There is always a public authority tension between what might be called 'customer-centred governance' and regulation. So while most local authorities will try to be 'customer responsive' to their council tax payers and other stakeholders, their regulatory functions mean that not everyone will always feel treated as a 'customer'. For, in its nature, regulation will often cause pain to those subject to its penalties and processes.

Equally though, local authorities have a responsibility to use their powers reasonably and proportionately. In other words, regulatory action should be exercised so that it bears a reasonable relation to the outcome required. Indeed, when in 2000 the government introduced a regulatory framework to govern the way in which public authorities use covert investigatory techniques, proportionality was enshrined within it.

The measure in question was the Regulation of Investigatory Powers Act 2000 (RIPA). The act enables local authorities, where necessary, to conduct specified surveillance proportionately to achieve specified statutory objectives involving (among others) public safety, public health and assessing or collecting taxes. As the government points out, local authorities can use RIPA to address various social ills including: trading standards issues (eg loan sharks and rogue traders); dealing with counterfeit goods, unsafe toys and electrical items; addressing benefit fraud and council tax evasion; and environmental protection, for example stopping large-scale waste dumping, sale of unfit food and illegal 'raves'.

In recent times, however, use of RIPA has attracted some controversy. For instance, the Times of 17 April highlighted the case of the Dorset parents put under surveillance by their local authority to check that they were not trying to cheat school catchment regulations. The article pointed out that the couple and their three daughters were followed for three weeks after an anonymous informer wrongly told their authority that they were lying about their address to get their youngest child into the same school as her siblings.

And concerns have been rumbling for a while. Back in July 2008, the Local Government Association (LGA) announced that its advice to authorities is that, except 'in the most unusual and extreme of circumstances', it is inappropriate to use RIPA powers for trivial matters and the '. . .leaders of the four political groups at the LGA also do not consider dog fouling or littering as matters which fall within the test of "necessary and proportionate'''. The Home Office has also indicated that '....it shouldn't be necessary or appropriate to use RIPA-directed surveillance powers to observe people putting their rubbish bins out early for collection'. RIPA powers should be used 'only where it is necessary and proportionate to do so'.

In this context the Home Office on 17 April issued a public consultation paper on RIPA. As it did so, the government indicated that, in the light of recent concerns, it is particularly interested in how local authorities use RIPA to conduct investigations into local issues. In her introduction, the then home secretary Jacqui Smith said she shared concerns about how 'a small number of local authorities have used techniques under RIPA when most of us would say it was not necessary or proportionate for them to do so'. She indicated that she did not 'think it is right for RIPA to be used to investigate offences relating to dog fouling or to see whether people put their bins out a day early'. The LGA agreed, saying that all public bodies using surveillance powers 'must rebuild public confidence by demonstrating this is done to help bring serious criminals to justice'.

So the consultation asks whether the rank at which local authorities authorise the use of covert investigatory techniques be raised to 'senior executive'. It also consults on whether elected councillors should be given a role in overseeing the way in which local authorities use such techniques. The government says that it would particularly like to hear from members of the public, campaigning groups and specialist organisations concerned with the provision of public authority services and human rights considerations. The consultation closes on 10 July and the paper can be accessed at: www.homeoffice.gov.uk/documents/cons-2009-ripa.

Secure tenancies and minorsThe problem with the unexpected is its sheer unexpectedness. The sun may be shining, the way ahead clear and then, out of the blue, it happens. That may have been the feeling of housing officers in the London Borough of Hammersmith and Fulham when they purported to grant a tenancy to a minor, no doubt unaware of the legal complexities this would unleash.

The 'tenant' in question (the appellant), when aged 16 and pregnant, had applied to the council for accommodation under the homelessness provisions of the Housing Act 1996. For, following regulations in 2002, homeless 16- or 17-year-old applicants now have a priority need for accommodation. The council thereupon entered into a tenancy agreement with the appellant in its standard form. Subsequently, when complaints were received about nuisance and rubbish in respect of her occupation of the premises, the council served a notice to quit upon her. However, she complained (among other things) that, since she could not hold a legal estate, the notice to quit was not effective. Her contentions were upheld by the Court of Appeal on 1 April in Alexander-David v Mayor and Burgesses of the London Borough of Hammersmith and Fulham [2009] EWCA Civ 259.

The case will prompt local government lawyers to recall (with varying degrees of affection) the Elysian fields of equity and trusts. For section 1(6) of the Law of Property Act 1925 provides that a minor is incapable of holding a legal estate. And (per paragraph 1(1) of schedule 1 to the Trusts of Land and Appointment of Trustees Act 1996) any purported grant of a legal estate to a minor will not achieve this but will operate as a declaration that the premises are held in trust for the minor. In the circumstances, the Court of Appeal agreed that, for so long as the council held the premises in trust for the appellant, it could not lawfully destroy the subject matter of the trust by serving notice to quit upon the appellant. Sullivan LJ (who gave the leading judgment) said that the council, in the absence of any other trustee, was in the uncomfortable position of being both lessor and trustee. As lessor, the council was not merely a party to the breach of trust, but the instigator of the breach. Consequently, he concluded that service of notice to quit only on the appellant minor as beneficiary of the trust was not sufficient to terminate the tenancy that was being held by the council as trustee on her behalf.

Nevertheless, although it is not the role of the courts to advise, Sullivan LJ did helpfully suggest that, in such cases, the proper grant of a genuine licence may assist, as might an agreement to grant a lease for the period until such an applicant turns 18. But, in any event, the court highlighted the importance of expressly recognising the inability of a minor to hold a legal estate and stating that such an estate is not being granted but the council is instead securing that accommodation is available by granting something other than such an estate.

ConsultationIn the leading case of R v North and East Devon Health Authority ex parte Coughlan [2001] QB 213, Lord Woolf had identified the elements of effective consultation. It must be undertaken at a time when proposals are still at a formative stage; it must include sufficient reasons for particular proposals to allow those consulted to give intelligent consideration and an intelligent response; adequate time must be given for this purpose; and the product of consultation must be conscientiously taken into account when the ultimate decision is taken. Given this, the Court of Appeal found on 25 March 2009 that a consultation conducted by the boundary committee in the context of local government review had in the circumstances fallen short (see R (Breckland District Council and others) v Boundary Committee; R (East Devon District Council) v Boundary Committee [2009] EWCA Civ 239).

Where the boundary committee erred was in its consultation on affordability. For the financial information provided was complicated and indigestible. And the '. . .need to explain the financial side of the draft proposals to the public in an understandable way was lost sight of or not understood'. As the court noted, the relevant statutory requirements included publishing enough material to enable those interested to respond intelligently. That, in turn, required the information to be published in a form which members of the public could understand. Therefore, any public authority contemplating a future consultation exercise will need to make sure that this will be conducted so as to be fit for its particular purpose - statutory or otherwise.

Nicholas Dobson, Pinsent Masons, Leeds