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Bulletin No 29

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Bulletin No 29

Bulletin No 37 November 2009

     LOCAL GOVERNMENT LAW

     Bulletin Editor James Goudie QC

     (Chapter 23, Housing, Rachel Kamm) 11 King’s Bench Walk Temple London

    This Bulletin covers material available to 31 August 2009. Filing instructions: please file at the front of the binder immediately before Bulletin 36. The binder should now contain Bulletins 1437.

Chapter 1: Local Authorities Relationships and

    Responsibilities

    The CA judgment on 9 June 2009 in Brent LBC v Risk

    Management Partners Ltd [2009] EWCA Civ 490 is an important

    case on local authority powers and public procurement in the context of the decisions of Brent to participate in London Authorities Mutual Limited (LAML), a mutual insurer established as a company limited by guarantee by a number of London Boroughs. The CA judgment in the LAML case is

    considered in this Bulletin in Chapter 5 in relation to LGA 1972 s 111 as a source of vires, Chapter 6 in relation to the making of the decision, Chapter 11 in relation to procurement, and Chapter 30 in relation to the promotion of well-being.

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In Forest Heath DC v Electoral Commission [2009] EWHC 1682

    (Admin) Foskett J held that, in making a draft proposal concerning the reorganisation of the structure of local government in Suffolk into a unitary system, the Commission’s Boundary Committee had erred in failing properly and fairly to evaluate a particular concept for a single-tier system suggested by a number of local authorities and of failing to engage in any dialogue about it.

    Chapter 5: Judicial Control of Local Authorities In the LAML case, referred to under Chapter 1 above, where Brent sought to rely both upon the well-being power in LGA 2000 s 2 (see under Chapter 30 below) and upon LGA 1972 s 111(1), the CA held in relation to the latter that the various steps required for Brent to participate in LAML were, unlike an ordinary contract of commercial insurance, too far removed from the substantive functions giving rise to risk for it to be said that those steps were incidental to those functions. The Court rejected the argument that the obtaining of insurance on a mutual basis ought to be treated as a single whole, rather than being subjected to an examination of the individual elements of the transaction. The establishment of a company, and the insurance of other authorities through that company and the giving of guarantees, were merely incidental to the incidental, even though this was

    not a case (unlike some of the previous s 111 cases) in which Brent was seeking to circumvent statutory controls upon its activities. Moore-Bick LJ said that if an authority could obtain what it needed by means of a simple contract, more elaborate arrangements were likely to involve elements which went beyond what was necessary for that limited objective.

    The Court also rejected an argument that entry into the contract of insurance was itself (by virtue of LG(C)A 1997) a function to which the other elements of participation in LAML were incidental.

The Court’s decision on s 111 represents a restrictive approach,

    and demonstrates the difficulties of relying upon s 111 in relation to transactions of any complexity.

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    On the interaction of statutory and common law duties of consultation, the decision of a divisional court in R (Hillingdon

    LBC) v Lord Chancellor is reported at [2009] LGR 554.

Chapter 6: The Taking of Decisions

    Had the CA in the LAML case held that LGA 2000 s 2 (see under

    Chapter 30 below) authorised participation in LAML, it would have gone on to hold that Brent had validly exercised that power, even though the minute of the relevant meeting did not formally record any conclusion that Brent’s executive considered that

    participation in LAML would be likely to achieve the promotion or improvement of the economic or social well-being of the area. Moore-Bick LJ applied the case law which indicates that, where recommendations in an officers’ report are adopted, the reasons

    for doing so are presumed to be those set out in the report. Suggestions that the report itself was unclear about the basis for the decision were dismissed as unrealistic on the facts.

    Note the Local Authorities (Overview and Scrutiny Committees) (England) Regulations 2009, SI 2009/1919, implementing arrangements for the overview and scrutiny of Local Area Agreements.

    Chapter 7: Local Elections

    In Finch v Richardson (2009) 1 WLR 1338 a divisional court

    held that bona fide ignorance of the law by a successful election candidate and agent in relation to declaration of certain election expenses could constitute inadvertence, within RPA 1983 ss 86

    and 167, as amended, entitling them to relief.

    The Political Parties and Elections Act 2009 received Royal Assent on 21 July 2009. The main purposes of the Act include: strengthening the regulatory role of the Electoral Commission through making available to it a wider range of investigatory powers and sanctions, through clarifying its advisory role and

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    through reforming its governance arrangements; putting in place arrangements to improve the transparency of donations to political parties and other entities subject to controls on donations; provision for the phased implementation of individual electoral registration in Great Britain, with additional identifying information (National Insurance (NI) number, date of birth, signature) being provided on a voluntary basis by those wishing to register from 2010 to 2015, and on a compulsory basis from 2015, subject to a positive recommendation by the Electoral Commission and Parliament that the system is ready for the change; enabling Electoral Registration Officers, in the event of an election, to make amendments to the Electoral Register in response to applications for registration made on annual canvass forms, before the Register is republished at the conclusion of the canvass; and enabling the Secretary of State to make an Order to require a public authority or other persons carrying out functions on behalf of a public authority to provide a specific Electoral Registration Officer with specific information from their databases, in order to ensure that the Electoral Register is as accurate and complete as possible.

    Part III of the Act relates to elections. Section 23 introduces new arrangements designed to expedite the registration of eligible electors in the event of an election falling within a canvass period. Subsection (1) inserts new s 13BB into RPA 1983, which enables Electoral Registration Officers to amend the published Register of Electors before the election is held to show details of new electors or other changes that have been recorded on a canvass form.

    Section 30 contains provisions requiring Registration Officers, after 1 July 2010, to take steps to collect identifying information from electors for the purpose of improving the accuracy of the Electoral Register. At this stage it will not be compulsory for electors to provide such information.

    Section 35 contains provisions empowering the Secretary of State to create, by Order, a scheme which requires a public or local authority to supply a Registration Officer with data which they can use for the purpose of maintaining a complete and accurate

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    Electoral Register and ensuring that any other information they hold on electors is accurate.

    Chapter 8: Local Authority Employment Law

    See Cheltenham Borough Council v Laird [2009] EWHC 1253

    (QB) where a local authority employer sued a former employee for making allegedly fraudulent or negligent misrepresentations in her job application to be Chief Executive and in particular in her responses to a medical questionnaire.

    Male colleagues of female equal pay claimants may bring piggyback contingent claims using the female claimants as comparators and may recover sums equivalent to those awarded to such comparators by way of arrears, ruled the EAT (Underhill P) in Hartlepool BC v Llewellyn, Middlesbrough BC v Matthews,

    South Tyneside BC v McAvoy and related cases,

    UKEAT/0006/08/CEA etc. Permission to appeal to the CA has been granted.

The HL has refused permission to appeal from the CA Slack v

    Cumbria County Council [2009] EWCA Civ 293 on time limits

    for equal pay claims; in South Tyneside MBC v Lord Chancellor

    (2009) EWCA Civ 299 on the meaning of employing authority

    for the purposes of the LGPS; and in Sandwell MBC v Arnold

    (2009) EWCA Civ 309 on statutory grievance procedures and equal pay claims.

In Somerset County Council v Pike [2009] EWCA Civ 808 the

    CA held that, in determining whether a rule that excluded part-time teachers who had already retired from rejoining the Teachers’ Pension Scheme had a disparate adverse impact on women, the EAT had correctly identified the appropriate pool of workers as one that consisted of teachers returning to work after retiring.

In Booth v Oldham MBC [2009] EWCA Civ 880, it was held that

    findings by an ET that, for the purposes of DDA 1995, an employee had not been disabled at the date of his dismissal, established that he had not been permanently incapable of

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    discharging his employment duties because of ill health, pursuant to LGPSR 1997.

    Chapter 10: Best Value

    The Local Government (Best Value Authorities) (Power to Trade) (England) Order 2009, SI 2009/2393, made pursuant to LGA 2003 s 95, replaces the Local Government (Best Value Authorities) (Power to Trade) (England) Order 2004, SI 2004/1705, and the Orders that have amended it, and provides that all best value authorities in England that are English local authorities within the meaning of LGA 1999 s 1(2) or fire and rescue authorities that are not also local authorities, are authorised to do for a commercial purpose anything which they are authorised to do for the purpose of carrying on any of their ordinary functions other than functions which they are required to carry out.

    Chapter 11: EC Public Procurement Rules

    In the LAML case, referred to under Chapter 1 above, the CA considered both the use of the Teckal exemption and delay in

    procurement cases. Brent had relied on Teckal to award insurance

    contracts to LAML without following the procedures contained in the Public Contracts Regulations 2006.

As regards Teckal the CA held that:

(1) the Teckal exemption applies to the Regulations;

    (2) the first Teckal condition for exemption can be satisfied by the joint control of a number of co-operating local authorities and the principle of Coditel Brabant is not

    confined to concessions; and

    (3) the existence of a contract between Brent and LAML was not fatal to the satisfaction of the first Teckal condition; but

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    (4) on the facts of this case there was insufficient control of LAML by the participating local authorities as members, and too much operational discretion vested in the board, to satisfy the first Teckal condition; although

(5) if the first Teckal condition had been satisfied, the second

    would also have been, notwithstanding the presence of affiliates.

    As regards delay, the CA held that time did not run against RMP in respect of its claim founded upon actual breach (as distinct from any earlier claim which there might have been for quia timet

    relief in respect of an apprehended breach) until the first actual breach; but that any failure by a contracting authority to comply with any step in the required procedure involves an actual breach and it is accordingly not open to a putative claimant to await the last in a series of actual breaches and to contend that time runs only from then.

On the same date, the ECJ gave judgment in Commission v

    Germany, Case C-480/06, in relation to co-operation between local authorities with the aim of ensuring that a public task that they all have to perform, namely waste disposal, is carried out, and that one of them (Hamburg) is enabled to build and operate a waste treatment facility under the most favourable conditions, owing to the waste contributions from the neighbouring authorities and the capacity which could thereby be attained. The ECJ concluded:

     44 It thus appears that the contract in question forms

    both the basis and the legal framework for the future

    construction and operation of a facility intended to perform a

    public service, namely thermal incineration of waste. That

    contract was concluded solely by public authorities, without

    the participation of any private party, and does not provide

    for or prejudice the award of any contracts that may be

    necessary in respect of the construction and operation of the

    waste treatment facility.

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     45 The Court has pointed out, in particular, that a public authority has the possibility of performing the public interest tasks conferred on it by using its own resources, without being obliged to call on outside entities not forming part of its own departments, and that it may do so in cooperation with other public authorities (see Coditel Brabant, paragraphs 48 and 49).

     46 The Commission stated at the hearing, moreover, that, had the cooperation at issue here taken place by means of the creation of a body governed by public law to which the various local authorities concerned entrusted performance of the task in the public interest of waste disposal, it would have accepted that the use of the facility by the Landkreise concerned did not fall under the rules on public procurement. It takes the view, however, that, in the absence of such a body for inter-municipal cooperation, a call for tenders should have been issued for the service contract concluded between Stadtreinigung Hamburg and the Landkreise concerned.

     47 It must be observed though, first, that Community law does not require public authorities to use any particular legal form in order to carry out jointly their public service tasks. Secondly, such cooperation between public authorities does not undermine the principal objective of the Community rules on public procurement, that is, the free movement of services and the opening-up of undistorted competition in all the Member States, where implementation of that cooperation is governed solely by considerations and requirements relating to the pursuit of objectives in the public interest and the principle of equal treatment of the persons concerned, referred to in Directive 92/50, is respected, so that no private undertaking is placed in a position of advantage vis-à-vis competitors (see, to that effect, Stadt Halle and

    RPL Lochau, paragraphs 50 and 51).

     48 It must, furthermore, be stated that there is nothing in the information in the file submitted to the Court to

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    indicate that, in this case, the local authorities at issue

    were contriving to circumvent the rules on public

    procurement.

     49 In the light of all those factors, and without there

    being any need to rule on the other pleas of the Federal

    Republic of Germany in its defence, the Commission’s

    action must be dismissed.

    Chandler v Camden LBC, on standing, is reported at (2009) LGR 417.

    Chapter 14: Litigation Involving Local Authorities Part I: The Consequences of Ultra Vires

    On a bank’s restitutionary remedies against local authorities arising out of swap transactions, and a change of position defence by the authorities, see Hangesund Kommune v DEPFA ACS Bank

    (2009) EWHC 2227 (Comm).

    Part IV: Liability and Tort

In Alexis v Newham LBC [2009] EWHC 1323 (QB) it was held

    that because there had been no reason to suspect that a pupil would misbehave if allowed access to an otherwise locked classroom, the LEA had not breached its duty of care to a teacher when the pupil accessed the classroom and poisoned the teacher’s water bottle with whiteboard cleaning fluid.

In Heffernan v Hackney LBC [2009] EWCA Civ 665 the CA held

    that a judge had been entitled to reject a claim for damages by a property-owner against the authority as the property-owner had failed to establish he had suffered any loss as a result of carrying out unnecessary repairs after the authority had served invalid notices requiring works to be carried out to the property.

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Chapter 19: Sources of Funds Non-Domestic

    Rating

    Note the Business Rate Supplements Act 2009.

    Note the Non-Domestic Rating (Deferred Payments) (Wales) Regulations 2009, SI 2009/2154 (W.179).

    Note the Valuation Tribunal for England (Membership and Transitional Provisions) Regulations 2009, SI 2009/2267, the Non-Domestic Rating (Alteration of Lists and Appeals) (England) Regulations 2009, SI 2009/2268, the Valuation Tribunal for England (Council Tax and Rating Appeals) (Procedure) Regulations 2009, SI 2009/2269, the Council Tax (Alteration of Lists and Appeals) (England) Regulations 2009, SI 2009/2270, the Valuation Tribunals (Consequential Modifications and Saving and Transitional Provisions) (England) Regulations 2009, SI 2009/2271, are all connected with the coming into force on 1 October 2009 of provisions of the Local Government and Public Involvement in Health Act 2007 that transfer the jurisdiction of the 56 current Valuation Tribunals in England to the Valuation Tribunal for England (the VTE). The Procedure Regulations

    deal with the procedure to be adopted by the VTE when dealing with council tax and rating appeals arising under the Council Tax Regulations and the Rating Regulations. The Valuation Tribunal Service (the VTS) will monitor the acceptance and effect of the establishment of the VTE. While it has no current plans to do so, the Government will keep under review whether the VTE and the VTS should at some stage be absorbed within the First-Tier Tribunal and the Tribunal Service respectively.

Chapter 20: Capital Finance

    The purpose of the Local Authorities (Capital Finance and Accounting) (England) (Amendment) (No 2) Regulations 2009, SI 2009/2272, is to allow local authorities to retain the capital receipts arising from the sales of dwellings (in most cases under the Right to Buy), where those dwellings are the subject of agreements under LGHA 1989 s 80B (inserted by Housing and

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