting them (2) the inspector had been entitled to conclude that the alternative development scheme proposed at the planning inquiry was undeliverable.

Trading Standards

EssexTrading Standards v Wallati Singh

The Council appealed by way of case stated against a decision of a magistrates' court to acquit Singh of offences of trade mark infringement. He had been charged with having in his custody or control in the course of business sports shoes, that bore a logo that was likely to be mistaken for a registered trade mark contrary to the Trade Marks Act 1994.  It was a defence for Singh to show that he had an honest and reasonable belief that the use of the sign, in the manner in which it was used, was not an infringement of a registered trade mark. The magistrates' court found that a third party, who had a serious drug problem and was unwell, had asked Singh to help him at a market stall, that Singh had asked him if the goods being sold were counterfeited and that he had been told that there was nothing wrong with the sports shoes. The questions for the High Court were (1) whether the magistrates' court was wrong in law to apply the principles set out in the case of R v Johnstone (Robert Alexander) namely that "those who act honestly and reasonably are not to be visited with criminal sanctions", when Singh argued that he did not know that the goods were counterfeited (2) whether it was entitled to give weight to the fact that Singh was of good character and (3) whether the evidence no reasonable magistrates' court could have come to this decision.  The Court held as follows. (1) On the facts, Singh had reason to be suspicious and had relied purely on the word of an unwell drug addict.  He had not established that he acted both "honestly" and "reasonably".  (2)  Good character was relevant to "honestly" but not to "reasonably".  (3) No reasonable court could have concluded that the defence was made out.

VAT

Revenue & Customs Commissioners v Isle of Wight Council

Customs appealed against a decision of the VAT and duties tribunal that the Council was a non-taxable person for the purpose of assessing VAT on revenue from off-road parking. The Council's case that it was not a taxable person for VAT purposes under Directive 77/388 art.4(5) in respect of supplies made in its capacity as a public body. Customs' case was that there would be a significant distortion of competition under art.4.5.2. In the light of an ECJ ruling it was clear that the appeal would be determined in Customs' favour and that the orders of the tribunal had to be set aside. The only issue that remained was whether the court should answer the substantive issue or remit the case for a rehearing. The Court held that the issue required a factual investigation, which was outside the remit of the instant court. The appeal was allowed and the matter returned to the tribunal for reconsideration.

Legislation

Adults

The Health And Social Care (Financial Assistance) Regulations 2009  SI 2009/649

These regulations establish conditions that a qualifying body must meet in order for the Secretary of State to provide it with financial assistance under the Health and Social Care Act 2008. These regulations will ensure that financial assistance is only given to those social enterprises with primarily social objectives, and who reinvest their surpluses or profits into the community, or into a service with social benefits.

The Local Authority Social Services and National Health Service Complaints (England) Regulation 2009 SI 2009/309

These Regulations make provision for complaints made on or after 1st April 2009 in relation to local authority social services and the National Health Service.

• Regulation 3 requires "responsible bodies" to make arrangements for the handling and consideration of complaints.  "Responsible bodies" are defined (in regulation 2) to mean local authorities, NHS bodies and certain other providers who provide services under arrangements with NHS bodies.
• Regulation 4 requires responsible bodies to designate a person to be responsible for ensuring compliance with the arrangements, and a complaints manager to be responsible for managing the complaints procedure.
• Regulation 5 makes provision as to who may make a complaint.  Regulations 6 and 7 specify the complaints which are to be handled by responsible bodies in accordance with the Regulations.  Regulation 8 specifies certain types of complaint that are not required to be dealt with in accordance with these Regulations.
• Regulation 9 provides for responsible bodies to co-operate in relation to complaints being considered by one body which also fall to be handled by another body.  Regulations 10 and 11 make provision for disclosure and co-operation by local authorities considering a complaint.
• Regulation 10 applies where a complaint wholly or in part relates to services in relation to which a person is registered under the Care Standards Act 2000.  Regulation 11 applies where a complaint wholly or in part relates to action taken by a person who carries on an activity connected with the provision of adult social care, and the activity is a regulated activity under Part 1 of the Health and Social Care Act 2008.  Regulation 11 is to come into force on 1st April 2010.
• Regulation 12 specifies the time limits for making a complaint.  Regulation 13 provides for how complaints are to be made and processed initially, including a discussion with the complainant as to how the complaint is to be handled and the likely period for investigating the complaint and responding to the complainant.  Regulation 14 provides for the investigation of the complaint and the response to the claimant.  Regulation 15 makes provision for electronic communications.
• Each responsible body is required to ensure that its complaints arrangements are made available to the public (regulation 16), to record certain matters about complaints for monitoring purposes (regulation 17) and to prepare and make available an annual report (regulation 18).
• Regulations 19 to 21 make transitional provision for complaints made before 1st April 2009 under the Local Authority Social Services Complaints (England) Regulations 2006, or the National Health Service (Complaints) Regulations 2004, which are revoked by regulation 22.  Regulation 23 and the Schedule make consequential and transitional amendments to regulations relating to complaints about services provided by certain providers of health care.

The National Assistance (Sums For Personal Requirements and Assessment Of Resources) Amendment (England) Regulations 2009  SI 2009/597

The instrument uprates certain disregards and allowances in the residential charging regulations. These regulations set out how each local authority should assess what a person can afford to pay for care in a care home which has been arranged by the local authority.

The Health And Social Care Act 2008 (Registration Of Regulated Activities)  Regulations 2009  SI 2009/660

These regulations prescribe the activities carried on by certain NHS bodies that are to be regulated activities for the purposes of the Health and Social Care Act 2008. The

Regulations require the Care Quality Commission to keep a register of service providers  carrying on a prescribed regulated activity, and those service providers are then subject to registration requirements with which they must comply. The Commission has certain enforcement powers and fixed penalties that can be imposed for certain offences and, in addition, a service provider will commit an offence (punishable, on summary conviction, with a fine not exceeding £50,000) if it fails to comply with the registration requirements.

The Court of Protection (Amendment) Rules 2009 SI 2009/582

These Rules amend the Court of Protection Rules by adding supporting rules for the new deprivation of liberty jurisdiction which is prospectively inserted into the Mental Capacity Act 2005 by section 50 of the Mental Health Act 2007 and comes into force on 1st April 2009. The amendments are as follows.

• In the definition of “P” in rule 6 (interpretation), reference is added to a relevant person as defined by paragraph 7 of Schedule A1 to the Act.
• In rule 51 (where the court’s permission is not required), new paragraph (2A) is added specifying the case where an application is made under section 21A of the Act by the relevant person’s representative.
• New Part 10A (Deprivation of Liberty matters) is inserted, consisting of new rule 82A which provides that procedure for applications relating to deprivation of liberty issues, and for connected and consequential proceedings, is set out in the practice direction to the Part.

 

Children and Young Persons

The Children and Young Persons Act 2008 (Commencement No 1) (England) Order 2009 SI 2009/323

This Order is the first Commencement Order made by the Secretary of State for Children, Schools and Families under the Children and Young Persons Act 2008 which only brings provisions of the Act into force in relation to England.

The Fostering Services (Amendment) Regulations 2009 SI 2009/394

The Fostering Services (Regulations 2009 make amendments to the Fostering Services Regulations 2002 consequential on the introduction of an independent review mechanism (“IRM”) for fostering. The IRM for fostering gives prospective and approved foster parents the option of applying to the Secretary of State for a review by an independent review panel of a qualifying determination made by a fostering service provider (i.e. a local authority or an independent fostering agency) in relation to the applicant’s suitability to act as a local authority foster parent.  They also amend the Fostering Services Regulations 2002 in relation to the constitution of fostering panels, the tenure of panel members and the power of fostering panels to seek information and assistance and legal or medical advice.

The Independent Review of Determinations (Adoption and Fostering) Regulations 2009 SI 2009/395

These Regulations are made under the Children Act 1989 and the Adoption and Children Act 2002.  They apply in relation to England only. They make provision for the review of a qualifying determination by an independent panel appointed by the Secretary of State. The types of qualifying determination are:

a)       a determination made by an adoption agency under the Adoption Agencies Regulations 2005 that it proposes not to approve a prospective adopter as suitable to adopt a child.

b)      a determination made by an adoption agency under the Disclosure of Adoption Information (Post-Commencement Adoptions) Regulations 2005.

c)       a determination made by a fostering service provider in accordance with the Fostering Services Regulations 2002 that it proposes not to approve a person as suitable to act as a foster parent, or that it proposes to terminate, or to revise the terms of approval of, a person as suitable to act as a foster parent.

Part 2 makes provision for the constitution and membership of panels, their functions, the payment of fees to panel members, meetings, and record keeping of the panels.  Part 3 makes provision for the procedure to be followed when a review of a qualifying determination by a panel constituted under Part 2 is sought. Regulation 21 provides that the organisation must pay costs in connection with the review. Part 4 revokes the Independent Review of Determinations (Adoption) Regulations 2005 and makes transitional provision.

The Family Procedure (Adoption) (Amendment) Rules 2009 SI 2009/638

This rule makes a minor amendment to the Family Procedure (Adoption) Rules 2005 to produce the effect that, in proceedings in a family proceedings court (magistrates’ court) to which the rule applies, the court may proceed in the absence of an applicant or any respondent who fails to attend the hearing.  This is already the case in relation to such proceedings in the High Court.

The Family Proceedings (Amendment) Rules 2009  SI 2009/636

The Family Proceedings Courts (Children Act 1989) (Amendment) Rules 2009 SI 2009/637

These instruments make changes to rules of court which are needed as a

consequence of the commencement of provisions of: the Childcare Act 2006; the Children and Young Persons Act 2008; and the Human Fertilisation and Embryology Act 2008, and Decisions to rationalise provisions relating to appeals in family proceedings and to re-route certain appeals.

In relation to the Childcare Act 2006

The changes in these instruments are to enable the Chief Inspector to apply without notice for a warrant to enter premises if he believes that a person is providing childcare there without being registered, or to conduct certain inspections, or to determine whether conditions or requirements imposed on the provider are being complied with.

In relation to the Children and Young Persons Act 2008

Currently parents whose child has been removed because the court made an Emergency Protection Order can only challenge the decision at court after 72 hours have passed. This 72-hour restriction is removed by the Children and Young Persons Act 2008 so that a challenge can be made earlier, and these instruments amend the relevant court forms annexed to the rules to remove references to the 72-hour restriction.

In relation to the Human Fertilisation and Embryology Act 2008

The Family Proceedings (Amendment) Rules 2009 amend the Family Proceedings Rules 1991 to take into account the fact that under Part 2 of the Human Fertilisation and Embryology Act 2008 (the 2008 Act) concerning parenthood in cases involving assisted reproduction a civil partner of a woman or a woman treated with another woman may become in law the second parent of a child under the provisions of the 2008 Act and may apply for a declaration of parentage.

In relation to appeals

The Family Proceedings (Amendment) Rules 2009 amend the Family Proceedings Rules 1991 to rationalise and modernise the existing rules relating to appeals in family proceedings by providing for appeals to be brought by a common form of notice of appeal and to bring provisions relating to appeals into one Part of the rules. The amended rules will also be able to accommodate the proposed re-routing of appeals from decisions of a magistrates’ court in family proceedings from the High Court to a county court in accordance with the Access to Justice Act 1999 (Destination of Appeals) (Family Proceedings) Order 2009 (“the draft Order”) which has been laid in draft before Parliament and which includes provision for an appeal to be brought on the ground that a decision is wrong in law or in excess of jurisdiction, replacing the existing “case stated” procedure.

Education

The Education and Skills Act 2008 (Commencement No. 2 and Savings) Order 2009 SI 2009/387

This is the second commencement order made under the Education and Skills Act 2008.  The provisions commenced:

• Make it clear that the Learning and Skills Council for England (“LSC”) is under duties in respect of training provided in connection with contracts of employment and contracts of apprenticeship, and require the LSC to encourage employers to participate in the provision of such training
• Extend the local collaborative arrangements made under section 10 of the Children Act 2004 (co-operation to improve well-being) to cover arrangements to promote co-operation between the children’s services authority and its partners and persons who are responsible for providing 14-19 education and training
• Alter the requirements about the approval of external qualifications
• Amend the functions of the Qualifications and Curriculum Authority
• Provide that travelling time is one of the factors a local education authority must consider when deciding on the arrangements it will be making in relation to school transport for persons of sixth form age and require local education authorities to consider the wish of a person of sixth form age to receive education or training at a particular institution where that wish is based on the person’s religion or belief, but do not affect any transport policy statement for 2008-2009 or the exercise of travel functions by local education authorities in relation to 2008-2009.

The Education (School Performance Information) (England)(Amendment) Regulations 2009   SI 2009/646

These Regulations amend the Education (School Performance Information) (England)

Regulations 2007 (“the principal regulations”). They remove the requirement for schools to provide the Secretary of State with the results of teacher assessment in non-core subjects at Key Stage 3. They also remove the requirement for schools to provide results of National Curriculum tests at Key Stage 3 (since these tests have been abolished).

Elections

The Representation of the People (Amendment) Regulations 2009 SI 2009/725

These Regulations amend provisions relating to the registration of overseas peers for European Parliamentary elections in order to reflect recent changes to electoral law. They also make minor changes in respect of applications for anonymous entries in the electoral register, and make provision for a copy of the full electoral register to be supplied to the Statistics Board.

Employment

The Employment Code of Practice (Disciplinary and Grievance Procedures) Order 2009 SI 2009/771

This Order appoints 6th April 2009 as the day upon which the Code of Practice on Disciplinary and Grievance Procedures which is being issued by ACAS under section 199 of the Trade Union and Labour Relations (Consolidation) Act 1992 will come into effect. Article 3 provides that the ACAS Code does not apply in circumstances where the statutory disciplinary and grievance procedures apply. The repeal of the statutory disciplinary and grievance procedures is subject to the transitional arrangements in the Employment Act 2008 (Commencement No. 1 Transitional Provisions and Savings) Order 2008.

Enforcement

The Regulatory Enforcement and Sanctions Act 2008 (Commencement No 2) Order 2009 SI 2009/550

This Order brings into force on 6th April 2009 those provisions of the Regulatory Enforcement and Sanctions Act 2008 which are not already in force.

The Co-ordination of Regulatory Enforcement (Enforcement Action) Order 2009 SI 2009/665

The Co-Ordination of Regulatory Enforcement (Procedure for References To LBRO) Order 2009 SI 2009/670

These instruments relate to Part 2 of, and Schedule 4 to, the Regulatory Enforcement and Sanctions Act 2008 (the Act). The Act contains a number of order-making powers which allow the Secretary of State to make statutory instruments regarding the operation of the Primary Authority scheme.  The Co-ordination of Regulatory Enforcement (Enforcement Action) Order 2009 specifies what is to be regarded as enforcement action for the purposes of the Scheme. This is important, as it is the taking of an “enforcement action” which triggers the requirement to consult the Primary Authority before taking that enforcement action forward. The Order also sets out “exclusions” from the requirement to consult. The Co-ordination of Regulatory Enforcement (Procedure for References to LBRO) Order 2009 makes provision for the procedure to be followed by the parties to a reference to LBRO for a determination under Schedule 4 to the Act as to whether or not a proposed enforcement action should be taken.

Health and Safety at Work

The Health and Safety at Work etc Act 1974 (Application to Environmentally Hazardous Substances) (Amendment) Regulations 2009/318

The Health and Safety at Work etc. Act 1974 (Application to Environmentally Hazardous Substances) Regulations 2002 extend the reference to dangerous substances in section 1(1)(c) of the Health and Safety at Work etc. Act 1974 to include environmentally hazardous substances for the purpose of enabling Regulations to be made under section 15 of the 1974 Act to implement the Directives referred to in regulation 2 of the 2002 Regulations.  These Regulations amend regulation 2 of the 2002 Regulations to add a reference to Directive 2008/68/EC of the European Parliament and of the Council on the inland transport of dangerous goods so that regulations can be made under section 15 of the 1974 Act to implement that Directive.

Housing

The Allocation of Housing and Homelessness (Eligibility) (England) (Amendment) Regulations 2009 SI 2009/358

The Allocation of Housing and Homelessness (Eligibility) (Wales) Regulations 2009
SI 2009/393 (W.42)

These amend The Allocation of Housing and Homelessness (Eligibility) (England) Regulations 2006 and the Allocation of Housing (Wales) Regulations 2003, in respect of British people arriving in Great Britain from Zimbabwe, having accepted an offer by the Government to assist them to settle in the United Kingdom. For these individuals, they waive the usual requirement that British people arriving or returning from being resident abroad must be ‘habitually resident’ in the United Kingdom, Channel Islands, Isle of Man or Republic of Ireland in order to be eligible for an allocation of local authority housing or homelessness assistance.

The Housing (Service Charge Loans) (Amendment) (England)
Regulations 2009/602
and
The Housing (Purchase Of Equitable Interests) (England)
Regulations 2009/601

Both instruments concern assistance to leaseholders of social landlords (principally local authorities and housing associations) for the purpose of enabling such leaseholders to pay leasehold service charges owed to their landlords. All properties to which both sets of Regulations will apply will be flats.

Regulations No.602 amend the earlier “1992 Regulations” which make provision for loans under sections 450A and 450B of the Housing Act 1985 to enable a landlord who makes such a loan under the discretionary power deriving from section 450B to do so on terms other than payment of interest.

Regulations No.601 give social landlords the power to assist a leaseholder by buying an equitable interest (ie, a share of the value) in the flat.

The Housing and Regeneration Act 2008 (Commencement No. 1 and Saving Provisions) Order 2009 SI 2009/415

This Order brings into force, on 2nd March 2009, section 314 of, and Schedule 15 to, the Housing and Regeneration Act 2008. The provisions commenced make changes to housing legislation in the United Kingdom in response to the decision of the Court of Appeal in the case of Morris v. Westminster City Council [2005] EWCA Civ 1184, which declared that the provisions of section 185(4) of the Housing Act 1996 were incompatible with the European Convention on Human Rights.  Article 2 commences the provisions in relation to England and Wales and provides that the amended provisions will apply only to applications for an allocation of social housing or housing assistance (homelessness) made on or after 2nd March 2009.  Article 3 commences the provisions in relation to Scotland and Northern Ireland and provides that the amended provisions will apply only to applications for accommodation made on or after 2nd March 2009.  Article 4 commences the amendments and repeals made consequential on the amendments in Parts 1 and 2 of Schedule 15 to the Act.

The Houses in Multiple Occupation (Management) (England) Regulations 2009 SI 2009/724

The Management of Houses in Multiple Occupation (England) Regulations 2006 and the Licensing and Management of Houses in Multiple Occupation (Additional Provisions) (England) Regulations 2007 require the manager of a house in multiple occupation (“HMO”) to supply to the local housing authority, on request, the latest gas appliance test certificate relevant to the testing by a “recognised engineer” of any gas appliance at the HMO. This instrument replaces the definition of “recognised engineer” in those Regulations.

Landlord and Tenant

The Approval of Code of Management Practice (Residential Management) (Service Charges) (England) Order 2009 SI 2009/512

By this Order the Secretary of State gives approval to a code of practice prepared by the Royal Institution of Chartered Surveyors (RICS) on the management of residential properties in respect of which the tenants pay service charges.  The code of practice sets out what is regarded as best practice for management in the private residential leasehold sector, as well as highlighting any legislative requirements that managers need to comply with. The Order withdraws approval for a previous code of practice.

Local government

The Local Authorities (Alteration of Requisite Calculations) (Wales) Regulations 2009 SI 2009/267

Sections 32 and 43 of the Local Government Finance Act 1992 set out respectively how a billing authority and a major precepting authority are to calculate their budget requirements for a financial year. Sections 33 and 44 of that Act set out respectively how a billing authority and a major precepting authority are to calculate the basic amount of their council tax.  These Regulations make amendments for the financial year beginning on 1 April 2009:

• They omit references to “relevant special grant” since no special grants are being defined as relevant special grants for this period.
• They insert the definitions of sums payable in respect of redistributed non-domestic rates and revenue support grant in sections 32 and 43 of the 1992 Act. The purpose is to ensure that the amounts of redistributed non-domestic rates and revenue support grant excluded from the budget requirement calculation in those sections relate only to such amounts payable under the respective Local Government Finance Reports for the financial year beginning on 1 April 2009. The same definitions also apply to sections 33 and 44 of the 1992 Act. Regulation 4(b) also defines “floor funding” in section 43 by inserting subsection (6F) for the financial year beginning on 1 April 2009.
• They further amend sections 43 and 44 of the 1992 Act, such that major precepting authorities in Wales must take into account any floor funding received from the Secretary of State for the financial year beginning on 1 April 2009 when making the required calculation for that year.

The Local Authorities (Capital Finance and Accounting) (England) (Amendment) Regulations 2009 SI 2009/321

These Regulations amend the Local Authorities (Capital Finance and Accounting) (England) Regulations 2003 and apply in relation to local authorities in England only. They alter the ordinary accounting treatment of certain potential financial losses suffered by local authorities by allowing an affected local authority to record an offsetting credit in its accounts of up to the value of the potential loss. The effect of this is that whilst the authority’s accounts continue to fully show the loss that has potentially been incurred, the effects on the authority’s budget calculations are mitigated. This is a temporary arrangement: the offsetting credit must be fully reversed in the financial year beginning on 1st April 2010 if it has not already been reversed by then.

Regulation 4 of these Regulations makes an unconnected amendment to reflect a change in the title of the document formerly known as “Governance and Accountability in Local Councils in England and Wales: A Practitioners’ Guide 2003 Edition” (as amended from time to time), which is referred to in regulation 31(c) of the 2003 Regulations.

The Exercise of Functions by Local Councillors (Written Records) Regulations 2009 SI 2009/352

Where councillors have had functions of the council delegated to them under section 236 of the Local Government and Public Involvement in Health Act 2007, this instrument requires a record to be made of any decision made or action taken in carrying out those functions and for the record to be provided to the council within one month of the decision or action.

The Local Government (Structural Changes) (Further Transitional Arrangements and Staffing) Regulations 2009 SI 2009/486  

These Regulations make incidental, consequential, transitional and supplementary provision of general application for the purposes of of, and in consequence of, structural changes orders made by the Secretary of State under section 7 of the 2007 Act .

• Part 2 of the Regulations makes provision in relation to the categorisation of single tier councils on and after the reorganisation date.
• Part 3 of the Regulations makes provision about councillors’ conduct.
• Part 4 of the Regulations makes provision in relation to the staff of port health authorities.

The National Park Authorities (Amendment) (England) Order 2009 SI 2009/557

The Northumberland (Structural Change) Order 2008 abolished the District Councils in Northumberland on 1st April 2009 and established Northumberland Council as the sole local authority for Northumberland.  The Order amends the National Park Authorities (England) Order 1996, so as to amend the membership of the Northumberland Park Authority from 1 April 2009.

The Local Authorities (Charges for Property Searches) (Wales) Regulations 2009 SI 2009/369 (W.38)

These Regulations allow local authorities to make charges for services provided in connection with property searches. They:

• Revoke in their application to Wales the Local Authorities (Charges for Land Searches) Regulations 1994 but make transitional provision.
• Provide that the charging arrangements set out in the Regulations apply whether a local authority provides the services under a power or duty. However, they do not apply where a local authority has another power to charge or is under a duty to do so. They also do not apply in respect of access to “free statutory information”.
• Deal in detail with the calculation of charges, which must not amount to more than the costs of granting access.
• Give a local authority power to make charges in respect of answering enquiries about property. These charges must have regard to the costs to the local authority in answering enquiries.
• Require local authorities to publish certain information each year in connection with the charges made under these Regulations.

The Local Authorities’ Plans and Strategies (Disapplication) (England) (Amendment) Order 2009 SI 2009/714

The Order amends the Local Authorities’ Plans and Strategies (Disapplication) (England) Order 2005 to alter exemptions for local authorities from requirements to produce certain statutory plans.   Councils were, prior to 2006, placed in one of five

categories - excellent, good, fair, weak or poor.  The 2005 Order disapplied seven statutory plans and strategies requirements for local authorities categorised as “excellent”.  Under CPA 2005, councils receive an overall performance category ranging from 0 to 4 stars, with 4 stars being the highest. The last categorisation order, the Local Authorities (Categorisation) (England) Order 2006 reflects that harder test for single tier and county councils.  This Order further amends the 2005 Order.  The requirements in respect of rights of way improvement plans and local transport plans are limited to 4 stars authorities. 4 stars and 3 stars authorities, as well as excellent authorities, will be exempt from the duties to publish new homelessness strategies and submit home energy conservation reports The exemption from the duty to prepare action plans in relation to air quality is extended to 4 stars as well as excellent authorities. The requirement to produce a bus strategy was ended with effect from 9th February 2009 by section 10 of the Local Transport Act. The Order does not make any change in respect of the exemption from producing youth justice plans.

The Contracting Out (Highway Functions) Order 2009 SI 2009/649

This Order will enable local authorities and the Secretary of State to operate the statutory highway functions listed in the Order on a contracted out basis.  These functions include highway maintenance and street works functions.  Street works are works carried out by, or on behalf of, undertakers operating under a statutory right e.g. gas, water, electricity and telecommunication companies or under a New Roads and Street Works Act 1991 section 50 licence, in or under a street maintained at the public expense.

Non-domestic Rating

The Non-Domestic Rating (Unoccupied Property) (Wales) (Amendment) Regulations 2009 SI 2009/255 (W.27)

The Non-Domestic Rating (Unoccupied Property) (England) Regulations 2009 SI 2009/353

The Non-Domestic Rating (Unoccupied Property) Regulations 2008 prescribe a class of unoccupied hereditaments on which rates are payable. The class consists of all unoccupied hereditaments to which none of the conditions in regulation 4 applies.  Regulation 4 excludes from liability all hereditaments shown in a non-domestic rating list with a rateable value less than a specified amount, currently £2,200. These Regulations increase that figure to £15,000 for the purpose of a hereditament shown in the list for the financial year beginning on 1 April 2009 only.

The Non-Domestic Rating (Small Business Rate Relief) (England) (Amendment) Order 2009 SI 2009/354

This Order removes the requirement that, to be eligible for small business rate relief, a ratepayer must occupy a hereditament with a rateable value of no more than £21,499 in Greater London, or £14,999 outside Greater London, on the first day of each financial year in which relief is sought. It does this by amending the Non-Domestic Rating (Small Business Rate Relief) (England) Order 2004, which prescribes the conditions for entitlement to small business rate relief.

The Council Tax and Non-Domestic Rating (Demand Notices) (England) (Amendment) Regulations SI 2009/353

These Regulations amend the Council Tax and Non-Domestic Rating (Demand Notices) (England) Regulations 2003 (“the 2003 Regulations”) in relation to non-domestic rating demand notices only.

The Non-Domestic Rating (Collection and Enforcement) (Local Lists) (Amendment) (Wales) Regulations 2009 SI 2009/461 (W.48)

These Regulations amend the Non-Domestic Rating (Collection and Enforcement) (Local Lists) Regulations 1989 to make special provision in relation to the collection of certain backdated liability to rates.

Planning

The Sites of Special Scientific Interest (Appeals) Regulations 2009 SI 2009/197

These regulations clarify the process for appealing against the refusal, modification or withdrawal of a consent, by Natural England, to carry out an operation likely to damage a site of special scientific interest (SSSI), or the conditions of any such consent; the issue of a management notice, by Natural England, to the owner or occupier of an SSSI; or the giving of a stop notice in relation to any such operation.

The Planning and Compulsory Purchase Act (Commencement No 11) Order 2009 SI 2009/384

Article 2 of this Order brings into force on 6th April 2009, in relation to England, section 43 of the Planning and Compulsory Purchase Act 2004, so far as it is not already in force. The provisions inserted by that section (into the Town and Country Planning Act 1990 and the Planning (Listed Buildings and Conservation Areas) Act 1990) relate to the power to decline to determine overlapping applications for planning permission, listed building and conservation area consents.

The Town and Country Planning (Determination of Appeals by Appointed Persons) (Prescribed Classes)(Amendment) (England) Regulations 2009 SI 2009/380

These Regulations amend the Town and Country Planning (Determination of Appeals by Appointed Persons) (Prescribed Classes) Regulations 1997, which prescribe the classes of appeal which are to be determined by persons appointed by the Secretary of State in accordance with the provisions of Schedule 6 to the Town and Country Planning Act 1990

The Planning Act 2008 (Commencement No. 1 and Savings) Order 2009 SI 2009/400

Brings into force various provisions of the Act.

The Town and Country Planning (Local Development) (England) (Amendment) Regulations 2009 SI 2009/401

These Regulations amend the Town and Country Planning (Local Development) (England) Regulations 2004 which make provision relating to the system of local development planning established by Part 2 of the Planning and Compulsory Purchase Act 2004 (“the 2004 Act”).

Most of the amendments in regulation 2 are in consequence of the amendments to the 2004 Act made by Section 180 of the Planning Act 2008. The Homes and Communities Agency is also added as a specific consultation body following that body’s establishment by the Housing and Regeneration Act 2008.

• Regulation 2(2) amends the definition of “specific consultation bodies” in regulation 2(1) of the 2004 Regulations to include the Homes and Communities Agency and to make explicit that the duty to consult the Secretary of State for Transport relates to the Secretary of State’s functions in relation to highways and railways.
• Regulation 2(3) amends regulation 6 of the 2004 Regulations so that the documents originally required to be specified in a local development scheme are now to be LDDs. Under the amended section 15 of the 2004 Act, a scheme need not include all LDDs: only those LDDs which are development plan documents.
• Regulation 2(4) amends regulation 8 of the 2004 Regulations as a consequence of the removal of the duty to specify LDDs other than development plan documents in a local development scheme.
• Regulation 2(5) and (6) amends regulations 16 and 17 of the 2004 Regulations as a consequence of the removal of the duty to provide a sustainability appraisal report for LDDs other than development plan documents.
• Regulation 2(7) amends regulation 24 of the 2004 Regulations as a consequence of the removal of the duty to submit the statement of community involvement to the Secretary of State under section 20 of the 2004 Act.
• Regulation 2(8) amends regulation 26 of the 2004 Regulations to remove the duty to consult the Secretary of State for Transport in relation to statements of community involvement.
• Regulations 2(9) and 2(10) amens regulations 27 and 30 of the 2004 Regulations as a consequence of the removal of the duty to submit the statement of community involvement to the Secretary of State under section 20 of the 2004 Act.

The Town and Country Planning (Appeals) (Written Representations Procedure) (England) Regulations 2009 2009/452

Section 78 of the Town and Country Planning Act 1990 (“the Act”) confers a right of appeal against certain planning decisions of a local planning authority and against cases where a local planning authority fails to notify such a planning decision within prescribed periods.  These Regulations lay down the procedure and time limits in connection with appeals which are to be considered on the basis of representations in writing. They revoke and replace, with some changes, the Town and Country Planning (Appeals) (Written Representations Procedure) (England) Regulations 2000 subject to the transitional and saving provisions in regulation 20.  The main changes made by the Regulations are the introduction of a new, expedited procedure in Part 1 of the Regulations. This applies where the Secretary of State has determined under section 319A of the Act that a householder appeal shall be dealt with on the basis of representations in writing.

Where Part 1 of the Regulations apply, the main changes to the procedure are—

• that the local planning authority must send a completed questionnaire, and associated documents, within 5 working days of the starting date
• interested parties are notified of the appeal and are given the opportunity to withdraw any representations they made in relation to the application, but they are not given the opportunity to make any further representations in relation to the appeal
• the appellant and local planning authority are not given an opportunity to comment on each others representations
• the Secretary of State may proceed to a decision on an appeal taking into account only those representations which were submitted within the relevant time limits, where it appears that there is sufficient material to enable a decision to be reached and after giving written notice of the intention to do so.

The Secretary of State may transfer an appeal from Part 1 procedures and continue to deal with it under Part 2. If it is determined that the appeal should no longer proceed on the basis of representations in writing, the Secretary of State may make a subsequent determination to vary the original determination as to procedure so that the appeal is considered at a local inquiry or at a hearing.  There are minor changes to the procedures in the 2000 Regulations, which are now replaced by Part 2 of the Regulations.

The Town and Country Planning (General Development Procedure) (Amendment) (England) Order 2009 SI 2009/453

The Order makes amendments to the current Town and Country Planning (General Development Procedure) Order 1995 (“the GDPO”):

• A minor amendment to the definition of playing pitch for the purposes of consultation requirements before the grant of planning permission under article 10 of the GDPO.
• A reduced time limit and different documentary requirements for “householder appeals” and some other minor changes to the required notices.

The Town and Country Planning (Determination of Appeal Procedure)(Prescribed Period)(England) Regulations 2009/454

Section 196 of the Planning Act 2008 inserted a new section 319A into the Town and Country Planning Act 1990, giving the Secretary of State the power to determine the procedure for specified appeals. Under the new provision the Secretary of State must make a determination before the end of the prescribed period. These regulations prescribe that period as seven working days from receipt of a valid appeal, and “receipt of a valid appeal” is defined for these purposes.

The Town and Country Planning (Hearings and Inquiries Procedures) (England) (Amendment) Rules 2009 SI 2009/455

These Rules amend the Town and Country Planning (Hearings Procedure) (England) Rules 2000, the Town and Country Planning Appeals (Determination by Inspectors) (Inquiries Procedure) (England) Rules 2000, the Town and Country Planning (Inquiries Procedure) (England) Rules 2000 and the Town and Country Planning (Major Infrastructure Project Inquiries Procedure) (England) Rules 2005.

• In the Hearings and Inquiries Rules amendments have been made to the definition of starting date. Starting date now means the date of the notice given by the Secretary of State setting out the procedure under which the appeal or application is to be considered. Rules imposing a new requirement on the Secretary of State to send such a notice and consequential amendments to these changes have been made.
• In the Hearings and Inquiries Rules the right of the appellant, the local planning authority and any other person who sends a statement of case in accordance with these Rules, to comment on another person’s statement of case within 9 weeks of the starting date, has been removed.
• In the Inquiries Rules amendments have been made to bring forward the date for sending the statement of common ground to the Secretary of State
• All of the Rules listed above have been amended to ensure that where notification is given it must be given in writing.
• In the Hearings Rules, the method of procedure has been amended to take into account the new power of the Secretary of State to determine the appeal procedure under section 319A of the Town and Country Planning Act 1990
• Other clarificatory amendments have been made by rule 3(6)(a) to (c) and (10) and rule 4(5)(a) and (c) and (8).

Social security

The Social Security (Habitual Residence) (Amendment) Regulations 2009 SI 2009/362

Regulations amend the Income Support (General) Regulations 1987 the Jobseeker's Allowance Regulations 1996, the State Pension Credit Regulations 2002, the Housing Benefit Regulations 2006 , the Housing Benefit (Persons who have attained the qualifying age for state pension credit) Regulations 2006 (the Council Tax Benefit Regulations 2006, the Council Tax Benefit (Persons who have attained the qualifying age for state pension credit) Regulations 2006 and the Employment and Support Allowance Regulations 2008.  They provide that a person is ineligible for benefit where he or she is a "person from abroad", or "a person not in Great Britain", for the purposes of the State Pension Credit Regulations, that is to say where he or she is not habitually resident in the United Kingdom, the Channel Islands, the Isle of Man or the Republic of Ireland, subject to a list of exceptions.  The amendments made by these Regulations insert a new category into the list of persons who are excepted from having to satisfy the habitual residence test.  The amendments exempt a person who: arrived in Great Britain on or after 28 February 2009, but before 18 March 2011; immediately before arriving in the United Kingdom had been resident in Zimbabwe; and, before leaving Zimbabwe, had accepted an offer, made by Her Majesty's Government, to assist him or her to move to and settle in the United Kingdom.

The Housing Benefit (Amendment) Regulations 2009 SI 2009/614

This instrument amends the Housing Benefit Regulations to limit the Local Housing Allowance (LHA) levels, which determine the maximum Housing Benefit to be paid to private rented sector tenants, to the five bedroom rate in any area. From 6 April 2009, the five bedroom LHA rate will be the maximum payable for all new customers and those who move address to help prevent excessively high rents being met. A different process will be applied for existing customers who will be protected for 26 weeks from the date the new rate applies to their claim.