Legal Practice Notes

This Practice Note considers agreements to agree, explaining why a promise to settle particular contractual terms at a later date has traditionally been treated as unenforceable. It also examines those situations where courts have nevertheless upheld contracts as binding, despite an apparent lack of certainty over fundamental terms. Principle Traditionally, contracts that contain an agreement to agree future contractual terms have been viewed as too uncertain to enforce. Whether a binding contract exists is assessed by an objective test, namely: on the evidence, a reasonable person would conclude the parties were in agreement and intended to create legal relations (the parties’ own views are disregarded), and the contract is sufficiently certain to be enforceable. Agreement For a contract to be binding, its terms must be definite enough for the court to give them practical effect and, in particular, those terms must be enforceable without the need for any further...

Affordable housing Affordable housing refers to homes offered to people struggling with housing costs whose needs are not satisfied by the open market. It can take a range of forms, but whatever the model, it is always made available at below market price and delivered either by local planning authorities ( LPAs) or approved registered providers. The government funds part of new affordable supply mainly through its delivery agency, Homes England (see: Role of Homes England below). However, a substantial share is secured through the planning system from private developers. LPAs are obliged to ensure their local plans address requirements for both market and affordable homes. When an LPA identifies an affordable housing need, it should set policies that require market-led schemes to include a defined proportion of affordable homes—policy commonly starts at around 30%—which will usually be sold to, and managed by,...

Offence of the sale of aerosol paint to persons aged under 16 Selling an aerosol paint container to anyone under 16 constitutes an offence under section 54 of the Anti-social Behaviour Act 2003 ( ASBA 2003). For these purposes, an aerosol paint container is a device that: holds paint kept under pressure, and is intended to release the paint as a spray The purpose of this offence is to cut the occurrence of criminal damage linked to acts of graffiti. See Practice Note: Criminal damage. Defences to offence under ASBA 2003, s 54 It is a defence for a person charged under ASBA 2003, s 54 to prove: that they took all reasonable steps to verify the buyer's age, and that they believed the buyer was not under 16 Where the sale was carried out by another individual, it is also a defence to show that the...

Practice Note Please note that this Practice Note addresses the law as it presently applies in England. In Wales, the legal position is governed by the Social Services and Well-being ( Wales) Act 2014 together with its associated statutory instruments. For further reading and detail, see the Practice Note: Local authority duties to looked after children in Wales. This Note aims to support practitioners in understanding local authority obligations towards children and young people who may qualify for advice and assistance, i.e. relevant children. The material will be of use to practitioners who: act on behalf of local authorities represent parents or guardians in care proceedings involving a child aged 16 or 17 advise looked after young people about the duties owed to them by the local authority advise on, or prepare for, judicial review of a local authority for failing to fulfil their duties under the...

This Practice Note outlines the overarching principles guiding the court in adoption cases, including the paramountcy principle and the effect of delay on timely decision-making. It also addresses how the welfare checklist is applied, the spectrum of powers available, and the requirement that no order be made unless doing so is better for the child. The core principles governing adoption are found in section 1 of the Adoption and Children Act 2002 ( ACA 2002). Those provisions apply, in differing ways, to the court, an adoption agency, or both. A local authority with responsibility for children’s services is an adoption agency and, when operating in that role, acts in that capacity, which differs from exercising its powers and duties under the Children Act 1989 ( Ch A 1989) in such proceedings......

This Practice Note outlines the overarching approach to contact orders before and after adoption, setting out the general principles to be applied. It explains who can seek a contact order within adoption proceedings, the procedure to be followed, and provides guidance on the duration, alteration and suspension of contact orders in adoption, as well as discharge considerations and associated practice issues. Planning for adoption and contact Contact must be explicitly addressed in the social worker’s permanence report and also by the agency decision-maker at approval. In uncommon instances where the adoption panel decides whether children should be placed for adoption, and in every case involving matches between children and prospective adopters, the panel must consider contact matters too. There is no assumption either way about contact once the adoption agency is authorised to place the child for...

Anti-social behaviour ( ASB) ASB is an umbrella term capturing everyday occurrences of crime, nuisance, disruption, disturbance, annoyance and disorder. It covers behaviours such as: littering vandalism noise nuisance loud music aggressive dogs abusive neighbours Local authorities may need to respond to ASB in both housing and non-housing settings. In housing, a landlord might have to address issues between neighbours, members of the same household, or problems caused by uninvited visitors to estates. Outside a housing context, ASB can involve street drinking, gangs of youths and prostitution. Reform of anti-social behaviour powers (2014) The Anti-social Behaviour, Crime and Policing Act 2014 ( ABCPA 2014) obtained Royal Assent on 13 March 2014, overhauling the tools for tackling ASB. Its purpose was to streamline remedies and make processes simpler and more effective. In July 2014, the government issued statutory guidance, ‘...

Three types of academy A large share of state-funded secondary schools in England now operate as academies. The Department for Education ( Df E) routinely releases a spreadsheet setting out the overall number of academies, with information on schools that have converted or are in the process of doing so. There are no academies in Wales. Although the Academies Act 2010 ( Ac A 2010) extends to Wales, the provisions for establishing and funding new academies apply solely in England. The statutory definition of an academy school appears in Ac A 2010, s 1A. In legal terms, academy schools are treated as independent schools, but their independence is from the local authority in whose area they sit, not from the state. a ‘special academy’ where it is arranged to provide special educational provision for pupils with special educational needs an...

FORTHCOMING CHANGE: The Charities Act 2022 ( CA 2022) secured Royal Assent on 24 February 2022. As detailed in the Charities Act 2022: implementation plan, its provisions are intended to take effect in three defined tranches over three stages: on 31 October 2022, on 14 June 2023, and in early 2024. For a digest of the CA 2022 measures already commenced, see Charities Act 2022: information about the changes being introduced. CA 2022 enacts the bulk of the recommendations from the Law Commission’s 2017 report, ‘ Technical Issues in Charity Law’. For a summary (as at 9 April 2021) of the recommendations that have been accepted, see News Analysis: Government response to Law Commission report ‘ Technical Issues in Charity Law’. A school within the maintained sector can move to independent academy status under the Academies Act 2010. Conversion takes place once the...

FORTHCOMING CHANGE: The Charities Act 2022 ( CA 2022) obtained Royal Assent on 24 February 2022. As explained in the Charities Act 2022: implementation plan, its provisions are intended to be commenced in three defined groups across three stages—on 31 October 2022, on 14 June 2023, and in ‘early 2024’. For an outline of what has been brought into effect so far, see Charities Act 2022: information about the changes being introduced. The CA 2022 enacts the bulk of the recommendations from the Law Commission’s 2017 report, ‘ Technical Issues in Charity Law’. For a synopsis (as at 9 April 2021) of the proposals that have been accepted, refer to News Analysis: Government response to Law Commission report ‘ Technical Issues in Charity Law’. In practice, while the same legislation applies to both, academies and free schools can differ...

Note: Although the Academies Act 2010 ( Ac A 2010) extends to Wales, the provisions enabling the establishment of new academies or free schools are confined to England. Therefore, this Practice Note relates solely to England. One much‑touted benefit of an academy or free school, when compared with a maintained school, is a degree of autonomy in setting the curriculum. That freedom is not absolute, naturally, yet it is greater by comparison. That relativity remains worth remembering here. The curriculum generally Ac A 2010, s 1A(1)(b) (as amended) obliges an academy or free school to meet the requirements in section 78 of the Education Act 2002 ( EA 2002) (which would otherwise bite only on maintained schools): namely, a balanced and broadly based programme of study that fosters the spiritual, moral, cultural, mental and physical development of pupils at the school and of society, and...

While the Academies Act 2010 ( Ac A 2010) extends to Wales, the powers to establish new academies and free schools are limited to England in scope. Accordingly, this Practice Note is relevant to England alone and should be read on that basis, for the purposes considered here. Who is the employer? In academies and free schools, the employer is the trust (that is, the trustees) or a proprietor. By contrast, in maintained schools the local authority or the governing body is the employer. For detail, see Practice Note: Teachers and staff in maintained schools. For more on status, see: Status and worker categories—overview. For guidance on school types, see: School organisation and regulation—overview, and for staff in maintained schools, see Practice Note: Teachers and staff in maintained schools. For more on governing bodies, see Practice Note: School...

This Practice Note pertains solely to England. While the Academies Act 2010 ( Ac A 2010) also extends to Wales, the provisions establishing and funding new academies operate only in England. Wales has no academies. What is an academy school? In law, free schools fall within the academy category. Both are created or run under the Ac A 2010. When opened, academies commonly superseded earlier maintained schools. Most free schools have been founded as entirely new institutions, though a small number have transferred from independent school status. For this Practice Note, ‘academy’ includes ‘free school’ unless expressly stated otherwise. The definition of academy schools appears in Ac A 2010, s 1A. Academy schools are, in technical terms, independent schools; however, their independence is from the local authority ( LA) in which they are located, not from the state. Their funding is derived from the...

Solicitors must consider the mental capacity of their clients in everything they do The assessment of capacity arises when: there is doubt whether an individual can decide, covering matters from marriage to consenting to or declining medical treatment to making a Will capacity might influence a proposed transaction and those directly or indirectly affected it is necessary to think about third-party participation in decision-making Every person has the right to choose, even if others see that choice as mistaken or unconventional. Generally, there is no need to intrude upon that process. Yet, while upholding personal autonomy, English law has long accepted that some people lack the mental capacity to bear responsibility for their choices. Traditionally, capacity law was drawn from various judicial authorities and legislation, including the Enduring Powers of Attorney Act 1985 and the Mental Health Act 1983......

What is the climate change levy? The climate change levy ( CCL) is a compulsory charge on energy used by UK businesses. It is applied at the point of supply, referred to as taxable supplies. HMRC oversees the levy, while energy suppliers add the charge to invoices and collect it. The levy applies to most non-domestic electricity, gas and solid fuels across the United Kingdom. Taxable supply A taxable supply means the provision of a taxable commodity, which can include self-supply, by an energy supplier to a business consumer that is not excluded from, or exempt under, the CCL. What is a business consumer? Business consumers are those operating in: industry commerce agriculture public administration Definition of self-supply A self-supply arises when a gas or electricity supplier, or a producer of other taxable commodities, uses its own output for its own business activities (e.g., heating and...

This Practice Note introduces disclosure under the Civil Procedure Rules, highlighting the principal CPR provisions that regulate disclosure under CPR 31. It clarifies what constitutes a document for CPR purposes and supplies practical guidance for conducting a disclosure exercise. Note: this Practice Note does not cover claims within the Business & Property Courts Disclosure Scheme. For further detail, see: Disclosure Scheme ( Business & Property Courts)—overview. For assistance determining which disclosure regime applies to your matter, see: Which disclosure rules apply to my claim—flowchart? This Practice Note should be read together with: Disclosure—overview Inspection—overview Privilege and without prejudice communications—overview At the pre-action stage, be aware that certain pre-action protocols impose disclosure duties before proceedings commence. For more information, see: Pre-action disclosure and Norwich Pharmacal—overview. CPR provisions governing the disclosure process The CPR and case law form the legal framework governing...

This Practice Note sets out the role of the National Institute for Health and Care Excellence ( NICE), clarifies its clinical guidelines, and gives examples of how to locate and use those guidelines in practice. What is the National Institute for Health and Care Excellence and what does it do? The National Institute for Health and Care Excellence ( NICE) is an executive non-departmental public body, created under the Health and Social Care Act 2012. Initially formed in 1999 as the National Institute for Clinical Excellence, it adopted the name NICE in 2005. It issues guidance for health, public health and social care practitioners and commissioners, develops quality standards, and supplies information services spanning health and social care. NICE’s guidance is delivered across three main areas: technology appraisals clinical guidance interventional procedures What is NICE clinical...

Time limits for bringing a judicial review claim On receipt of a judicial review claim form, a public body should first carefully assess whether it has in fact been brought within time. For more detailed guidance, see Practice Note: Judicial review—time limits and the pre-action protocol. Different time limits apply for particular categories of judicial review claim: Challenges to an Upper Tribunal decision must be filed within 16 days of the Tribunal’s decision notice being sent Public procurement claims must be issued within 30 days of when a claimant knew, or ought to have known, of the alleged breach of the public procurement rules The Administrative Court Judicial Review Guide, para 6.4.3.3, states: ‘ Where the claim concerns a decision under [ PA 2023], it must be commenced within the period specified by [ PA 2023, s 106]: 30 days from the date when the claimant first knew or ought to...

General rule on costs in judicial review The default position on costs in judicial review, as in other litigation, is that costs follow the event. That said, parties may apply for pre-emptive costs orders. The costs of, and incidental to, all proceedings in the High Court are within the court’s discretion. By statute, the High Court has discretion to award costs on a judicial review application. Taking into account every relevant circumstance, including the overriding objective, the court may make a costs decision that departs from the default rule. The scope of the court’s discretion includes: whether one party must pay another’s costs the quantum of those costs the timing of payment Ordinarily, costs follow the event unless, on the particular facts, the court considers that a different order on costs, such as a pre-emptive costs order, should be made, for example to enable the claimant to continue the case. An...

There is no single, catch-all answer to whether a given organisation is, in law, a public authority. Instead, the courts have built up case law identifying which entities fall within administrative law through the judicial review route; and Parliament, for its part, has variously specified the public bodies it intends to cover for particular statutes, including the Human Rights Act 1998 ( HRA 1998) and the Freedom of Information Act 2000 ( FIA 2000). Judicial review Judicial review is the principal court process by which individuals and businesses can obtain a remedy for abuses of power by public authorities. It is a public law remedy, concerned solely with policing the exercise of powers of a public nature. Most judicial review claims target those plainly engaged in public power: ministers, government departments and agencies, devolved administrations and legislatures, local authorities, health and education...