Councillor Disqualification

Written by freethslocalgovernment on December 5, 2017

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In that business killer thriller called The Apprentice (yielding at least one casualty a week), when the Grand Panjandrum wants someone out, he just has to point a finger and say ‘You’re Fired!’ ‘Done-for’ hopefuls then meekly oblige and trundle off.    But not so easy with elected authority members. For their capacity to hold and remain in office is regulated by statute and has been for well over a century.  So under section 46 of the Local Government Act 1894, a person   was disqualified for being a member of a district council if he or she held any paid office under the council. And under section 59 (1) (a ) of the Local Government Act 1933 a person was disqualified from being elected or being a member of a local authority if they held any paid office in the gift or  disposal of the local authority or any of its committees.

However, with the increased complexity in both function and form of modern local government, the current provisions have been considerably extended. So (for present purposes) under section 80 of the Local Government Act 1972 councillors (or prospective councillors) are disqualified if within five   years before or since election they have been convicted of an offence and imprisoned ‘for a period of not less than three months without the option of   a fine’. Other specified disqualification conditions also apply, including employment by the authority or authorities in question, bankruptcy and   disqualification under Part III of the Representation of the People Act 1983 (Legal Proceedings).    Similar provisions affect elected mayors of combined authorities (under paragraph 9 of schedule 5B to the Local Democracy, Economic Development and Construction Act 2009) and London Mayors or Assembly members under section 21 of the Greater London Authority Act 1999.

OK so far the provisions go. But what about those members who are on the sex offenders’ register (i.e. subject to notification requirements under Part 2 of the Sexual Offences Act 2003), e.g. following a caution, fine or   conditional discharge) or subject to Sexual Harm Prevention or Notification   Orders? And what of those subject to court-imposed anti-social behaviour   sanctions e.g. Civil Injunctions (under section 1 of the Anti-social Behaviour, Crime and Policing Act 2014) or Criminal Behaviour Orders (under section 22 of the Anti-social Behaviour, Crime and Policing Act 2014)? For as the Paper indicates ‘Anti-social behaviour blights people’s lives and can   leave victims feeling powerless’.    Should these sex offender and anti-social behaviour sanctions (not meeting the current three month imprisonment criteria) also disqualify those standing for election or holding office as a local authority member, combined authority mayor or, London Mayor or London Assembly member?    That’s what the Government wants to know. For in September 2017 the Department for Communities and Local Government (DCLG) issued a Consultation Paper entitled:  Disqualification Criteria for Councillors and Mayors   (available on the www.gov.uk   site). This seeks answers to various questions (see below) to which responses are sought by Friday 8 December 2017.

Trust

As the Government acknowledges, the issue is all about public trust in local government. Councillors ‘take strategic decisions that affect all our lives’, ’decide how best to use taxpayers’ money and manage local authority   resources. . .’.They also have a leading role ‘in building and preserving a   society where the rights and freedoms of individuals are respected’.  It is consequently vital that they who ‘should be community champions’ ‘have the trust of the electorate’.    The Government therefore considers ‘that there should be consequences where councillors, mayors and London Assembly members fall short of the behaviour expected of anyone in a free, inclusive and tolerant society that respects individuals and society generally, and where this has led to enforcement action against an individual.’    The issues canvassed in the Consultation are indeed relevant since public trust in local democracy is clearly at risk where its elected member custodians fall well below the behaviour that electors could reasonably expect. But since the Localism Act 2011, the sanctions available to English (but not   Welsh) local authorities for breach of their codes of conduct have been considerably diluted. Before then, sanctions available for English authority members in breach included suspension and disqualification. Nevertheless, although abolished in England, these provisions continue in Wales.    So, as Hickinbottom J pointed out in Heesom v. Public Services Ombudsman for Wales [2014] EWHC 1504 (Admin): ‘in England, a councillor cannot be disqualified unless he is (i) in the paid employment of the authority (s 80(1)(a) of the 1972 Act . . .); (ii) convicted of any offence and sentenced to imprisonment for at least three months (s 80(1)(b) of the 1972 Act. . .)   or (iii) convicted of an offence under s 34(1) of the 2011 Act [offences regarding failing to disclose a disclosable pecuniary interest or having such an interest participating in a discussion or vote] and thereafter made the   subject of a disqualification order by the magistrates.’    Therefore, per Hickinbottom J: ‘upon the abolition of these sanctions and outside the categories . . .described above, a councillor in England can no   longer be disqualified or suspended, sanctions being limited to (for example) a formal finding that he has breached the code, formal censure, press or other appropriate publicity, and removal by the authority from executive and committee roles (and then subject to statutory and constitutional requirements).’    The Committee for Standards in Public Life (CSPL) has expressed concern about this. So in its 2013 Report, Standards Matter it said that: ‘The new, slimmed down arrangements have yet to prove themselves sufficient for their purpose. We have considerable doubt that they will succeed in doing so and intend to monitor the situation closely’. CSPL is therefore intending during 2017/2018 to undertake a review of local government standards based around a consultation to be launched in early 2018. But that is for the future and those who expect any change to result (rapidly or at all) may be at the more optimistic end of the spectrum.

Consultation Questions    So to focus on current ‘known knowns’, at this point we have the present consultation around the Local Government Act 1972 disqualification criteria. The Government takes the view that anyone subject to sexual offender notification   requirements or anti-social behaviour sanctions should be barred from holding elected local office during the subsistence of those requirements or sanctions. However, the ‘Government does not propose including another type of civil order, the Sexual Risk Order, as this person would not have been convicted or cautioned of a sexual offence under the Sexual Offences Act 2003 and are not subject to notification requirements for registered sex   offenders’.    As to anti-social behaviour the Paper contains a useful table summarising the different sanctions available to the courts, the police and to councils, police and social landlords.    The six questions posed in the Consultation (see page 16 of the Paper) ask whether respondents agree that those subject to sexual notification requirements should be disqualified from holding or seeking office but that those subject to Sexual Risk Orders should not.    On anti-social behaviour, consultees are asked whether they agree that those issued with a Civil Injunction or a Criminal Behaviour Order should be disqualified as indicated above and whether these should be the only anti-social behaviour-related reasons why an individual should be barred.    Respondents are also asked whether the proposals will have an effect on local authorities discharging their Public Sector Equality Duties under the   Equality Act 2010 and whether they have any further views about the proposals. The e-mail address for responses is: Section80consultation@communities.gsi.gov.uk to be received as indicated by 8 December 2017.    Life is clearly hectic and there’s always a host of things pressing for attention. However, the Paper does give an opportunity for practitioners to give Government the benefit of their experience before it legislates. An opportunity therefore well worth taking.

N.B. This article was first published online in the Law Society Gazette.

Nicholas Dobson H&S small

Nicholas Dobson
Consultant
+44(0)845 017 7620
nicholas.dobson@freeths.co.uk

 

 

Perinatal Institute v Healthcare Quality Improvement Partnership: Technology and Construction Court provides important judgment on application of the Public Contracts Regulations 2015

Written by freethslocalgovernment on August 23, 2017

 

The dispute between Perinatal Institute (“PI”) and Healthcare Quality Improvement Partnership (“HQIP”) has taken a further twist in a recent Technology and Construction Court decision (Perinatal Institute v Healthcare Quality Improvement Partnership [2017] EWHC 1867 (TCC)). Mrs Justice Jefford allowed PI’s application to amend their original claim, but then struck out the original claim. This leaves the unusual position that PI’s claim against HQIP survives as an amendment to a partially struck out claim.

Background

HQIP is an independent organisation with the function of increasing the impact of clinical audit on healthcare quality improvement. They were assigned the task by the Department of Health of commissioning a project with the goal of reducing perinatal deaths. In order to enable data collection and analysis, HQIP issued an ITT on 29 March 2016.

PI and Oxford University’s National Perinatal Epidemiology Unit (“NPEU”) submitted tenders, and NPEU’s bid was successful. PI challenged the decision awarding the contract to NPEU on the basis that the evaluation or preference of NPEU’s bid was unlawful or irrational, due to HQIP misdirecting itself on a point of law. Following a temporary stay of the contract, HQIP successfully applied to lift the stay and the contract with NPEU was entered into on 21 December 2016.

PI’s application to amend the original claim

The ITT had specified that a data analysis tool must be ready to be implemented immediately. PI learned in early 2017 that NPEU’s tool was not expected to be in operation until late 2017, and remained in the development phase. On this basis, PI argued that the contract and / or specification had been amended in breach of Regulation 72 of the Public Contracts Regulations 2015 (SI 2015/102) (“PCC”).

Rather than issuing fresh proceedings, PI applied to amend the existing claim on the grounds of “convenience”. In defence, HQIP sought to persuade the Court that the amendment was time barred under Regulation 92 PCC.

Regulation 92 provides that “proceedings must be started within 30 days beginning with the date when the economic operator first knew or ought to have known that grounds for starting the proceedings had arisen”. The Court retains discretion to extend this time period, and substitute the 30 days period for 3 months. PI contended that the first date on which it knew or ought to have known that such grounds existed was 13 March 2017, and therefore PI must have started proceedings within 30 days of this date.

Mrs Justice Jefford found that an application to amend did not amount to “starting proceedings” and as a result PI had not brought proceedings within the statutory 30 day period. However, the present hearing fell within the 3 month discretionary period, and if the Court were to exercise their discretion to the maximum extent available, the “time barred” defence would not be open to HQIP. She accepted on the evidence before her that the earliest date on which PI became aware of grounds for starting proceedings was 13 March 2017, and exercising the fullest extent of her discretion under Regulation 92 found that PI’s application to amend be allowed.

HQIP’s application to strike out the original claim

Due to the order in which the applications were issued and the perceived unfairness of dealing with HQIP’s application prior to PI’s, the application to strike out the original claim was dealt with following consideration of PI’s application to amend the claim.

PI made no claim for damages and during earlier hearings, contended that it had suffered no monetary losses for which it could be compensated . HQIP, relying upon Regulation 98 PCC, argued that there was accordingly no remedy which the Court could grant (including declaratory remedies). Given this fact and the consequent use of the Court’s resources, HQIP asserted that PI’s claim was therefore an abuse of process.

Mrs Justice Jefford accepted HQIP’s arguments as to the restrictive nature of Regulation 98, finding that as a result “PI had no available remedy in respect of the Original Claim”. As a result, it was ordered that that those parts of the Particulars of Claim which are not material to the amended claim be struck out.

Practical points

This judgment highlights the restrictive nature of Regulation 98 PCC. In cases where the contract has been entered into and no grounds for ineffectiveness apply (under Regulation 99), the Court is limited in awarding only damages “to an economic operator which has suffered loss or damage as a consequence of [a] breach”. This is expected to be of particular interest to not-for-profit organisations, who must now consider carefully their approach to remedies where the relevant contract has already been entered into.

The judgment in relation to whether PI’s application to amend had been brought in time is highly fact-specific, and does not set any hard and fast rules. Even though PI was successful in this application, a cautionary approach is to be preferred and a fresh Claim Form should be issued if the 30 day period under Regulation 92 is close to expiring.

If you or your clients require further advice on this issue, please contact Stephen Pearson on 0845 274 6900 or at stephen.pearson@freeths.co.uk.

Stephen Pearson Partner stephen.pearson@freeths.co.uk +44(0845) 274 6900
Stephen Pearson
Partner
stephen.pearson@freeths.co.uk
+44(0845) 274 6900

 

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Purdah – when does it not apply?

Written by freethslocalgovernment on May 16, 2017

 

Once again, in these uncertain times, what we thought we knew isn’t so certain….

The High Court has recently clarified, in R (on the application of ClientEarth) v Secretary of State for the Environment, Food and Rural Affairs[1], the extent to which the Government and Local Authorities are bound to observe purdah in the run-up to elections, considering what constitutes an exceptional policy to which purdah applies.  This case will be of particular significance to ministers and public servants during the final weeks in the run up to the general election on Thursday 8th June 2017.

What is purdah?

Purdah is a custom in British politics, intended to deter ministers, public servants, officials and councillors from engaging in potentially controversial decisions in the weeks immediately preceding elections.  It is aimed at preventing any ’inside’ interference in the election process; for example, the unveiling of favourable policies by the incumbent party to boost their popularity.  Purdah is a convention rather than a principle of law, and therefore does not bind the Courts in their decision-making.

Background

The ClientEarth case concerned the Air Quality Directive 2008/50/EC and its implementing domestic legislation, the Air Quality Standards Regulations 2010.  These pieces of legislation impose an obligation on the Government to provide an Air Quality Plan (“AQP”) to reduce nitrogen dioxide (“NO2”) emissions.  ClientEarth, an activist environmental law organisation, had previously challenged the Government on the content of their draft AQP.  The challenge was successful and the Supreme Court ordered the Government to revise and re-publish their draft AQP no later than 4:00pm on 24th April 2017.

Case facts

On 18th April 2017, the Government announced a snap election which was approved in the House of Commons the following day.  Purdah was subsequently invoked, with Cabinet Office guidance providing that “it is customary for Ministers to observe discretion in initiating any new action of a continuing or long term character”.  The Government applied to the High Court for a time extension for publishing the draft AQP on the basis that the accompanying public consultation would be negatively affected by purdah.

The Government’s main contentions were that: (1) the draft AQP would risk influencing the local and general elections; (2) the elections would undermine the effectiveness of the public consultation and (3) it would be unreasonable to bind the incoming government with a draft AQP and partially completed consultation process.

These arguments were accepted by the Court in relation to the local elections due to the “role local authorities would play in reducing NO2 emissions”.  The deadline for publishing the draft AQP was moved back to the day following the local elections to provide Local Authorities with the opportunity to devote their full attention to the consultation.  However, the Court refused to extend the deadline further to accommodate the purdah period for the general election.

The Court found that this was an “exceptional” policy whereby the convention of purdah did not apply during the prelude to the general election.  Despite attaching modest weight to the Government’s arguments, the Court found that a further delay would present a significant threat to public health given the fatal effects of NO2 emissions.  The Court also emphasised that there was a positive duty on the Government to comply with the Directive and Regulations as quickly as practicably possible.

The Government published the draft AQP as ordered on 5th May 2017.

Practical points

This decision provides a helpful summary for Local Authorities on the law in this area.  However, the decision largely turned on its “exceptional” facts and it is unlikely that the case will lead in future to a more relaxed approach to the application of the purdah principle.

 

 

 

 

 

 

 

 

 

 

 



[1] The Queen on the Application of Clientearth v Secretary of State for Environment, Food and Rural Affairs [2017 WL 01831304]

Do Teckal companies have to comply with the Procurement Rules?

Written by freethslocalgovernment on May 5, 2017

This is the interesting question posed in a recent Lithuanian case involving a State railway company and its Tekal subsidiary.  We have yet to receive the CJEU’s judgement, but we do have the Advocate General’s opinion – this is not binding on the Court but is often followed.

The case concerned a Teckal arrangement between a State railway company and a wholly owned subsidiary (its Teckal company).  The subsidiary was responsible for the manufacturing and maintaining the trains operated by the State railway.  To do this it needed to procure the supply of metal products. The Teckal company procured these products using procedures that did not comply with the Procurement Rules.  The Opinion considered that the use of these procedures was unlawful and stated that, where subsidiaries do not have the resources needed to carry out the tasks assigned to them under their Teckal arrangement i.e. they need to procure works, services or supplies to do so, then the Teckal company must comply with the Procurement Rules in procuring those works, services or supplies.  Further, the Opinion also rejects the idea that a Teckal company, as a matter of logic, can be an entity established for a commercial or industrial purpose.

The rationale for imposing these requirements is that without them a loop hole is created that would allow a parent Contracting Authority (i.e. the State railway company here) to effectively procure supplies, works or services through its Teckal company without having to comply with the Procurement Rules.  This makes a lot of sense when you consider that the logic of permitting the Teckal exemption (enshrined in Regulation 12 Public Contracts Regulations 2015)  is that a Teckal company operates as if it were a department of its parent Contracting Authority.  Allowing it to procure without complying with the Procurement Rules would undermine the basis for allowing the Teckal exemption in the first place.  What this means is that Teckal subsidiaries that procure works, services or supplies from an entity other than their parent Contracting Authority (or other entity the Rules permit) must comply with the Procurement Rules.

We will keep an eye out for the Court’s judgment in this case to double-check that the EU Opinion has been followed and will let you know the outcome.

The full Opinion can be viewed by clicking here.

If you have any queries please do not hesitate to contact Nathan Holden, Partner in Local Government on 0845 077 9646 or nathan.holden@freeths.co.uk

Train station Waterloo, trains, rail, travel - EDITORAL USE ONLY

A “sufficiently serious” case? Assessing the Supreme Court’s decision in EnergySolutions v NDA

Written by freethslocalgovernment on April 24, 2017

Facts

EnergySolutions EU Ltd (now ATK Energy – “ATK”) unsuccessfully tendered for a contract to decommission 12 “Magnox” nuclear power stations managed by the Nuclear Decommissioning Authority (“NDA”). It was found (following a previous judgement) by the Court that ATK should have been awarded the contract and that the NDA made serious errors in their assessment of tenders which had led to its erroneous decision. ATK brought a public procurement claim against the NDA seeking damages for alleged breaches of the Public Procurement Directive ( 2004/18/EC) – the “Directive”) and the implementing legislation in the UK, the Public Contracts Regulations 2006 (the “Regulations”).

Shortly following the Supreme Court hearing, but before the decision was issued, we understand that the matter was settled by the parties at a reported cost of £100 million to the British taxpayer, allied to an early termination of the awarded contract. Both parties agreed to the judgement being issued, irrespective of their settlement.

The judgement

“Sufficiently serious” – the second Francovich condition

It is established that the three Francovich conditions (from an ECJ case) must be satisfied for State Liability to arise; namely that ;

(1) the rule of law infringed must be intended to confer rights on individuals,

(2) the breach must be sufficiently serious, and

(3) there must be a direct causal link between the breach of the obligation and the damage sustained by the injured party.

The present case considered the breaches by the NDA of the Directive in light of these three conditions, with the Court’s assessment of the second condition of particular significance to practitioners.

ATK had argued that UK legislation had gone further than required by EU law by making damages an automatic remedy to a breach regardless of whether the breach was “sufficiently serious” or not. The Court rejected this argument, clarifying that there is a positive obligation on claimants to demonstrate that a breach is “sufficiently serious”.

This assessment reverses long-standing practice and is now expected to present a major hurdle to future claimants. The Supreme Court also did not provide guidance on what constitutes a “sufficiently serious” breach (aside from that which results in the incorrect award of a contract).

Failure to issue claim before contract is made

The Directive provides that there is to be a “standstill” or “Alcatel” period” of at least 10 days from the date on which a tenderer is informed they have been unsuccessful, during which the relevant contracting authority cannot enter into the contract with the successful tenderer. This provides unsuccessful tenderers with the opportunity to issue a court claim to prevent the contract being made.

The UK has also legislated, under the Refgulations that an unsuccessful tenderer has a separate period of 30 days from the notification that they have been unsuccessful in which to issue proceedings seeking a review of the contracting authority’s decision.

In this case, the NDA made the contract with the successful tenderer after the initial standstill period (voluntarily extended to 14 days by the NDA), but before the expiry of the 30 day period. ATK, despite being aware that the contract was to be made, did not issue their claim until after the initial standstill period. The NDA argued that as a result of this delay and with full knowledge of the likely consequences, ATK had failed to mitigate their losses. The Court rejected this argument, finding that tenderers “are not obliged to take advantage of the opportunity….to stop the wrongful award of a procurement contract to a competitor” (para 53) – ie: an operator is perfectly entitled to wait until the standstill period has expired before issuing their claim, whether for tactical reasons or otherwise.

Practical points

This judgement leaves considerable uncertainty for practitioners on what will constitute a “sufficiently” serious breach, and this is likely to be highly dependent on the facts of the particular case.

The decision also may make it more likely that contracting authorities will now take the “safe approach” and wait until the expiry of the 30 day limitation period before awarding the contract. This will make life a little easier for unsuccessful tenderers, and means that they can take decisions within the 30 day period without fear of reproach.

If you or your clients require further advice on this issue, please contact Stephen Pearson on 0845 274 6900 or at stephen.pearson@freeths.co.uk.

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The end of “parent power”?

Written by freethslocalgovernment on April 7, 2017

Summary

Mr Platt’s (“F”) seven year-old daughter (“D”) was a registered pupil at an Isle of Wight primary school. F sought to remove D from school, during term time, for a holiday to DisneyWorld, America. This holiday would cause D to be absent from school for seven days.

F initially made a formal request for the school’s permission to remove D. This was refused by the head teacher. Notwithstanding this refusal, F took D on the holiday. On his return, F was issued with a Fixed Penalty Notice by the Council’s Education Welfare Officer for “unauthorised family holiday during term time”.

F failed to pay the penalty notice and proceedings were issued in the Isle of Wight Magistrates’ Court on the basis that F was guilty of an offence under s.444(1) of the Education Act 1996 (“EA”). This section provides:

“If a child of compulsory school age who is a registered pupil at a school fails to attend regularly at the school, his parent is guilty of an offence”

The Magistrates, in their interpretation of the meaning “fails to attend regularly”, took into account D’s attendance outside of the offence dates (ie: the holiday absence) and found that overall, D had an attendance rate of 90.3%. This rate fell within the bounds of satisfactory school attendance. On this basis, the holiday absence did not cause D to fail to attend school regularly. The Magistrates found that there was accordingly no case for F to answer.

Subsequent appeals distilled the question before the Supreme Court to what is the meaning of “regularly” under s.444(1) of the EA. Lady Hale, giving the only judgment, found that “regularly” means “in accordance with the rules prescribed by the school”. In other words, the absence of a child from school requires permission from the school, and such permission will only be granted in exceptional circumstances, no matter how good the pupil’s attendance is. It could be said that the Court somewhat ducked the question of what the word “regularly” actually means in law ?

This judgment was clearly influenced heavily by public policy considerations. It is clear that the Court was worried about setting a precedent whereby children could be removed from school whenever it suited their parents. A decision in favour of F would be a “slap in the face of those obedient parents who do keep to the rules, whatever the cost or inconvenience to themselves”. Concerns about the disruptive effect of such removal on the child’s learning also swayed the Court.

Practical point

 Local authorities and Academies now have decisive legislative authority which supports their enforcement of Fixed Penalty Notices. Given its publicity and as we approach the holiday season, this case will likely serve as a deterrent to parents who remove their child/ren from school either without seeking permission from the school, or irrespective of permission being refused. This may therefore result in a dip in the number of Fixed Penalty Notices being issued by Local Authorities, at least in the short term.

 The Department of Education has already indicated that further guidance to Local Authorities on unauthorised absences is in the offing. Local Authorities will need to take into account this guidance in considering when to issue Fixed Penalty Notices in the future. On the other hand, schools will need to consider the guidance as part of their decision-making as to whether or not absences can lawfully be authorised.

If you wish to discuss this matter further, or would like practical advice on the effects of this judgment and the impending guidance, please contact Stephen Pearson on 0845 274 6900 or at stephen.pearson@freeths.co.uk.…

Local authorities/Disposal for best consideration – Whitstable Society v Canterbury City Council

Written by freethslocalgovernment on April 6, 2017

Summary

CCC owned some land that had had various uses over the years, including use by the public for walking and riding bicycles.  CCC had acquired the land on the understanding that it would be kept as open space but there were no covenants on the title nor any provisions stipulating the purposes for which CCC was acquiring the site.  A developer began discussions with CCC to develop the site.  A valuation report was produced and CCC later resolved to sell the site to the developer and a sale contract was exchanged.

Local community group W sought a review of CCC’s decision and issued proceedings to quash the sale contract on various grounds, including that CCC had not obtained best consideration because the valuation report was produced on the assumption that affordable housing requirements would be imposed in relation to the development, when in fact, by the time the report was considered, the position on affordable housing requirements had changed.

The court found that CCC had not obtained best consideration, but W’s application was refused on other grounds.

Practical point

Local authorities are under statutory obligations when it comes to disposing of land in relation to the price that is achieved, as well as obligations in relation to notification and advertising.  Valuation reports are only as good as the assumptions they are based on at the time they are produced.  In this case, the position had changed considerably in relation to affordable housing requirements as CCC’s own local plan requiring affordable housing had been delayed – CCC would have been aware of this and a reasonable authority would have re-enquired as to the position.

If you would like to read the case in detail please click on the following link: http://www.bailii.org/ew/cases/EWHC/Admin/2017/254.html

 

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Do actions speak louder than words?

Written by freethslocalgovernment on April 3, 2017

Guardian schemes are an increasingly popular way for property owners to protect vacant premises against squatters and vandalism. Management companies arrange for individuals to live in such properties as licensees. However, the recent case of Camelot Property Management Limited and Camelot Guardian Management Limited v Roynon [2017] is a reminder that when it comes to determining the basis of someone’s occupation of property, the situation ‘on the ground’ is just as important as what the agreement between the parties actually says.

Background

Bristol City Council own a disused former care home. They engaged the services of Camelot Property Management Limited, who placed ‘guardians’ in the property in order to secure it. One such guardian, Mr Roynon, occupied two specific rooms to which only he had access. He also had use of other facilities such as a communal kitchen and bathroom. Mr Roynon entered into a written agreement in January 2014 which stated that it created a licence and not a tenancy. However, when the management company served notice to quit upon Mr Roynon in May 2016, he refused to leave the property.

Law

When determining whether an agreement is a tenancy or a licence, a Court will look beyond whatever label the parties have put on a document and take into account the reality of the occupation. As outlined in last week’s Practical Property Guide blog, a tenancy grants “exclusive possession” of a property for a specified period of time (being a right to use a property to the exclusion of others), whilst a licence is simply a permission to do something on someone else’s property.

Decision

The Court found that the provisions of the agreement did not reflect the reality of Mr Roynon’s occupation ‘on the ground’. Whilst the agreement provided that the guardians would not be given designated rooms, Mr Roynon had exclusive possession of two rooms to which the other guardians at the property did not have access and would not enter without his permission.

The agreement also prohibited overnight guests, limited the number of guests to two at any one time (and provided that they must not be left unsupervised) and stated that any guests must be escorted off the property at the end of each visit. The Court felt that whilst these restrictions were onerous, they only restricted the way in which Mr Roynon could use his rooms. Such restrictions are a common feature of tenancies and so do not by themselves prevent exclusive possession. The absence of any power to move Mr Roynon between rooms as and when the Council required, was considered to be a significant factor in indicating that there was a tenancy and not a licence. The Court found that these specific facts were sufficient to give Mr Roynon exclusive possession and that he had an Assured Shorthold Tenancy.

Consequences

This case is a reminder that it is not simply enough to label a document a licence if the reality of the situation is something different. The consequences for failing to recognise when an agreement is a tenancy can result in a landlord having to terminate such agreement in accordance with the relevant statutory procedures.

Guardian providers may need to embrace the likelihood that their existing arrangements constitute ASTs and adapt their procedures accordingly. Landowners should be sure that documents are carefully drafted and arrangements put into place to ensure that any attempts to keep trespassers out do not result in letting unwanted tenants in.

So don’t be caught off guard by letting your guard down…

Ben Gant
Solicitor
Real Estate Group
ben.gant@freeths.co.uk

“They’re back…” Is possession really 9/10th’s of the Law?

Written by freethslocalgovernment on March 22, 2017

As a property litigator, when you get a message from a client you are not expecting to hear from asking you to call urgently at 7.30am on a Friday morning, you know that your day is not going to go the way you thought it was.  “They’re back” was the message.

IMG_2442

Our client had bought a 3.5ha site for development and in May last year, before putting a spade in the ground, a number of trespassers got onto the land and began fly tipping waste on it. It appeared that these individuals were collecting rubbish from people for a price and then dumping it on our client’s site. Our client asked the Police to get involved but they declined to do so.

We urgently commenced Court proceedings seeking an order for possession in the County Court.  By the time the order was granted and the trespassers left, they had dumped over 1000 tonnes of rubbish on the site which cost the client circa £150,000 to clear.  The photos show the state the trespassers left the site in.

IMG_2440

Fast forward to last Friday morning.  When our client told me “they’re back“, this of course referred to the return of the trespassers to the site.  Our client had previously secured the site with locked gates and erected concrete blocks to prevent access but the trespassers simply cut through the locks and broke through the concrete blockade and had begun dumping waste on the site.  Once again, the Police declined to act and directed our client to obtaining an order for possession in Court.

In view of the urgency of the situation, we decided to make an application for permission to issue a claim for possession in the High Court and shorten the time for the service of the claim. We wrote a letter advising the trespassers of what we were doing and asked them to attend the High Court in London at 2pm that afternoon.  We then quickly prepared all the paperwork and arranged for Counsel to go to Court.  Whilst the Judge took some persuading, he agreed that in view of the history of fly tipping and the potential for further damage to the site, it was appropriate for the claim to be issued in the High Court and for the time for service to be shortened. A key factor in this was that the trespassers had been given notice of our application. The Judge ordered that the trespassers give up possession immediately, that the claim documents be served at the same time as the order for possession and issued a writ authorising High Court Enforcement Officers to remove the trespassers from the site.

By 7pm on Friday evening, all of the trespassers had been removed and the site made secure. All in all, a fantastic turnaround for our client given the potential nightmare of having the trespassers on site dumping waste whilst the matter made its way through the County Court system.

So what lessons can be learnt from this?

1.  The vast majority of trespass cases still must be issued in the County Court.  This process can take a number of weeks for a trespass order to be granted and in the intervening period, the trespassers can cause extensive damage to the property they occupy without any real recourse for the owners on the basis the trespassers are “Persons Unknown“.  The Police rarely get involved leaving the site owner with potentially huge clean-up costs whilst the trespassers walk away scot- free. The law desperately needs reforming so that the cards are not stacked so much in the trespassers’ favour.

2.  The High Court issued a guidance note in September 2016 as to the types of trespass cases it considers would be appropriate for issue in the High Court.  One of the specific circumstances referred to is fly tipping of waste so if you can prove there is a real danger of extensive fly tipping by trespassers, it may well be possible to issue in the High Court. However, the Court will need persuading the matter is sufficiently serious to merit issue in the High Court.

3.  By moving quickly great results can be achieved.  Here this was possible due a collective team effort between our client, the High Court Enforcement Officers (Constant & Co), Counsel (Jamal Demachkie of Harwicke Chambers) and ourselves.

Paul Tomkins

Paul Tomkins

paul.tomkins@freeths.co.uk

Partner

Property Litigation…

Hope Living

Written by freethslocalgovernment on March 21, 2017

On Friday I attended the launch of Hope Living, and assisted with a presentation by Phil Woolas and Jason Highet at the Conservative Party Spring Conference at the SSE Swalec stadium, Cardiff.

‘Hope’ is an initiative to relieve ‘bed-blocking’ by making available accommodation on a long term basis to Local Authorities and Clinical Commissioning Groups (CCGs) at a rental linked to Local Housing Allowance (LHA) rates, the rent for which is met by Housing Benefit. The way in which the private funding is made available makes it possible for £15,000 to be applied to refurbish each unit of accommodation. Tenants are nominated by the Authority, who are then granted an assured shorthold tenancy.

 The Mirror online reported on this over the weekend but please also see Hope Living’s website for further information on the initiative.

Matthew Grocock
Partner
Real Estate Group

matthew.grocock@freeths.co.uk