By Nicholas Dobson, Pinsent Masons, Leeds


Beware your statutory blind spot

Local authority lawyers can generally now reach out and find a legal power to suit the circumstance without much difficulty. The primary well-being power in part 1 of the Local Government Act 2000 is remarkably wide and adaptable - as long as you read the user manual.



However, it is vital that when authorities take decisions they exercise their discretion properly, complying with any relevant statutory duties. As Parliament has chosen to make those duties ever more extensive and pervasive, it can be easy to miss a hazard approaching.



The enhanced duty surrounding disability discrimination in section 49A of the Disability Discrimination Act 1995 is a case in point, for this - inserted by the Disability Discrimination Act 2005 - covers a spectrum of different aspects including: eliminating unlawful discrimination and harassment of disabled people, promotion of equality of opportunity, the promotion of positive attitudes to disability and encouraging participation in public life by disabled people.



The London Borough of Harrow came somewhat unstuck here when it decided to restrict adult care services to people with critical needs only. This is because it did so without the section 49A duty and its implications being brought to the attention of those taking the decision. The case in question was R (Chavda and others) v Harrow London Borough Council [2007] EWHC 3064 (Admin), judgment given on 20 December 2007 by Judge Mackie QC. As the court indicated, the council could not weigh matters properly without being aware of what its duties were. Those advising authorities will need to make sure the correct procedures are in place before decisions are taken.





The wisdom of Saloman

When, in July 1892, Aron Saloman transferred his prosperous business as a leather merchant and boot manufacturer to a family company, he was walking into legal history. The business subsequently entered stormy waters with a depression and strikes in the boot and shoe trade, resulting in liquidation with insufficient assets to pay the unsecured creditors. The liquidator sought to unravel the arrangements between Mr Saloman and the company arguing, among other things, that these were a fraud on the creditors. The House of Lords disagreed, accepting that in law the company was 'a different person altogether from the subscribers to the memorandum' (Saloman v Saloman [1897] A.C. 22).



Fast-forward some 111 years to 19 December 2007, when Paul Girolami QC, sitting as a deputy judge of the High Court, found that a litigant in person had no cause of action in private or public nuisance, or misfeasance in public office, against the London Borough of Southwark among others when she sued in her own name rather than that of the landowner company of which she was apparently sole director and shareholder. The case was Cheung v Southwark London Borough Council and others, and concerned alleged actions by the respondents which the claimant contended were preventing public access to her restaurant.



Private nuisance requires a proprietary interest in the land affected, and public nuisance and the civil liability for misfeasance in public office both require the loss to be incurred by the claimant. Since Ms Cheung had sued, not the company, she had no cause of action. Good news for the council but a hard lesson in company law for the claimant.





Charge!

Not, as you might be thinking, the famous Light Brigade but local authority services.



In January 2008, the Audit Commission, the local government spending and efficiency watchdog, issued a substantial report on maximising the benefits of local public service charges. These make a sizeable contribution to council finances - around 8% of total income and about half of council tax receipts. Top earners in 2006/2007 - 58% of all charging income - were: social services (including residential care, homecare, daycare and meals) and education as well as highways, roads and transport (which includes parking, public transport and congestion charging). The commission found the public more receptive to charging than is often assumed. However, people are more willing to pay when they can see what they are getting for their money and have a degree of choice. What, of course, will never play well are charges swollen to prop up inefficiency or to profiteer. An apparent case in point reported by one local newspaper was a pensioner being billed £118 for a modest five-minute electrical job.



From the legal point of view, authorities have various charging powers, most notably section 93 of the Local Government Act 2003, which enables charging at cost for discretionary services. However, the commission found this power 'remained largely unused', with only one in five councils believing charging is used to full potential.



The report also highlighted the strategic uses to which charging can be put. These include encouraging or discouraging use of services as well as targeting services at particular groups. Selective charging can also be used to promote recycling or participation in sports and leisure activities by target groups.



There are some useful case studies in the report that should give authorities food for strategic thought. Local government lawyers can no doubt earn valuable brownie points by creative use of legal powers to help their authorities achieve key policy objectives while keeping stakeholders on-side. The report can be found on the commission's website: www.audit-commission.gov.uk.





Bias, predetermination and purdah

On 20 December 2007, Jackson J quashed a decision of Redcar and Cleveland Borough Council to grant outline planning permission for a controversial mixed residential and leisure development in a wild birds and habitats special protection area (R (Lewis) v Redcar and Cleveland Borough Council and Persimmon Homes Limited [2007] EWHC 3166). This was because he found that the decision 'was unlawful by reason of apparent bias or apparent predetermination'.



Section 2 of the Local Government Act 1986 requires a local authority not to 'publish or arrange for the publication of any material which, in whole or in part, appears to be designed to affect public support for a political party'. Guidance issued under section 4 highlights the period between notice of an election and the election itself as being particularly sensitive for these purposes.



The council had produced a 'Guidance Note on Publicity' in the run-up to the 2007 elections that provided, among other things, that any 'meetings or decision... that do not involve controversial local issues should continue to go ahead'. However, despite the leader of the opposition specifically opposing the holding of a controversial meeting during the purdah period, the meeting went ahead.



Following the decision of the House of Lords in Porter v Magill [2002] 2 A.C. 357, the test for apparent bias is whether the fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility of bias. Jackson J in the present case noted that such observer was neither complacent, nor unduly sensitive or suspicious and was also 'cognisant of the practicalities of local government'. He also noted that the bias test applies equally to predetermination.



In the circumstances, Jackson J considered that the holding of the particular meeting during the purdah period was a clear breach of the council's guidance. For that and other reasons, including the fact that the proposed project had become a party political issue, he quashed the planning permission on account of apparent bias or apparent predetermination. Councils holding elections on 1 May this year will no doubt wish to exercise particular care in the light of the Redcar judgment.