Legal News

R (on the application of W) v Hertfordshire County Council (transcript) [2023] EWHC 3138 ( Admin) What are the practical implications of this case? It underscores the need for LAs to scrutinise, in more detail, first‑instance decisions on whether to carry out EHC needs assessments at the initial stage, since generic, template‑like decisions appear to be issued and then abandoned once parents commence appeals and lodge proceedings. The Special Educational Needs and Disability Regulations 2014, SI 2014/1530 ( SEND Regulations) impose strict legal obligations on local authorities: not ‘best endeavours’ to finish assessments within defined periods, but ‘hard‑edged’ duties, with only very limited exceptions that apply. Therefore, a local authority acts unlawfully each time that it fails to complete an assessment and prepare the EHC plan within the time period specified in the SEND Regulations. The judgment also records the LA’s...

In this issue: Social housing Education Public procurement Social care Governance Planning Daily and weekly news alerts New and updated content New Q& As Social housing Challenging a rent repayment order made by the FTT on the basis that the house is not a HMO ( Barker v Shokar) In Barker v Shokar, the Upper Tribunal ( Lands Chamber) (the UT) allowed the appeal, setting aside a rent repayment order the First-tier Tribunal ( Property Chamber) (the FTT) had issued against the appellant. The dwelling was the home of the appellant and his mother ( B). It comprised four rooms that were let to separate individuals. The respondent tenant occupied one room for a defined period. She subsequently applied to the FTT for a rent repayment order, asserting that the property required licensing as a house in multiple occupation ( HMO) under the Housing Act 2004 ( HA 2004) and that no such licence had been...

In this issue: Children’s social care Judicial Review Social housing Education Social care Healthcare Planning Highways Daily and weekly news alerts New and updated content Children’s social care Local authorities and the assumption of responsibility to protect children ( HXA v Surrey County Council and another party) This appeal, brought by the defendant councils Surrey County Council and Wolverhampton County Council, examined when local authorities are taken to have assumed responsibility to safeguard children. The applicants, HXA and YXA, were minors when they suffered sexual or physical abuse by a parent or a parent’s partner. They contended that the councils owed them a common law duty of care, as children, to protect them from such harm. At first instance, and on appeal to a High Court judge, the councils succeeded in having the claim struck out under the...

HXA v Surrey County Council and another party [2023] UKSC 52, [2023] All ER ( D) 97 ( Dec) What are the practical implications of this case? The decision clarifies that, as a general rule, a local authority does not assume responsibility merely by carrying out its child protection functions in the course of its work. The Supreme Court nevertheless confirmed that an authority may, in the context of its social work activities, assume responsibility to shield a child from harm. Any such assumption is not confined to occasions where the authority has secured a care order in respect of the child concerned. It is also unnecessary to demonstrate particular reliance by the child on anything the authority said or did in order to establish that responsibility was assumed towards them. The judgment is therefore materially helpful to local authorities, and to their...

The case for reform Major infrastructure delivery has occupied significant government attention in recent years, with a range of action plans, strategies, policies, roadmaps and consultations diagnosing obstacles to delivery and setting out ways to overcome them. The government’s most recent infrastructure policy, published in November 2023, ‘ Getting Great Britain building again: Speeding up infrastructure delivery’, makes the case for additional planning reforms, accompanied by some new announcements. A recurring thread of earlier infrastructure policy, and a long-standing critique of the planning system, is that planning is too slow, too bureaucratic and too uncertain. Previous policy has presented various actions and proposals intended to address these concerns. This latest policy paper echoes those themes, but contends that further reform is required at every step of the planning process to deliver the government’s infrastructure objectives—both in the short term, to progress already...

In this issue: Planning Judicial Review Social housing Education Children’s social care Social care Healthcare Licensing Lex Talk®Local Government: a Lexis®Nexis community Daily and weekly news alerts New and updated content Latest Q& A Planning Updated National Planning Policy Framework published After completing its consultation, the government has released the revised National Planning Policy Framework ( NPPF). Toni Weston, a partner at Gowling WLG, offers commentary on the amendments. See News Analysis: Updated National Planning Policy Framework published. Appeal against refusal of permission for JR of order giving consent for construction of nuclear power station dismissed ( R (on the application of Together Against Sizewell C Ltd) v Secretary of State for Energy Security and Net Zero and another company) In the Court of Appeal ( Civil Division), in R (on the...

On 19 December 2023, the government issued its long‑awaited reply to the consultation on national planning policy reform alongside the updated NPPF, confirming that the changes answer concerns raised by locally elected members about weaknesses in the planning system. The update offers firmer Green Belt protections, clearer guidance on assessing future housing supply in plans, certainty that urban authorities must play their full role in meeting housing need, and safeguards for the character of valued neighbourhoods by preserving the gentle density of suburbs and ensuring family homes remain for the next generation. Taken with other provisions in the Levelling Up and Regeneration Act, the revisions cement the importance of beauty in new development, enable better infrastructure delivery, respect the democratic voice of local communities, secure improvements to the natural environment and create quality new...

R (on the application of IAB and others) v Secretary of State for the Home Department and another [2023] EWHC 2930 ( Admin) What are the practical implications of this case? This important ruling (which may yet be appealed) appears to mark a shift in the Administrative Court’s approach to when it is acceptable to redact names in materials produced by the defendant on disclosure. It is delivered against a backdrop where, via social media and websites, documents used in litigation routinely become accessible to the public. Moreover, defendants at times feel compelled to carry out a comprehensive disclosure exercise (searching for documents) to convince claimants that they have fulfilled their duty of candour. Even so, Mr Justice Swift emphasised that the conduct of litigation should not be driven by fear of the baser instincts of a misguided minority (para [28]), and remarked that open debate about...

NRS Saredon Aggregates Ltd v Secretary of State for Levelling Up, Housing and Communities and another [2023] EWHC 2795 ( Admin) What are the practical implications of this case? Fundamentally, the judgment reiterates what is evident from EA 2021, s 98 and Sch 14: there is currently no statutory duty for planning proposals to prove delivery of a 10% biodiversity net gain, and once that duty is activated it will relate only to new submissions. Although the National Planning Policy Framework seeks a positive biodiversity net gain, this is (a) a policy matter rather than a legal requirement, and (b) contains no percentage target, so any improvement qualifies as positive and should be given appropriate weight accordingly. The ruling is also a timely reminder that the biodiversity net gain obligation is not retrospective, particularly as it is scheduled to take effect in January 2024. In...

Virgin Enterprises Ltd v Brightline Holdings LLC [2023] EWHC 2240 ( Comm) What are the practical implications of this case? The decisive issue is how the contractual clause is construed and the meaning assigned to it when assessing whether a breach has occurred. The pertinent expressions in the TMLA were considered unclear, as they were neither defined nor terms of art with a settled, widely recognised meaning among marketing practitioners. Consequently, greater weight had to be given to the factual and commercial background: the overarching purpose of the clause and the agreement containing it; the facts and circumstances known or readily available to both parties at the time of contracting; and commercial common sense—more than is usually required when interpreting a professionally drafted commercial contract. For the defendant to prevail, it needed to demonstrate that the conditions for...

Campbell v NHS Business Services Authority [2023] EWCA Civ 1351 What are the practical implications of this case? This judgment confirms that the NHSBSA has been properly administering the 1995 section of the NHS Pension Scheme (the 1995 Scheme), and clarifies that the date of retirement from pensionable employment is extended where leave has accrued but remains untaken. The court went on to make observations about statutory interpretation, with particular emphasis on the nature and operation of ‘deeming’ provisions in practice. It also remarked that it would appear ‘odd’ to be receiving benefits in respect of an employment whilst, at the very same time, accruing further service and paying the contributions upon which those benefits are calculated. The aspect likely to attract the widest interest among litigants is the determination on costs. Ultimately, despite the claimant’s impecuniosity, and...

R (on the application of Tottenham Hotspur Ltd) v Haringey London Borough Council [2023] EWHC 2569 ( Admin) (18 October 2023) What are the practical implications of this case? This judgment provides a clear appraisal of the duties imposed on local planning authorities ( LPAs) when determining planning applications, emphasising the breadth and exactness expected of the analysis and conclusions set out in an officer’s report. It explains how an LPA must enable planning committee members to exercise their judgements on a proposal and examines when members might be misled regarding material considerations relevant to the decision. Mr Justice Saini confirmed that the proper test for challenges to an LPA’s decision arising from alleged flaws in an officer’s report is whether, but for the defective advice within that report, the committee’s decision would, or might, have been different. The judgment also explores the lawful...

R (oao London Fluid System Technologies Ltd and others) [2023] EWHC 2206 ( Admin) The claimant company had participated in a disguised remuneration scheme and later concluded a settlement with HMRC. Subsequent to the Morse review of the loan charge and the launch of the 2020 disguised remuneration repayment scheme, the company sought a repayment, which HMRC declined. The claimants therefore commenced judicial review proceedings challenging HMRC’s decision, utilising the email service that HMRC introduced during the coronavirus ( COVID–19) pandemic. The claimant’s solicitor sent the claim forms to the email address of the solicitor already appointed to handle the matter, rather than to the address specified in the press release announcing the email facility. In doing so, he relied in particular on prior experience in three other judicial review cases in which HMRC had accepted that......

What is the background to the IPO’s Transformation Programme and what stage has the consultation process reached? The UK government unveiled the One IPO Transformation Programme (the Programme) on 22 April 2021. Its objective is to create a centralised, digital platform for administering all UK‑registered intellectual property ( IP) rights, renewing how the UK Intellectual Property Office ( IPO) delivers its services and internal processes, and ironing out unnecessary discrepancies in the treatment of different categories of IP rights. Between 3 November 2022 and 6 January 2023, the IPO conducted its first consultation on how the IP legal framework might be adapted to achieve the Programme’s proposed outcomes. That consultation had two strands, with Part A addressing the digitisation of IPO services and Part B examining the uniform operation of the IPO Tribunal ( Tribunal). It further permitted respondents to nominate...

What IP issues are involved in making a film that is based on a well-known product like the Barbie doll? ‘ Barbie’ is one of the most talked-about films of the summer. When crafting a feature based on a famous product such as the Barbie doll, a host of IP questions arises. We will return to trade mark protection and the more obvious IP categories, but the launch point for a project like Barbie is a knockout script. A production of this scale is threaded with numerous layers of IP, from the screenplay to the music script. Although Greta Gerwig’s direction has been widely highlighted, there has been less focus on her partner and co-writer, Noah Baumbach. Inevitably, there will be intricate contractual arrangements (likely several) covering authorship and ownership of the screenplay and its related copyright. Copyright also safeguards the...

Facts Jackie Maguire, aged 52, had Down’s syndrome, a moderate learning disability, and cyclothymic personality disorder. She had resided in the care home from 1993. On 22 February 2017, she tragically died due to pneumonia, a perforated gastric ulcer, and peritonitis. After hearing the inquest evidence, the coroner ruled that the enhanced procedural obligation under Article 2 ECHR was not engaged, so there was neither a requirement nor a power to instruct the jury to reach an expanded conclusion. The jury therefore returned a brief Jamieson-style finding of natural causes. Court of Appeal Hill Dickinson’s article ' R ( Muriel Maguire) v HM Senior Coroner for Blackpool and Fylde [2019] EWHC 1232' explains the Court of Appeal’s view that her ‘total dependence’ under Do LS was not equivalent to state detention. It further confirms that a series of individual mistakes by healthcare...

What is embodied carbon and why is it important? There is no single, settled definition of ‘embodied carbon’ in planning legislation or policy. In general, it refers to the greenhouse gas emissions tied to constructing a building—and, depending on the assessment’s scope, dismantling it at end of life—as opposed to the ‘operational carbon’ arising from the building’s use. Together, embodied and operational carbon contribute to a building’s whole‑life carbon emissions. Although progress is still required, the real estate industry has made notable advances in cutting operational carbon, from energy‑efficient lighting to on‑site solar PV, which means embodied carbon is becoming relatively more significant. While embodied carbon has not historically received the same attention as operational carbon, there is now broad recognition that it must be rigorously measured and assessed if the built environment is to support the government’s legally binding objective of reaching net zero by...

What are the main provisions of the Bill? The Bill, laid before the House of Commons on 17 May 2023, contains a substantial suite of reforms. The principal measures are: Abolishing section 21 notices and ending assured shorthold tenancies: Section 21 notices will be removed, so in future every claim for possession must rely on grounds under section 8 of the Housing Act 1988 ( HA 1988). With HA 1988, s 21 falling away, assured shorthold tenancies ( ASTs) will also cease (subject to any transitional arrangements), meaning all lettings will be assured tenancies. Tenancy deposit protection, a cornerstone of the present AST framework, will remain in force; where a landlord fails to meet the deposit requirements, service of a valid section 8 notice will be barred for almost all grounds. Ending fixed-term tenancies: Fixed terms will be prohibited, with all tenancies becoming periodic. Each period must be...

R (on the application of British Gas Trading Ltd) v Secretary of State for Energy Security and Net Zero [2023] EWHC 737 ( Admin) Key points The court underscored the need for stringent time limits in judicial review to safeguard the public interest in sound administration Whilst acknowledging the Administrative Court is ordinarily not the forum for resolving factual disputes, it observed that judicial review procedures are sufficiently adaptable to deal with such issues where necessary The court affirmed that, in commercial settings where decision-makers hold particular expertise, the Administrative Court will apply a light-touch standard of review Background In 2021, Bulb, an electricity and gas supplier with roughly 1.5 million customers, faced severe financial strain. On 24 November 2021, the High Court made an Energy Supply Company Administration Order and appointed Joint Energy Administrators ( JEAs). The JEAs commenced a sale process for Bulb’s business. All three...

R ( Sandy) v Home Secretary [2023] EWHC 640 ( Admin) What are the practical implications of this case? Applicants should note that broad‑brush claims offer scant assistance in naturalisation applications. The particulars of any asylum claim should be reviewed with care, and material from that period augmented where necessary. The guidance sets an exacting bar for good character, so meticulous attention to its thresholds and the language employed is crucial. Of wider note is Mostyn J’s analysis of why he dismissed the claimant’s striking submission—summarised at paras [43]–[45]—that proportionality, rather than rationality, ought to be the operative test. For the principled foundations of the rationality standard in this sphere, see paras [25]–[33] and [38]–[42]. Ongoing attempts to invoke proportionality are likely to meet a frosty reception from the judiciary. As he remarks at para [47], within judicial review...