Legal News

Marks and Spencer plc v Secretary of State for Levelling Up, Housing and Communities and others [2024] EWHC 452 ( Admin) What did the court decide? This legal challenge by M& S concerned the Secretary of State’s refusal of permission to demolish its Oxford Street flagship and replace it with a new nine storey mixed office and retail scheme. M& S succeeded on five of the six grounds. The High Court found the decision unlawful because the Secretary of State misread the NPPF, treating it as if it imposed a strong presumption for re‑using the existing building when no such presumption exists. He also failed to give adequate reasons for departing from the inspector’s conclusions. The judgment also confirms that offsetting requirements in the London Plan relate to operational carbon, not embodied carbon. This case offers increased clarity for the planning system for...

R (on the application of HXN) v Redbridge London Borough Council [2024] EWHC 443 ( Admin) What are the practical implications of this case? The practical lesson is straightforward: once a specialist need appears in an ECHP, the Local Authority ( LA) bears the statutory obligation to satisfy it and cannot shift that responsibility to third parties such as schools. The judgment further makes plain that the LA must do more than allocate budget or funding; it has to procure the concrete provision required, including securing specialist tutors. Moreover, unless some clear alternative factor disrupts delivery in a way that genuinely prevents the LA from providing the service, the duty remains with the LA. Consequently, non-compliance is liable to prompt the court to issue a mandatory order to cure the breach, compelling the LA to perform its statutory functions. A striking feature here was...

Barker v Shokar [2024] UKUT 17 ( LC) What are the practical implications of this case? This judgment is a further reminder of the need to ensure that applications seeking rent repayment orders engage with every material aspect of the intricate definition of what constitutes a licensable house in multiple occupation. Applications should, therefore, be prepared to deal comprehensively with those material elements. Where a dispute arises over any material fact that bears upon that definition, evidence must be produced that satisfies the criminal standard of proof. Parties litigating in the First Tier Tribunal should also ensure that the Tribunal applies its mind to all essential elements of the definition of licensable houses in multiple occupation when deciding whether an offence under HA 2004, s 40 has been committed and, in turn, whether a rent repayment order can be made. What was the...

In this issue Spring Statement 2024 Public procurement Social housing Education Social care Healthcare Planning Lex Talk® Local Government: a Lexis®Nexis community Daily and weekly news alerts New and updated content Latest Q& As Spring Statement 2024 Spring Budget 2024—key local government announcements On 6 March 2024, the Chancellor of the Exchequer, the Rt Hon Jeremy Hunt MP, presented the Spring Budget, setting out a range of points pertinent to local government professionals across governance, local government finance, healthcare, education, children’s social care, social care, social housing and planning. Commentary on the package and its implications for practice has been provided by Alan Murdie, Barrister at Council Tax Legal Services, Crowley Woodford, Partner at Ashurst, and Chrisa Tsompani, Partner at Davitt Jones Bould. See: LNB News 06/03/2024 114. Public...

What is the background to the consultation? In the Autumn Budget 2023, the Chancellor of the Exchequer, Rt Hon Jeremy Hunt MP, set out a number of measures, including plans to boost the capacity of the planning system so it can better serve businesses, such as rolling out premium planning services across England with guaranteed quicker decision dates for major schemes and fee refunds where deadlines are missed. In the Spring Budget 2024, presented on 6 March 2024, the government confirmed it would consult on this accelerated service. Later the same day, it released a consultation titled ‘ An accelerated planning system’. Open until 1 May 2024, the consultation invites views on proposals to: introduce a new accelerated planning service for major commercial applications, providing a decision within ten weeks, with fees refunded if that timeframe is not achieved revise the use of...

R (on the application of Montaño) v Lambeth London Borough Council [2024] EWHC 249 ( Admin) What are the practical implications of this case? This judgment is an object lesson in how a mishandled request to revisit a decision under HA 1996, Pt VI can spiral, and how the position can deteriorate further once the matter is examined by the High Court. At its core was a relatively straightforward question: did the council have a power to backdate an application? Evidence put forward by the claimant showed that, in other cases, the council had taken that very step. Despite this, the defendant failed to engage with the request at all, which precipitated the issuing of proceedings. It then painted itself into a corner by advancing Summary Grounds asserting there was no discretion whatsoever to grant the backdating sought, a stance flatly...

Cotham School v Bristol City Council and others [2024] EWHC 154 ( Ch) What are the practical implications of this case? In relation to a public authority appearing twice in the same proceedings while exercising distinct functions, the court applied the principle in Hardie & Lane Ltd v Chiltern ( Tort) [1928] 1 K. B. 663 and Allnutt v Wilding [2006] EWHC 1905 ( Ch), [2006] BTC 8040 (unreported by Lexis Nexis®UK), [2006] 7 WLUK 723 (unreported by Lexis Nexis®UK). The court confirmed this rule extends across all civil litigation, including the present dispute, and covers situations where the same party appears more than once as claimant, as defendant, or on opposing sides of the record in the same action. As a matter of principle, it was not defensible to argue the rule is displaced because statutory authorities are separate legal persons, distinct from the...

Rahimi v City of Westminster Council [2024] EWCA Civ 73 What are the practical implications of this case? The Court of Appeal offered valuable clarification on a body of law that has developed incrementally since Victorian times. The court distilled the following core propositions: To establish a surrender by operation of law of a joint tenancy, the party asserting it must prove that all joint tenants and the landlord were party to an arrangement inconsistent with the joint tenancy continuing. Where a tenant gives up possession and, at the tenant’s request or with the tenant’s consent, the landlord grants a fresh tenancy to a third party, that original tenant’s conduct is sufficient to amount to unequivocal behaviour. By contrast, permanently vacating a dwelling and asking for alternative accommodation does not amount to giving up possession; factual occupation is not the same as legal...

In this issue Social housing Education Social care Children’s social care Healthcare Governance Planning Daily and weekly news alerts New and updated content New Q& A Social housing Correcting a mistake after appeal brought against wrong respondent ( South Oxfordshire DC v Fertre) Two local housing authorities, each covering its own area, shared premises and personnel. Ms Fertre applied to one authority for help under Part 7 of the Housing Act 1996. That authority found her ineligible, and a review maintained the decision. On the last day of the 21‑day appeal period, her solicitors issued a County Court appeal but mistakenly named the other authority as respondent. After a solicitor acting for both authorities identified the mistake, Ms Fertre sought to amend the appellant’s notice to substitute the correct respondent. The County Court judge permitted the amendment and granted permission to appeal. On the authorities’ appeal, the High Court upheld the judge’s ruling. Written by Ian...

Churchill v Merthyr Tydfil County Borough Council [2023] EWCA Civ 1416 What are the practical implications of the case? This ruling could mark a watershed for ADR, likely prompting a sharp rise in mediations and other ADR mechanisms across disputes. The Court stressed the need to temper any compulsion with parties’ rights under Article 6 of the European Convention on Human Rights, and underscored judicial discretion throughout the judgment, signalling balance rather than automatic coercion. Its application will turn on the facts of each dispute. How that discretion is exercised will be case by case and fact-sensitive. Although the soundness of the Council’s complaints scheme was not ultimately ruled upon, parties should note that where a clear route to ADR is overlooked, they will be expected to explain the omission to the Court. Parties who are both represented and comparably resourced, in...

South Oxfordshire District Council and another v Fertre [2024] EWHC 112 ( KB) What are the practical implications of this case? It is not uncommon for an appellant to err when completing an appellant’s notice. In this matter, the High Court found that, where there is substantial compliance with the essential requirements, the appeal is properly instituted and the court retains power to rectify the error. Put another way, so long as the core formalities are met in substance, the appeal is validly brought despite a defect. The mistake here was serious and fundamental: the notice identified the wrong respondent. Even so, the two authorities had integrated their arrangements, sharing premises, a housing officer, a legal department and email accounts. The same review officer handled reviews under Part 7 of the Housing Act 1996 ( HA 1996) for both authorities and used a single email...

The University of Bristol v Dr Robert Abrahart ( Administrator of the estate of Natasha Abrahart, deceased) ( Equality and Human Rights Commission intervening) [2024] EWHC 299 ( KB) What are the practical implications of this case? Although the duty of care issue was not determined, the court’s ruling unmistakably aligns with the arguments advanced by Natasha’s family. It acts as a clear prompt for universities to revisit their policies and procedures, ensuring they are rigorous and genuinely effective, particularly where students have identified mental health conditions. Mr Justice Linden’s judgment invites further debate about the scope of universities’ obligations—potentially reaching into how investigations are conducted and the safeguarding of those involved. The case has also energised a campaign urging government to introduce a statutory duty of care owed by universities to their students. Yet, unless and until such a measure is enacted, this High Court...

In this issue: Public procurement Healthcare Social housing Children's social care Social care Education Local authority prosecutions Licensing Planning Daily and weekly news alerts Updated content Public procurement Inadvertent scoring mistake held not sufficiently serious or material enough to warrant award of damages ( Braceurself Ltd v NHS England) In this matter, a clerical scoring error—one that would have shifted the result by 0.25% in favour of the incumbent—was found neither sufficiently serious nor material to justify an award of damages. If the error had not been inadvertent, or had crossed the 'sufficiently serious' threshold, the Court of Appeal would probably, applying the Francovich case tests, have reached a different outcome and ruled for the aggrieved bidder. Summarising Francovich, Lord Justice Coulson noted that, although the principle originates in European law and remains...

This judgment underscores that any UK GDPR exemptions must accord with Article 23 of the Retained Regulation ( EU) 2016/679. That provision aligns with the constitutional ‘rule of law’, meaning departures from fundamental rights must be precisely framed, legally binding, and sanctioned by Parliament. Because the government’s intended immigration exemption policy did not satisfy those criteria, the exemption was unlawful. R (on the application of The 3million and another) v Secretary of State for the Home Department and others [2023] EWCA Civ 1474 What are the practical implications of this case? Policy This decision is significant beyond data protection and immigration, as it shows the court’s exacting stance when the government seeks to rely on a policy document (here, the ‘ Immigration Exemption Policy Document’ or IEPD) as a safeguard to justify and lessen interference with a fundamental right, rather than putting binding...

What are the practical implications of this case? This judgment supplies key direction to local authorities when preparing housing needs assessments and personalised housing plans under HA 1996, s 189A. Lang J underlined the need to evaluate, on every assessment, not merely the first, the requirements of the applicant and of those who might reasonably be expected to live with them. An assessor may evidence this by cross-referencing earlier housing needs assessments, and may draw upon pertinent information held by other departments within the authority. If the assessment is unlawful, any housing plan derived from it will inevitably be flawed. Lang J further stressed the necessity of consulting the applicant about revisions to assessments or plans, and of notifying the applicant of any such alterations. However, the authority is not obliged to spell out in detail the method by which it will search for a...

Re YM ( Care Proceedings) ( Clarification of Issues) [2024] EWCA Civ 71, [2024] All ER ( D) 53 ( Feb) What are the practical implications of this case? There are frequent situations in which a trial advocate, often in the immediate aftermath of a judgment, must decide whether to seek clarification of the trial judge’s findings. Harder still is judging how far to go. Where does one draw the boundary between a bona fide request to elucidate the judge’s reasoning and matters that properly belong in an appeal? Might the appellate court criticise a party for not first raising certain points with the trial judge before asking for permission to appeal? The touchstone is proportionality. Clarification ought to be requested only where it is required to grasp the judge’s conclusions on pivotal issues that inform decisions about a child’s future. Judges need not...

Braceurself Ltd v NHS England [2022] EWHC 2348 ( TCC) What are the practical implications of this case? Mistakes arise in public procurement from time to time; however, when courts seek to do justice between the parties, both the intention behind, and the impact of, such errors remain significant. For practitioners, the priority is to deploy relevant, objective selection criteria and to avoid scoring errors—whether inadvertent or otherwise—and to take prompt remedial steps at the earliest opportunity, thereby minimising the scope for contentious proceedings and unfavourable factual findings in court on a damages claim. At first instance, the judge concluded that the phrase “sufficiently serious” signals a relatively demanding threshold before the test is met, having regard to all the facts and circumstances (as recorded at para [15] of the judgment). Those threshold considerations are liable to provide some reassurance to...

The consultation focused on five policy areas: presentation of pricing information, hidden fees and drip pricing prohibiting bogus, misleading or deceptive reviews the function and responsibilities of online platforms and their professional diligence duties online interface orders further amendments to the list of commercial practices in all circumstances deemed unfair, and private redress, in the Digital Markets, Competition and Consumers Bill ( DMCC Bill) The government has now confirmed that it will be introducing some revisions to the DMCC Bill as it moves forward through the legislative process, although certain issues will be left for additional consideration. What are the key takeaways from the Government Response for traders selling goods and services to consumers? The government plans to legislate on fake reviews, drip pricing and unit pricing. Traders should reassess how they request and publish product reviews, and ensure that overall and unit...

R (on the application of Willott) v Eastbourne Borough Council [2024] EWHC 113 ( Admin) What are the practical implications of this case? The authority’s lettings scheme, and its adverse decision against the claimant under that framework, ultimately survived scrutiny; nonetheless, the judgment is essential reading for any council operating a Part VI Housing Act 1996 ( HA 1996) allocations policy that permits applicants to be barred, particularly on the basis of anti-social behaviour ( ASB) or misconduct. It is equally pertinent to the entitlements of disabled housing applicants where conduct may have been shaped by the disability itself. Of broader relevance is the analysis of whether a scheme must contain a mechanism for residual discretion, enabling the authority to take exceptional decisions in suitable cases. The court surveys the case law on this topic in depth (para [98]). The judge...

In this issue: Social housing Children's social care Public procurement Governance Education Social care Planning Environmental law and climate change Daily and weekly news alerts New and updated content Latest Q& A Social housing Housing allocation and exclusions—discretion and disability ( R ( Willott) v Eastbourne BC) A carefully reasoned and intricate Judicial Review judgment addresses the defendant local authority’s decision to exclude the claimant from its housing allocation scheme owing to her record of anti-social behaviour. The ruling scrutinises the scheme’s exclusion provisions, considers whether the authority’s treatment contravened the Equality Act 2010 ( Eq A 2010), and assesses the extent to which any allocation scheme must preserve a residual discretion. Of broader relevance is the exploration of whether a scheme must contain a clause enabling residual discretion so that a local...