Public Sector Update - October 2011
Monday 17th October 2011
Planning
Lessons learned from Dale Farm
The drawn-out eviction of the Travellers who have occupied a site at Dale Farm in Essex illegally since 2001 seems to be coming to a close. The council has been trying to evict some of the Travellers from the site near Basildon because, although they own the land, they did not have planning permission to build their homes. On 3 October 2011 a judge ruled that Basildon District Council could remove caravans from 49 out of 54 plots at the Dale Farm Travellers' site once a number of outstanding legal issues has been resolved.
There was no dispute that the enforcement notices were valid and all remedies available to the residents by way of planning control had been exhausted. The legal challenge centred on the enforcement notices not being sufficiently clear in terms of what the Council could enforce. One local resident is reported to have said: "I saw three mistakes in their eviction notice and I'm not even a lawyer".
The complications arose as it appeared that the Council was intending to remove works that were not specifically identified in the notice, such as walls and fences. Arguments had also been raised as to whether the Council could require the removal of buildings that had subsequently been constructed on the unlawful hardstandings. The judge said the residents feared that the council would move onto the site and demolish and/or remove all the hard standing, apart from those on six of the plots and a section of road, and all the buildings, walls, fences and gates “whether or not such extensive measures are justified by the terms of the enforcement notices”. Furthermore, the Council refused to explain, on a plot by plot basis, exactly what it proposed to do. It was feared that the Council was planning "to go well beyond the steps that the enforcement notices entitle it to take.” These delays in the enforcement proceedings might have been avoided had the Council been more precise in specifying the works that they intended to carry out to enforce the requirements of the notices and ensuring that they fell squarely within the scope of the notices.
As opposed to taking direct action to enforce the eviction notices, Basildon Council could have alternatively sought an injunction against the residents of Dale Farm to comply with the requirements of the notices. If the residents breached the terms of the judge's order to leave their pitches they would have faced all the sanctions that follow from failure to comply with an injunction. This option would perhaps have been less confrontational and may well have resolved the situation earlier.
There are also three judicial review applications to stop the clearance of the site, and it remains to be seen if any other lessons will be learned.
Employment
High Court challenge to Government cuts rejectedSavings are being sought across the public sector as the Government endeavours to reduce the budget deficit. This article focuses on a recent, unsuccessful challenge by the Public and Commercial Services Union ("PCS") and Prison Officers Association ("POA") to one strand of these wide-ranging cuts, a reduction in redundancy and early retirement payments available under the Civil Service Compensation Scheme ("CSCS").
In late 2010, the removal of the unions' veto to changes to the CSCS paved the way for reforms to a system described by Francis Maude as "hugely out of kilter with the statutory redundancy scheme and comparable arrangements in the wider public and private sectors". Days later a revised scheme, which caps voluntary and compulsory redundancy payments, was implemented.
Members of the PCS and POA rejected these reforms and the unions launched judicial review proceedings to challenge the implementation of the new regime. The unions argued that the Government, by changing the compensation benefits that their members had expected to receive, had interfered with their members' "possessions", which is unlawful under the European Convention on Human Rights.
While the High Court agreed that the Government had interfered with the union members' possessions, it decided that this was justified and rejected the challenge. It concluded that the interference did not go beyond what was "reasonably necessary" to achieve the legitimate aim of reducing the national deficit.
Subject to any appeal against the decision, it appears that the reforms to the CSCS, which may affect more than half a million Civil Servants, are here to stay. It has been estimated that leavers can expect, on average, to receive only 58% of what they would have received under the old system.
The decision also has implications beyond this particular policy. It shows that, in principle, the Government's cuts, where they interfere with the benefits public sector employees expect to receive, are open to challenge on human rights grounds. On this occasion, the reduction in benefits was seen as "reasonable and commensurate", but it is possible that, in a more extreme case, courts may conclude that the interference is not justified.
Such a challenge will never be easy. The court's reluctance to scrutinise economic policies or to interfere with the Government's assessment of spending priorities was evident in this case. The outcome of legal action of this kind will always be uncertain, and unions may take the view that industrial action is a more effective way of influencing policy.
It is nevertheless clear that this will not be the last time Government changes to the employment rights of public sector employees are subject to judicial review. Later this month the High Court is expected to consider a union challenge to changes to the index-linking of public sector pensions. The controversy over the spending cuts is set to continue, both inside and outside the courts.
Public and Commercial Services Union and others v Minister for the Civil Service [2011] EWHC 2041 (QB)
Construction
A Guide to the new JCT Public Sector SupplementOver 40% of UK construction industry expenditure is attributable to the public sector, and so JCT’s decision to release a supplement specifically for the UK’s largest construction customer, the first of its kind, seems a rather natural expansion of the suite of contracts.
The supplement provides public sector Employers and their Contract Administrators with a user-friendly set of guidelines and suggested amendments, which are designed to operate in line with the Government’s construction strategy. While NEC has tended to find favour with previous strategies, the new supplement allows Employers (and their advisers), who may be more accustomed to the widely-used JCT standard forms, to contract on familiar terms and simultaneously meet government objectives.
- Part 1 provides an overview of the structure and each of the incorporated issues;
- Part 2 outlines the Fair Payment Requirements;
- Part 3 is a note on incorporation. This provides two options - namely the direct amendment of the contract terms or by annexing the suggested modifications to the contract;
- Part 4 provides suggested modifications for JCT Main Contracts; and
- Part 5 provides similar modified clauses for JCT Sub-Contracts.
- The Government’s Fair Payment Charter;
- Transparency and Freedom of Information; and
- Building Information Modelling.
The essential requirement is that there is a payment period not exceeding 30 days between the valuation date and the Final Date for Payment, and this extends to every "Tier" in the contractual chain.
The supplement also specifies that the valuation date shall be identical across all Tiers, although the Final Date for Payment at each Tier is staggered. Assuming that the valuation date is 7 days prior to the Due Date, as is the case under all JCT Main Contracts, this has the following effect:
- Tier 1 (Main Contract): Payment required within 14 days of the Due Date;
- Tier 2 (Sub-Contracts): Payment required within 19 days of the Due Date; and
- Tier 3 (Sub-subcontracts): Payment required within 23 days of the Due Date.
- The Common Valuation Date;
- The Due Dates required under all sub-contracts; and
- An obligation on Contractors to inform Sub-Contractors of the payment Regime prior to entering any relevant sub-contract, which extends down the contract chain.
The Supplement introduces a standard clause into Main Contracts only, authorising disclosures by the Employer in accordance with the Freedom of Information Act and the government’s transparency policy. The clause requires the Contractor to be notified promptly of any requests made under the Act.
Part 1 advises parties to identify pieces of “commercially sensitive” information at the tendering stage.
Building Information Modelling
BIM protocols promote consistent generation of building data and collaborative working. These principles have largely been integrated into JCT contracts already, and so the Supplement suggests only minor modifications. In the Main Contract, it suggests inclusion of any BIM protocol either in the definition of "Contractor’s Proposals" or in the body of Employer’s Requirements. In Sub-contracts, any BIM protocols may be included in the Contractor’s Requirements or in a Numbered Document.
Property
Exclusive Sale to Tesco Section 123 CompliantThe High Court has recently ruled on the extent of a local authority's duty under section 123 of the Local Government Act 1972 not to sell land for an amount "less than the best that can reasonably be obtained."
Tesco owned land in the middle of a larger site owned by Salford City Council. Tesco wanted to buy the Council's land for the development of a large supermarket. The Council decided not to put the site up for sale on the open market - rather they sought an independent valuation and proceeded to deal exclusively with Tesco.
Salford Estates Limited ("SEL"), owners of a nearby retail development, sought permission to apply for judicial review of the Council's decision to sell the land to Tesco. SEL alleged that the Council had breached s.123 Local Government Act 1972 by failing to have, or to have any sufficient, awareness of the full scope of its duty under s.123 to not dispose of land for an amount less than the best that could be reasonably obtained. The Council had given no proper consideration to offering the site for sale on the open market.
The Court decided that section 123 imposed a duty to achieve the best price reasonably obtainable and it was not a duty to conduct a particular process. Whilst the Court recognised that there was no particular prescribed route to achieving the best price reasonably obtainable, there might be circumstances where an actual sale on the open market was the only way to achieve it rather than one particular sale at a price according to an independent valuation. An example would be when there were no available comparables. However, here the Council had acted rationally in appointing expert valuers to advise it on the sale process and price.
The Court also went on to comment that if it was clear that the local authority had the s.123 duty in mind in reaching its decision to sell, it was not necessary to be stated explicitly. The question was one of substance and not of form.
When discharging their duty under s123 of the Local Government Act 1972, local authorities and the Homes and Communities Agency are not, as a result of the Court's decision, bound to a certain process. They can take into account relevant factors and decide how to achieve the best possible price for their land.
Education
Anti-bullying - what action can schools take?The Department for Education has recently published revised guidance to ensure teachers have appropriate powers to address poor behaviour, including bullying. Schools have a duty to put in place measures (including disciplinary penalties) to promote good behaviour, and prevent all forms of bullying between pupils. Punishments must be reasonable (e.g. proportionate, age appropriate, and take into account special needs or disability), made by a paid member of staff (or authorised by the Head), imposed when the pupil is under the charge of the member of staff, and not breach other legislation, such as equality law.
Subject to certain rules, disciplinary measures include the power to put pupils under 18 in detention, and to confiscate, retain or dispose of a pupil's property. School staff can search for items banned under the school rules if the pupil agrees, taking account of the ability of the pupil to give informed consent. At present, searches without consent can only be undertaken where there are "reasonable grounds" for suspecting that a pupil may have weapons, alcohol, illegal drugs or stolen items. It is anticipated that these powers will be extended when the Education Bill comes into force. Further, when in charge of a pupil, school staff have the legal power to use "reasonable" force in a number of scenarios, including preventing injury to another pupil. Schools should have regard to the new guidance on Screening, Searching and Confiscation, and the Use of Reasonable Force.
In dealing with bullying, schools must also consider whether there is reasonable cause to suspect a child may suffer significant harm. If so, the issue must be handled as a child protection concern in line with the school's safeguarding policy. As part of this, the school should consider both whether the pupil experiencing bullying requires support, and whether the underlying causes of the bullying reveal concerns for the safety of the bully.
In terms of addressing bullying, the government guidance emphasises the importance of a consistent whole school approach, including monitoring incidents and evaluating the effectiveness of strategies, as well as the proactive development of preventative strategies. It advises addressing issues that may provoke conflict, including talking openly to pupils about issues of difference, such as in cultural or family situations, for example through class work and assemblies. Schools could also consider using tailored bullying logs, to analyse when and where incidents occur and identify and address patterns that emerge.
The power to discipline extends to behaviour outside school, to the extent that it is reasonable to regulate the pupil's conduct at that time. This is particularly relevant to cyber-bullying e.g. through the use of social networking sites, which by its nature may occur outside school. The Behaviour Policy should set out what action the school will take in relation to all poor behaviour and bullying that occurs off school premises, including the punishments that will be imposed. By law this policy must be clearly communicated to all staff, parents and pupils at least once a year. Schools should also ensure that related policies (e.g. Anti-Bullying, Discipline and Acceptable Use of ICT) are kept under review.
It is important that the policies consistently and clearly identify the standards of behaviour expected of pupils, and the disciplinary sanctions that will apply where these standards are not met. Heads should check that the policies appropriately provide for the use of disciplinary powers by staff, and take into account the revised guidance. Heads may want to consider including guidance on the use of particular powers, and whether further training on such issues would be helpful.
Personal Injury
Tree branch deaths and the duty on local authoritiesWith the weather turning autumnal, two cases below involving trees become particularly relevant.
Micklewright v Surrey County Council [2011] EWCA Civ 922 (28 July 2011)
The tree in question stood adjacent to the highway and the claimant's husband had legally parked his car beneath its overhang. He was killed when a branch, which weighed almost a ton, broke away from the trunk and struck him. The local authority accepted that it did not have in place a proper system for inspecting the trees bordering its highways and there were no written records. Also, before an investigation had been carried out, local authority employees had sawn up the branch and disposed of most of it. The trial judge directed himself that the claimant had been disadvantaged by the disposal of the branch and he was therefore required to evaluate her evidence "benevolently" and the local authority's "critically". He found that extensive internal decay was a major factor in the branch's failure, but that even if the defendant had inspected the branch the extent of the decay would not have been evident. The claim was dismissed and the claimant appealed.
The Court of Appeal agreed that there has been a breach of duty but could not interfere with the factual finding by the judge in the first instance, that the branch showed no external signs of decay. Accordingly the appeal was dismissed.
Harry Bowen & Others v The National Trust [2011] EWHC 1992 (QB) (27 July 2011)
Whilst on an orienteering event, a group of children took shelter from the rain under a 160-year-old beech tree. A branch, weighing almost two tonnes, fractured and fell on the children, killing one and seriously injuring three others. The National Trust accepted that it owed the children a common law duty of care but denied that they were negligent in carrying out that duty of care.
The National Trust was not liable in negligence or in breach of its duty of care as its tree inspectors had exercised all the care expected of reasonably competent persons doing their job in undertaking a risk assessment of the tree. The defendant had given the tree inspectors adequate training and instruction on how to complete the risk assessment of the tree. To place further requirements on the defendant would mean the defendant had to do more than was reasonable to see that the children enjoying the use of this wood were reasonably safe to do so.
Comment
As local authorities are obliged to manage their ever-scarcer resources, the ability to adequately inspect trees within their control becomes more challenging. These cases however show that with documented risk assessments by trained inspectors it is possible to successfully defend claims arising from falling tree branches. There is no absolute liability for damages caused by highway trees, despite any sympathy the court may feel for Claimant's.
Property Litigation
A New Mandatory Power of Possession for Anti-social Behaviour?As anyone involved in residential tenancies will know, obtaining an outright possession order even in cases where there is serious nuisance behaviour can be difficult. This can often mean anti-social tenants and their families can continue to remain in their home for many months or longer, causing distress to neighbours. The longer the anti-social behaviour goes on, the less faith neighbours have in the landlord's ability to tackle the problem and in the wider Court system.
Over recent months, the Government has launched a consultation aimed at tackling this problem. They are proposing a mandatory ground of possession which would be available in cases where serious housing-related anti-social behaviour has already been proved by another court. The "triggers" for seeking possession under the proposed mandatory power are yet to be defined but the consultation describes them broadly as:
- A conviction for a serious housing related case;
- Breach of an injunction for anti-social behaviour; and
- Closure of premises under a Closure Order.
The initial consultation was further amended following the riots, with the Government proposing an amendment to the existing discretionary ground. If approved, the amended ground would allow the court to grant possession where a tenant or member of their household has been convicted of violence against property or persons at a scene of violent disorder or theft linked to violent disorder anywhere within the United Kingdom, as opposed to the current ground which is limited to nuisance behaviour within a "locality".
Although many landlords will no doubt welcome the possibility of a ground that would enable anti-social tenants to be evicted more quickly, whether the ground would actually result in swift evictions in the face of robust defences raising everything from proportionality and human rights to the Equality Act is questionable. It will be interesting to see what legislative changes will emerge as a result of these suggestions.
Do ensure that you take the opportunity to have your say - the consultation is open until 5 pm on 7 November 2011. Further information and details of how to respond the full consultation document can be found at: http://www.communities.gov.uk/documents/housing/pdf/1959275.pdf
Projects
Cabinet Office reduces time limit for bringing procurement proceedingsAs of 1 October 2011 changes have been implemented to the time limit within which procurement challenges may be brought, following confirmation by the Cabinet Office of the results of its consultation on implementing the Uniplex judgment (the "Consultation").
The position under the Public Contracts Regulations 2006 (the "Regulations") had previously been that proceedings to bring a challenge against a decision of a contracting authority for breach of the Regulations should be brought "promptly and in any event within three months from the date when grounds for bringing the proceedings first arose". The Uniplex judgment held that, amongst other things, the requirement to being proceedings "promptly" was imprecise and inconsistent with EU law.
Following the Consultation, the time limit to bring a procurement challenge under the public procurement rules is now 30 days from the date of knowledge, being the date on which the "economic operator first knew or ought to have known that grounds for starting the proceedings had arisen". The court then has discretion to extend this period up to a maximum of three months, where it "considers that there is a good reason to do so". A decision was made not to define "date of knowledge" as it was felt that this needed to be flexible in the event further case law on the application of the Uniplex principles needs to be taken into account in the future.
The changes are implemented by the Public Procurement (Miscellaneous Amendments) Regulations 2011 (the "2011 Regulations"), which came into force on 1 October 2011. The new time limit does not apply to proceedings where the date of knowledge is prior to 1 October 2011.
The Cabinet Office feels that the amendments will:
- Give the claimant sufficient time to assess the position and for alternatives to litigation to be explored;
- Prevent an aggrieved bidder from deliberately delaying starting proceedings;
- Avoid an anomaly with ineffectiveness time limits;
- Bring certainty and simplification to the process; and
- Comply with EU principles such as non-discrimination and effectiveness.
Further Amendments
As set out above, the main change introduced by 2011 Regulations is to the time limits within which a procurement challenge must be brought. Also, the 2011 Regulations amend the criteria where a contract will be automatically suspended when a procurement challenge has been brought. A contracting authority must now refrain from entering into a contract where:
- A claim form has been issued in respect of the decision to award the contract;
- The contracting authority is aware the claim form has been issued and the reason behind it; and
- The contract has not yet been entered into.
UK response to European Commission Public Procurement Consultation
In January 2011 the European Commission (the "Commission") published a Green Paper on the modernisation of the EU public procurement rules (the "Procurement Rules"). The UK Government has recently published its response to the Green Paper and a Procurement Policy Note on its strategy to influence the Commission's proposals for change.
UK's response
In general, the UK's response is supportive of the Commission's approach taken in the Green Paper. The Green Paper raised over one hundred specific questions. The UK's response emphasises its view that simplification of the Procurement Rules should be the main priority of the review. From the UK's specific responses to the questions, the UK's key messages to the Commission are that the priorities in the revision of EU procurement policy should be:
- A reduction in the length and cost of the procurement process;
- Increased flexibility to enable purchasers to follow best commercial practice to achieve the best possible procurement outcomes;
- A flexible approach towards allowing employees of mutuals and employee led organisations to be awarded a short term contract in order that they can gain experience of running public services prior to opening procurement to full and open competition, this is in line with the Government's "Open Services" White Paper published in July 2011;
- To introduce measures to improve small and medium enterprise access to the public procurement process, which should include alleviating obstacles that currently exist in the selection phase such as turnover requirements and the submission and verification of evidence; and
- Limiting the scope of the Procurement Rules, by substantially raising the thresholds and removing private utilities from the scope of the rules.
In addition, the Cabinet Office has published a PPN on its strategy to influence the Commission's proposals for change, which states that the UK government is aiming to:
- Engage with key strategic EU stakeholders to influence the early strategic direction of the EU review process towards radical simplification;
- Engage with other member states so as to understand their positions, build support for UK objectives and develop alliances in readiness for the negotiations on the Commission's proposals; and
- Involve ministers, senior officials and the wider public procurement community where possible.
