If money does actually make the world go round (as enthusiastically asserted by MC and Sally Bowles in the 1972 film Cabaret) then it is confidence that fuels it. For, as we have all been experiencing, just as confidence ebbs, so does the economic system slow down and stagnate. And banks that lose market confidence are likely to enter rapid meltdown as depositors run to withdraw their cash – as at Northern Rock.
But confidence can be a magic ingredient in the public sector too. And, in terms of legal powers, local authorities appeared to suffer a massive loss of confidence following the June 2009 judgment of the Court of Appeal in the LAML case (see Brent LBC v Risk Management Partners Ltd and London Authorities Mutual Ltd and Harrow London Borough Council as interested parties  EWCA Civ 490). As previously indicated (see  Gazette 10 September, 14), the court found that the local authorities in question could not lawfully participate in a mutual insurance company and that the well-being powers in part 1 of the Local Government Act 2000 would not in the circumstances assist.
While the Court of Appeal in LAML did take a rather traditional view of vires (no doubt partially in light of the evidence and other material before it), and this is currently envisaged to be tested by the Supreme Court on appeal in December 2010, well-being does remain a valuable and broad power in the meantime. The trick is to make sure it is used properly. This includes making appropriate reference to the power in the officer report submitted in respect of the proposed decision and identifying the specific outcomes that are proposed to promote or improve the relevant ingredient of well-being. It is also useful to identify which strands of well-being the activity or outcome is designed to promote or improve. In summary:But to return to the confidence issue – despite the continuing breadth of well-being (and the width of previous judicial interpretations) the LAML decision has certainly caused a crisis of vires confidence in many local authorities. It is for this reason that the Local Government Association (LGA) recently hosted a meeting of local government lawyers, and others with expertise in this area, with a view to producing a draft power of general competence as a legislative way forward.
- be mindful of the precise statutory width but also the statutory boundaries of well-being;
- with well-being, there needs to be ‘some reasonably well-defined outcome’ which is proposed to promote or improve the well-being in question;
- the proposal needs to be objectively reasonable in light of the fiduciary duty and all the circumstances, and also consistent with the statutory purpose of each of the powers relied on;
- make clear in the relevant report the precise powers to be relied on and how they are proposed to operate in the particular circumstances.
The Association of Council Secretaries and Solicitors (ACSeS – the professional organisation for chief and senior local government lawyers and other senior corporate government officers) was represented at the LGA meeting by ACSeS president Dr Mirza Ahmad and myself. Dr Ahmad said: ‘There is a pressing need – and the time is right – for local government to be given a general power of competence to achieve excellence for the public. All local and regional partnerships will demand – and benefit from – the greater clarity and certainty of powers that would flow from a general power of competence and help local governance to be fit for purpose for the 21st century.’
This meeting resulted in a Draft Local Government (Power of General Competence) Bill being presented to parliament by the LGA last week. With an introduction and explanatory notes to supplement the draft bill, the document is ‘published as a contribution to the debate about local democracy and the powers which councils need to innovate, and to meet the needs of local communities’.
But whatever happens, local authorities need the confidence to be able to make a positive difference locally without undue fear of being ruled out of court. As the LGA points out: ‘Legislating to create a power of general competence for local government would contribute to councils’ confidence in their powers to tackle in new ways the challenges their communities face.’
It is true that appropriate care in the lead up to, and taking of, local authority decisions should make successful challenge less likely. But if vires confidence continues to approach flatline across many local authorities, the proposed general competence power could be just the thing to return it to healthy zigzag.
Homelessness determinations not a ‘civil right’ Article 6 of the European Convention on Human Rights (right to a fair trial) provides, among other things, that in the determination of a person’s civil rights and obligations... everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. So far, so fine.
But like most pieces of law this immediately raises more questions than it answers. For instance, what is a ‘civil right’ for these purposes? Also, to what extent will judicial review (which determines decision lawfulness on the basis of facts already found) amount to a conformably fair hearing? And where do local authority homelessness decisions stand in all this? On 17 February the Supreme Court tackled these issues head on in Tomlinson and others v Birmingham City Council  UKSC 8. Lord Hope (with whom Lady Hale and Lord Brown agreed) gave the leading judgment.
Part VII of the Housing Act 1996 contains local authority homelessness responsibilities. The primary duty (in section 193(2)) is to ensure that accommodation is available for a homeless applicant. This applies (per section 193(1)) where the authority is satisfied that the applicant is homeless, has a priority need, is eligible for assistance and where the authority is not satisfied that the applicant became homeless intentionally. However, under section 193(5), this duty does not apply where the applicant, having been informed by the authority both of the possible consequences of refusal of an accommodation offer and of the right to request a review of the suitability of the accommodation, refuses an offer of accommodation which the authority is satisfied is suitable for him. In addition, the applicant needs to have been notified by the authority that it thereby regards itself as having discharged its duty. The issue in the instant case had been whether some applicants did in fact receive the section 193(5) letters which the council contended it had sent.
As Lord Hope in the Supreme Court pointed out, the jurisdiction exercised by the county court under the statutory appeals process (see section 204(1) of the 1996 act) is one of judicial review. For there ‘... is no general right of appeal against the decision of the reviewing officer’. And the ‘county court judge may not make fresh findings of fact’ but ‘must accept the conclusions on credibility that have been reached by the reviewing officer’. Consequently, the appellants contended that where simple questions of fact are in issue, the court must exercise a full fact-finding jurisdiction if the requirements of article 6(1) are to be satisfied. They argued that the decisions of the reviewing officers should be remitted to the county court for consideration on their merits, or that it be declared that section 204(1) of the 1996 act is incompatible with the appellants’ rights under that article.
The issuesLord Hope identified two key issues:As to the first issue, in light of an examination of convention and other case law, the court found that there was no determination of a ‘civil right’ in these circumstances. As Lord Hope indicated, cases such as the present, that is the right to accommodation under section 193 of the 1996 act: ‘... where the award of services or benefits in kind is not an individual right of which the applicant can consider himself the holder, but is dependent upon a series of evaluative judgements by the provider as to whether the statutory criteria are satisfied and how the need for it ought to be met, do not engage article 6(1).’
- Does a section 204 appeal involve the determination of a ‘civil right’ for the purposes of article 6(1), either generally or in cases such as the present ones where the issue is simply one of fact?
- If so, does article 6(1) require that the court hearing such an appeal must have a full fact-finding jurisdiction so that it can determine for itself a dispute of fact, either generally or in cases such as these?
And in respect of the ‘full fact-finding jurisdiction’ point, Lord Hope applied the decision of the House of Lords in Runa Begum v Tower Hamlets London Borough Council  UKHL 5, and held that the absence of a full fact-finding jurisdiction in the court to which an appeal lies under section 204 does not deprive it of what it needs to satisfy the requirements of article 6(1).
CommentIn making this decision the Supreme Court has laid to rest a legal issue that has been festering for some time. In Runa Begum, Lord Hoffmann had observed that ‘parliament is entitled to take the view that it is not in the public interest that an excessive proportion of the funds available for a welfare scheme should be consumed in administration and legal disputes’. Lord Hope referred to this in the introduction to his judgment and said that since ‘concerns about over-judicialisation of dispute procedures in the administration of social and welfare benefits have not gone away...this case provides us with an opportunity to introduce a greater degree of certainty into this area of public law’.
Following this judgment, those within local authorities charged with taking difficult decisions in applying very limited resources to an unrelenting and seemingly infinite torrent of demand will undoubtedly be relieved that at least one layer of legal complexity has been removed from the task in hand.
Nicholas Dobson is a lawyer specialising in local and public law. He is also communications officer for the Association of Council Secretaries and Solicitors