This page draws together a monthly selection of articles and features supplied by LexisNexis for publication on Local Government Lawyer and Public Law Today. We also showcase other publications and resources that LexisNexis produces to support lawyers working in the public sector. To see all articles, please click here.
Slide background

Private deprivations of liberty

Adult social services portrait1LexisPSL Local Government, in partnership with Tim Spencer-Lane, considers the concept of 'private' deprivations of liberty for the purposes of Article 5 ECHR, involving people who lack the material decision-making capacity.

A private deprivation of liberty refers to a situation where the relevant care or treatment has not been being arranged and funded by the state but by private persons—for instance, care services might have been arranged by the person’s own family and paid for from the person’s funds or funds provided by family.

A private deprivation of liberty could potentially occur in a hospital or care home setting (eg the person themselves might have arranged and paid for a private care home placement without any assistance from a public authority). A private deprivation of liberty might also occur in supported living, shared lives accommodation (sometimes referred to as adult placements), and domestic settings (where the person is living in a family home or living on their own in normal non-specialist housing). (Care and Support and After-care (Choice of Accommodation) Regulations 2014, SI 2014/2670, regs 7 and 8)

What is deprivation of liberty?

Article 5 of the ECHR guarantees the right to personal liberty and provides that no one should be deprived of their liberty in an arbitrary fashion. Article 5(1)(e) permits the lawful detention of, among others, 'persons of unsound mind' in accordance with a procedure prescribed by law. Article 5 also requires certain safeguards to be provided to persons deprived of liberty, including the right of access to speedy judicial proceedings to challenge the lawfulness of the detention.

In the context of a person of 'unsound mind', the European Court of Human Rights in Storck v Germany [2005] ECHR 61603/00, paras 74 and 89 has confirmed that a deprivation of liberty has three elements:

  • the objective element of confinement in a restricted space for a non-negligible period of time
  • the subjective element that the person has not validly consented to that confinement, and
  • the detention being imputable to the state

Imputability to the state

When it comes to identifying potential private deprivations of liberty, the third element above is often a key issue (ie whether the state of affairs is imputable to the state). The European Court of Human Rights in Storck has held that the State can be responsible for a deprivation of liberty in three ways:

  • the direct involvement of public authorities in the person’s detention
  • if the courts have failed to interpret the law governing any claim for compensation for unlawful deprivation of liberty 'in the spirit of Article 5', or
  • the state has breached its positive obligation to protect the person against interferences with his or her liberty by private persons

The first type of deprivation of liberty is referred to as 'direct state responsibility', and the third type is referred to as 'indirect state responsibility'. It is likely that most private deprivations of liberty will arise as a result of indirect state responsibility.

The leading authority on the responsibilities of the state under Article 5 is Storck v Germany. This case concerned an 18-year-old woman who had been placed in a locked ward of a private psychiatric institution at her father’s demand who believed her to be suffering from a psychosis. The European Court of Human Rights held that the direct involvement of the state arose due to the involvement of the police in returning her to the institution when she had attempted to leave. In addition, the state had violated its positive obligations since there had been inadequate supervisory control over the lawfulness of the detention.

The inclusion of indirect state responsibility reflects the fact that Article 1 of the ECHR requires the state to secure convention rights and freedoms in its domestic law to everyone within its jurisdiction. In respect of the right to personal liberty, the jurisprudence establishes that the first sentence of Article 5(1) establishes a positive obligation on the state to protect all of its citizens against interferences with their liberty whether by state agents or by private individuals. In Storck v Germany, para 102 the European Court of Human Rights reasoned that:

Any conclusion to the effect that this was not the case would not only be inconsistent with the Court’s case law, notably under Articles 2, 3 and 8 of the Convention, it would also leave a sizeable gap in the protection from arbitrary detention, which would be inconsistent with the importance of personal liberty in a democratic society.

The state is therefore obliged to take measures providing 'effective protection of vulnerable persons', including 'reasonable steps to prevent a deprivation of liberty of which the authorities have or ought to have knowledge'.

The positive obligations imposed by Article 5

In Re A (a child) (deprivation of liberty) Re C (vulnerable adult) (deprivation of liberty) [2010] All ER (D) 50 (Aug), the court considered whether the domestic care at home by their parents of a child and an adult amounted to a deprivation of liberty. Both individuals were being locked in their bedroom at night for their own safety by their parents. In both cases, the local authority provided care and support services (but not for the period when they were locked in their rooms) and were aware of the night-time arrangements.

Sir James Munby, President of the Court of Protection, held that neither individuals were in fact being deprived of their liberty since the objective element was not present. Nevertheless, the judgment also considered the responsibility of the state in cases such as these. It was held that the provision of care and support by a public authority (in this case a local authority) to someone in a domestic setting will not, of itself, trigger direct state responsibility for a deprivation of liberty and that, similarly, 'mere knowledge' of the home arrangements which led to the detention will also not be sufficient. But where a public authority knows or ought to know that a vulnerable child or adult is subject to restrictions on their liberty by a private individual, which may give rise to a deprivation of liberty, the following positive obligations are triggered:

  • a duty to investigate whether there is, in fact, a deprivation of liberty. If the authority investigates and finds no deprivation of liberty it has discharged its immediate responsibilities. But in some cases it may be required to continue to monitor the situation
  • a duty in appropriate circumstances to provide support services to the individual and/or the carers that will enable inappropriate restrictions to be ended, or at least minimised
  • a duty to refer the matter to the court if there are no reasonable measures that it can take to bring the deprivation of liberty to an end, or if the measures it proposes are objected to by the individual or the family

It should be noted that, in this judgment, the analysis of the objective element of a deprivation of liberty applies authority that pre-dates the Supreme Court decision in P v Cheshire West and Chester Council and P v Surrey County Council [2014] 2 All ER 585.

Guidance produced by the Law Society suggests that pending clarification from the courts, there is likely to be sufficient State involvement to make the situation fall within the scope of Article 5(1), if:

  • arrangements are made, whether by a local authority or NHS body, to commission and provide care in the individual's own home, or
  • direct payments (including personal health budgets) are made (whether for social or health care) to a family member or professional carers to arrange and provide care to the individual in the individual's own home, or
  • the decision that the individual should remain in their own home and be cared for there has been taken on their behalf by the Court of Protection

It also advises that, where decisions have been taken on the person’s behalf by a best interests decision-making process involving the relevant local authority or NHS body, the state will be 'on notice' of any deprivation of liberty that may arise in consequence of those decisions, and the local authority or NHS body may have positive obligations to ensure there is authority for that deprivation of liberty.

The guidance was commissioned by the Department of Health but does not represent 'official' government guidance.

When does private deprivation of liberty arise?

There has been limited judicial consideration of the extent of state involvement that will lead to a private deprivation of liberty. In Rochdale Metropolitan Borough Council v KW [2014] EWCOP 45, the court considered the situation of a woman with severe brain damage who received care and treatment (funded by the local authority and clinical commissioning group) at home—held under a tenancy from a housing association. At first instance, Mr Justice Mostyn concluded that the objective element of a deprivation was not present in this case. But he also made the following observations (obiter):

I am not suggesting, of course, that it is impossible for a person ever to be deprived of his liberty by confinement in his or her own home. In the field of criminal law this happens all the time. Bail conditions, or the terms of a release from prison on licence, routinely provide for this. However, I am of the view that for the plenitude of cases such as this, where a person, often elderly, who is both physically and mentally disabled to a severe extent, is being looked after in her own home, and where the arrangements happen to be made, and paid for, by a local authority, rather than by the person's own family and paid for from her own funds, or from funds provided by members of her family, Article 5 is simply not engaged.

The footnote to this paragraph observes that 'there is also the problematic question of whether the state is involved in a private arrangement if benefits, such as attendance allowance, are paid to help with the care of the protected person.'

The Court of Appeal allowed an appeal against this ruling by consent in Rochdale MBC v KW [2016] 2 All ER 181.

The case of W City Council v Mrs L [2015] All ER (D) 323 (Mar) concerned a 93-year-old woman with dementia living in her own home and receiving care and support from her family and the local authority. During a discussion of the objective element of deprivation of liberty, Mr Justice Bodey stated that the 'own home consideration' was a 'relevant factor in the mix'. Ultimately, it was held that the objective element had not been met, and therefore Mrs L was not deprived of her liberty. But Mr Justice Bodey went on to state (obiter) that even if the objective element had been met, he would not have found a deprivation of liberty because the 'strong role' which the family played in the relevant care arrangements had diluted the responsibility of the state. But according to the judgment, the issue regarding the different types of state imputability had been introduced only very late by Counsel for the local authority, and not pressed by her.

Staffordshire County Council v SRK [2016] All ER (D) 169 (May) concerned a victim of a road traffic accident who had sustained a brain injury necessitating 24-hour care. A significant damages award was made by the Queen’s Bench Division, enabling his property and affairs deputy to purchase an adapted bungalow for SRK and fund a private care package. There was no input from the local authority. The effect of his injuries meant that the objective and subjective elements of a deprivation of liberty were in place. The issue therefore arose as to whether the state was responsible, directly or indirectly, so as to engage Article 5.

Mr Justice Charles held that the state does not become directly responsible simply because the local authority had undertaken assessments (and had applied to the Court of Protection for a welfare order authorising the deprivation of liberty) or because the placement was registered with the Care Quality Commission. The steps undertaken by these bodies were described as 'part of the supervision and regulation of private providers of care and do not found a sufficient direct participation by the state as a decision maker, provider or otherwise in the creation and implementation of SRK’s (private) deprivation of liberty within Article 5'. Similarly, the state does not become directly responsible as a result of:

  • an application for a welfare order
  • a court awarding damages
  • the Court of Protection appointing a deputy, or
  • the involvement of a deputy

However, Mr Justice Charles concluded that a welfare order was needed to avoid a violation of the state’s positive obligations. This positive obligation was triggered by the state’s knowledge of the concrete situation on the ground. This knowledge arises as a result of the following becoming aware that subjective and objective elements are in place:

  • the court awarding damages
  • the Court of Protection when appointing a deputy, or
  • the deputy/attorney/trustee to whom damages are paid

In London Borough of Haringey v R (by his litigation friend, the Official Solicitor) and others [2016] All ER (D) 78 (Jul), Senior Judge Lush considered the position of a young man with learning disabilities and autism who had been moved into supported living accommodation. His mother, father and brother, who were his deputies (both for property and affairs and personal welfare), had chosen the placement. In this case it was held that the objective and subjective elements existed, and that the local authority was directly responsible for the deprivation of liberty. The direct responsibility of the state had arisen because the local authority had funded the placement and provided specialist knowledge to enable the family to access the choice of providers (for instance it had provided the family with a list of care providers for them to choose from). The local authority was ultimately making the determination as to what was in the person’s best interests, and in doing so was taking into account the views of the family/deputies as required by the Mental Capacity Act 2005, s 4.

Authorising private deprivations of liberty

A private deprivation of liberty that is occurring in a hospital or a care home can be authorised by a local authority in its role as the supervisory body under the Deprivation of Liberty Safeguards contained in the Mental Capacity Act 2005 Sch A1.

Section 64(6) of the Mental Capacity Act 2005 provides that, for purposes of references to a deprivation of liberty, it does not matter whether a person is deprived of their liberty by a public authority or not. There has been some debate about whether the effect of this provision is to remove the requirement that a deprivation of liberty must be imputable to the state for the purposes of the Mental Capacity Act 2005. However, Mr Justice Charles in Staffordshire CC v SRK has held that section 64(6) simply confirms that a deprivation of liberty does not have to be by a public authority.

Outside a hospital or care home setting, a private deprivation of liberty could be authorised by the Court of Protection under a welfare order under the Mental Capacity Act 2005 ss 4A, 16(2)(a). A streamlined court procedure has been implemented for dealing with such cases (often referred to as the 'Re X process').

There are a limited number of cases in which the requisite authority for a private deprivation of liberty would have to come from the High Court under its inherent jurisdiction (for instance in relation to children under 16) e.g. Re X and others (deprivation of liberty) [2015] 2 All ER 1154, and Re X (Number 2) [2014] EWCOP 37

This article, written in partnership with Tim Spencer-Lane was originally published in LexisPSL Local Government. If you would like to read more quality content like this, then register for a free 1 week trial of LexisPSL.

More content from LexisNexis

December 02, 2021

Empty white space in a data hall operated by an IT company forms part of a rateable hereditament

LexisPSL analyse a case in which empty white space in a data hall operated by an IT company forms part of a rateable hereditament
November 26, 2021

Costs order made against an intermediary (A local authority v Mother)

LexisPSL conduct a Family analysis on a case in which a Costs order was made against an intermediary (A local authority v Mother).
November 25, 2021

Court finds no duty to take past housing oversupply into account in assessing five-year target

LexisPSL conduct a planning analysis on the Tewkesbury BC v SSHCLG case, in which the court dismissed a challenge to an inspector’s decision to grant planning permission for a housing development.
November 19, 2021

Infrastructure planning - an error of law in the process of determining applications did not justify a quashing of the decisions

Joseph Cannon analyses the EFW Group Ltd v SSBEIS case, in which an error of law in the process of determining applications did not justify a quashing of the decisions.
November 12, 2021

Faith school legitimate expectation and discrimination challenges dismissed

Adam Heppinstall QC and Jack Castle explore a case in which the court dismissed legitimate expectations, discrimination and irrationality challenges against the decision to move a Sikh-faith Academy to another Trust.
November 04, 2021

Issuing and serving the claim form

Rebecca Lawrence considers the pitfalls and potential relief in procurement challenges and beyond (CitySprint UK v Barts Health NHS Trust).
November 01, 2021

Local Authority Insight Series - Effectively tackling ASB

Join expert Housing barrister, Kuljit Bhogal and Susan Taylor, Senior Solicitor at Capsticks as they outline the latest thinking for social landlords on effectively tackling ASB.
October 15, 2021

Local Authority Insight Series - the Liberty Protection Safeguards

ON-DEMAND WEBINAR: Alex Ruck-Keene and Emma Harrison look at how the new Liberty Protection Safeguards will work in practice when they replace the Deprivations of Liberty Safeguards (DOLS) next year.
October 14, 2021

Who examines the examiners?

Graeme Watson of Clyde & Co LLP considers the role of case examiners for the General Medical Council and the extent to which their decisions are open to challenge by disappointed patients.
October 07, 2021

Unregulated placements for children under 16

Can the High Court to still authorise, under its inherent jurisdiction, the deprivation of liberty of a child under the age of 16 following amendments to the Care Planning, Placement and Case Review (England) Regulations 2010? Tahmina Rahman, barrister at 1GC Family Law, considers the issues.
September 30, 2021

Social care reforms in England - how will they work in practice?

Nicola Gunn of Anthony Gold Solicitors LLP, in association with Lexis PSL, considers what the reforms will mean in practice for those who require care.
September 24, 2021

The recovery of tuition fees

Imogen Proud analyses the decision of the High Court in SS Education v CCP Graduate School Ltd to deny the recovery of tuition fees under the Education (Student Support) Regulations 2011.
September 17, 2021

Local Government - new starter guide

The following LexisNexis practice note is aimed at trainee solicitors and those who are new to Local Government and explains the role of local government lawyers and provides an overview of the primary legal disciplines they will encounter.
September 07, 2021

Homelessness and eligibility

This LexisNexis Local Government practice note, produced in partnership with Iris Ferber of 42 Bedford Row, provides comprehensive and up to date legal information covering the eligibility of applicants for housing assistance.
September 03, 2021

What is climate change litigation?

The following LexisNexis Environment practice note produced in partnership with Katharina Theil of Leigh Day and Richard Lord QC of Brick Court Chambers provides comprehensive and up to date legal information on the rise of climate change related litigation.
August 27, 2021

Local Authority Insight Series - Local Authority Duties in Intercountry Adoption

ON-DEMAND WEBINAR: Ruth Cabeza, barrister and author of the text, International Adoption, from Harcourt Chambers and Joy Hopkinson, Principal Social Care Lawyer from London Borough of Lambeth, discuss the issues for local authorities dealing with overseas placements both in a private and public law context.
August 26, 2021

Gambling law: at-a-glance guide

This LexisNexis Local Government practice note produced in partnership with Carl Rohsler of Memery Crystal provides comprehensive and up to date legal information covering the legal issues most pertinent to the gambling industry.
August 19, 2021

Delivering 21st-century customer experience in the public sector

Rachel Buchanan examines how legal teams should support their authorities in delivering tailored services at a time of restrained resources.
August 05, 2021

The Public Law Outline 2014

The following Family practice note provides comprehensive and up to date legal information covering the operation of the Public Law Outline 2014 during the Covid-19 Pandemic.
July 29, 2021

IR35 and off-payroll workers

The following LexisNexis Tax practice note, produced in partnership with David Smith of DLA Piper, explains the IR35 regime which applies where either a public authority or a private sector entity engages a worker via an intermediary.
July 22, 2021

Food advertising

This LexisNexis Practice Note, produced in partnership with Katrina Anderson of Osborne Clarke, considers the law and practice applicable to food advertising to consumers.
July 15, 2021

CQC enforcement tracker

This Practice Note from LexisNexis provides a summary of key prosecutions for health and social care offences brought by the Care Quality Commission (CQC) in England since 2015. This tracker is intended to assist practitioners in monitoring the type of sentences which are being imposed for breaches of health and social care legislation.
July 09, 2021

Good faith in commercial agreements

The following Commercial practice note from LexisNexis examines the concept of good faith and the extent to which it is applied in commercial agreements.
June 28, 2021

Local Authority Insight Series - Climate Change

ON-DEMAND WEBINAR: What are the legal powers that local authorities can use to fight climate change and what legal obstacles do they face? Rachel McKoy, Stephen Cirell, Richard Honey QC and James Lupton consider the problems.
June 18, 2021

Possession - anti-social behaviour, nuisance and crime

This Local Government practice note from LexisNexis provides comprehensive and up to date legal information covering the options available to social housing landlords when taking possession proceedings against tenants engaged in anti-social behaviour.
June 11, 2021

Unlawful eviction and quiet enjoyment

This LexisNexis Local Government practice note produced in partnership with Laura Tweedy of Hardwicke Chambers explains what unlawful eviction is, how and when it may arise from a civil and criminal perspective, the civil remedies available and potential consequential causes of action, in particular a breach of a tenant’s right to quiet enjoyment.
June 04, 2021

Anti-social behaviour - powers to control behaviour

This LexisNexis Local Government practice note produced in partnership with Hardwicke Chambers provides comprehensive and up to date legal information covering the powers available under The Anti-social Behaviour, Crime and Policing Act 2014.
May 28, 2021

Introduction to public contracts procurement

The following LexisNexis Local Government practice note, produced in partnership with Katherine Calder of DAC Beachcroft, provides comprehensive and up to date legal information providing an introduction to public contracts procurement.
May 21, 2021

Housing disrepair for local authority landlords - a practical guide

This LexisNexis Local Government practice note, produced in partnership with Alexander Bastin of Hardwicke Chambers, discusses disrepair claims in relation to social housing, setting out the legal basis for a claim and other the relevant factors that need to be considered.
April 16, 2021

Education tracker

This Local Government practice note from LexisNexis provides comprehensive and up to date legal information covering key upcoming developments of interest to Education lawyers from early years foundation stage (EFYS) to further and higher education.
April 09, 2021

Vulnerable persons - participation and evidence in family proceedings

The following Family practice note from LexisNexis provides comprehensive and up to date legal information covering the participation of vulnerable people and evidence in family proceedings.
March 31, 2021

Coronavirus (COVID-19) - implications for property

The following Property practice note from LexisNexis provides comprehensive and up to date legal information covering the implications for landlords of the Covid-19 pandemic.
March 19, 2021

Brexit - key legislation explained

The following Public Law practice note produced in partnership with Dr. Kieran Laird of Gowling WLG provides comprehensive and up to date legal information covering the key legislation governing Brexit.
March 12, 2021

Transparency in the family courts

Ths following Family practice note from LexisNexis provides comprehensive and up to date legal information covering recent developments in the transparency of family court proceedings.
March 05, 2021

Use of confidential information in civil proceedings

This Dispute Resolution Practice Note from LexisNexis looks at the status and use of confidential information in civil proceedings including what confidential information is, how to protect confidential information and how confidentiality may be lost.
February 18, 2021

Brexit Timeline Tracker

This Practice Note sets out a timeline of key events and updates in the post-transition period, focussing in particular on the implementation of the EU-UK Trade and Cooperation Agreement and associated agreements.
February 11, 2021

Coronavirus (COVID-19) - Children’s Social Care Tracker

This tracker is focused on children’s social care and is intended to be used to track key developments, legislation, guidance, parliamentary briefing notes and other sources of interest relating to coronavirus (COVID-19) and children’s social care, where relevant to local government lawyers.
February 05, 2021

Coronavirus (COVID-19) - Healthcare Tracker

This tracker is focused on healthcare and is intended to be used to track key developments, legislation, guidance, parliamentary briefing notes and other sources of interest relating to coronavirus (COVID-19) and healthcare.
January 29, 2021

Coronavirus (COVID-19) - Governance Tracker

This tracker from LexisNexis Local Government intended to be used to track the most recent key developments, legislation, guidance, parliamentary briefing notes and other sources of interest relating to coronavirus (COVID-19) local authority governance, where relevant to local government lawyers.
January 21, 2021

Data protection under the EU GDPR

The following Information Law precedent from LexisNexis provides comprehensive and up to date legal information covering data protection after the final withdrawal of the United Kingdom from the European Union.
January 14, 2021

Commencing criminal proceedings - applying for the issue of a summons

The following Corporate Crime practice note from LexisNexis provides comprehensive and up to date legal information covering the correct procedure for bring a criminal prosecution.
December 18, 2020

Education tracker

This Lexis®PSL Local Government future developments tracker is intended to be used to track key upcoming developments of interest to education lawyers covering the entire spectrum of education from early years foundation stage (EFYS) to further and higher education.
December 11, 2020

Termination for breach of contract

The following LexisNexis Dispute Resolution practice note provides comprehensive and up to date legal information covering the identification and the process and implications of ending a contract due to breach.
December 03, 2020

Coronavirus (COVID-19) – implications for property

The following Property practice note from LexisNexis provides comprehensive and up to date legal information covering the implications for commercial and residential property of the Coronavirus (COVID-19) pandemic.
November 27, 2020

Local Government Brexit tracker

This tracker is intended to be used to track key developments, legislation, guidance, parliamentary briefing notes and other sources of interest relating to Brexit relevant to local government lawyers. It is arranged alphabetically by topic and is designed to provide an easy reference point for relevant content for lawyers to support preparation for and implementation of the United Kingdom’s withdrawal from the European Union.
November 20, 2020

Coronavirus (COVID-19) - Managing the Workplace

The following LexisNexis Employment practice note provides comprehensive and up to date legal information covering the management of workplaces during the Coronavirus pandemic.
October 22, 2020

Coronavirus (COVID-19) - Social Care Tracker

This LexisNexis tracker is intended to be used to track key developments, legislation, guidance, parliamentary briefing notes and other sources of interest relating to COVID-19, where relevant to social care lawyers.
October 16, 2020

Coronavirus (COVID-19) - local government tracker

This LexisNexis tracker is intended to be used to track key developments, legislation, guidance, parliamentary briefing notes and other sources of interest relating to COVID-19, where relevant to local government lawyers.
October 09, 2020

The Planning White Paper

LexisNexis looks at the government's proposals for a ‘whole new planning system for England’ in White Paper published for consultation, alongside interim reforms.
October 02, 2020

The Public Sector Equality Duty

The following LexisNexis Public Law guidance note, produced in partnership with Zoe Bedford of Ellis Whittam, provides comprehensive and up to date legal information covering the scope of the Public Sector Equality Duty.
September 25, 2020

Housing disrepair for local authority landlords - a practical guide

The following LexisNexis Local Government guidance note, produced in partnership with Alexander Bastin of Hardwicke, provides comprehensive and up to date legal information for local authorities covering all aspects of dealing with disrepair issues.
September 17, 2020

Employment law and Covid-19

This Employment guidance note from LexisNexis provides comprehensive and up to date legal information covering employment law issues arising from the Covid-19 pandemic.
September 11, 2020

Introduction to Public Contracts Procurement

The following LexisNexis Local Government guidance note, produced in partnership with Walker Morris, provides comprehensive and up to date legal information covering public contracts procurement, including the impact of Brexit.
September 04, 2020

Guide to Care Act 2014 repeals

The following LexisNexis Private Client guidance note provides comprehensive and up to date legal information covering repealed legislation (in whole or in part), secondary legislation revoked (in whole or in part), relevant new secondary legislation and statutory guidance and directions cancelled.
August 21, 2020

Obtaining possession of a secure tenancy

The following LexisNexis Local Government guidance note, produced in partnership with Karl King of Hardwicke Chambers, provides comprehensive and up to date legal information covering the grounds on which and steps required to obtain possession of a secure tenancy.
August 14, 2020

Obstruction of highways

This LexisNexis Local Government guidance note, produced in partnership with Nicholas Hancox Solicitors, provides comprehensive and up to date legal information covering a wide variety of circumstances in which public highways may be obstructed and what measures are available to councils to deal with them.
August 07, 2020

LexisNexis Gross Legal Product (GLP) Index: Quantifying legal demand growth and the impact of COVID-19

LexisNexis has built a data model to track growth in demand for legal services – the Gross Legal Product Index, or GLP. The report provides a framework for quantifying the impact of COVID-19 on your sector.
July 31, 2020

COVID-19: What’s worrying lawyers?

Elizabeth Rimmer of LawCare examines some of the issues encountered by lawyers when working remotely during the pandemic.
June 19, 2020

The First-tier Tribunal (Property Chamber) - practice and procedure

This Property Disputes guidance note from LexisNexis provides comprehensive and up to date legal information covering the jurisdiction, practice and procedure of the First-tier Tribunal (Property Chamber).
June 12, 2020

Quick guide to landlord’s remedies for breach of lease

The following property disputes guidance note from LexisNexis provides comprehensive and up to date legal information for commercial landlords.
June 05, 2020

The Public Law Outline 2014

This Practice Note provides practical guidance on key aspects of procedure and the PLO 2014 for public children proceedings.
May 07, 2020

Anti-social behaviour - powers to control behaviour under the Anti-social Behaviour, Crime and Policing Act 2014

This LexisNexis Local Government guidance note, produced in partnership with Hardwicke Chambers, provides comprehensive and up to date legal information covering the powers available to control behaviour under the Anti-social Behaviour, Crime and Policing Act 2014
May 01, 2020

Anti-social behaviour - powers to close premises under the Anti-Social Behaviour, Crime and Policing Act 2014

This Local Government guidance note from LexisNexis provides comprehensive and up to date legal information outlining the powers available to local authorities to close premises where anti-social behaviour is taking place.
Coronavirus Hand sanitizer 146x219
April 24, 2020

Coronavirus – What’s the impact on the legal profession?

With Coronavirus dominating the news and the majority of Europe now entering different stages of lockdown due to the rise in uncertainties about the virus, LexisNexis has rounded up its latest articles discussing the pandemic.
Human Rights 96780326 s 146x219
April 23, 2020

Why is advancing the rule of law so important?

Have you ever considered your human rights? The Universal Declaration of Human Rights outlines our various rights under the law, the most basic being: “We are all equal before the law."But, is this really the case?
April 16, 2020

Employment law and Covid-19

This following employment guidance note from LexisNexis provides comprehensive and up to date legal information on employment law changes caused by the Covid-19 outbreak.
Roadworks 54101373 s 146x219
February 28, 2020

Road traffic – order procedure notices

This Local Government guidance note from LexisNexis provides comprehensive and up to date legal information covering road traffic orders, regulations, procedures and the powers available to local authorities.
Housing Rogue Landlord 99725772 s 146x219
February 13, 2020

Obtaining possession of a secure tenancy

Produced in partnership with Karl King of Hardwicke Chambers, this LexisNexis Local Government guidance note provides comprehensive and up to date legal information covering the range of tenancy types for social housing and the processes involved in obtaining possession for each.
February 06, 2020

Local authority social care duties

The following Local Government guidance note, produced in partnership with Ros Ashcroft of DAC Beachcroft and Stephanie Townley of Addleshaw Goddard LLP provides comprehensive and up to date legal information covering local authority duties towards social care.
January 31, 2020

Houses in multiple occupation

This LexisNexis Local Government guidance note provides comprehensive and up to date legal information covering the management, licensing and definition of houses in multiple occupation (HMOs).
December 13, 2019

Granting assured and assured shorthold tenancies

This practice note from LexisNexis explains the criteria for assured tenancies (AT) and assured shorthold tenancies (AST) and the exceptions to those criteria, the main terms of AT and ASTs, the position regarding succession, and summarises a landlord’s obligations in respect of energy efficiency, gas safety and other health and safety obligations, right to rent and tenancy deposits.
December 05, 2019

Assignment and succession of tenancy

Morayo Fagborun Bennett looks at the circumstances in which social housing tenancies can be transferred to another tenant.
November 29, 2019

Powers to control anti-social behaviour under the Anti-social Behaviour, Crime and Policing Act 2014

This guidance note provides a comprehensive and up to date overview of powers to control anti-social behaviour under the Anti-social Behaviour, Crime and Policing Act 2014, Reform of anti-social behaviour powers (2014), Part 1 Civil Injunctions and Part 2 Criminal Behaviour Order (CBO).
Missiles 91309216 s. 146x219
October 11, 2019

Exploring the court’s power to block sale of arms to Saudi Arabia

Sue Willman, senior partner at Deighton Pierce Glynn, analyses the case of R (on the application of Campaign Against Arms Trade) v Secretary of State for International Trade (Amnesty International and others intervening) and its implications for UK arms trade.
Airport travel 3160566 640
October 11, 2019

Court rejects challenges to Heathrow expansion

Charles Streeten, barrister at Francis Taylor Building, explains how the court came to reject the claims for judicial review of the Heathrow runway expansion in R (on the application of Spurrier) v Secretary of State for Transport and other cases.
Housing family 96709182 s
October 04, 2019

Exploring the limits of public authority’s liability for children

Duncan Fairgrieve and Jim Duffy, barristers at 1 Crown Office Row, examine the Supreme Court’s decision in Poole Borough Council v GN and another that the respondent local authority did not owe a common law duty of care to exercise its functions under the Children Act 1989 to protect the appellants, who were children of a family which it had housed, from harm at the hands of anti-social neighbours.
Dead end road 32516564 s 146x219
October 04, 2019

Abandoning a procurement exercise - when can a contracting authority extinguish a challenge?

Lucy James looks at the legal effect of a decision to abandon a procurement exercise and whether it extinguishes an accrued cause of action a bidder may have against a contracting authority for breaches of the Public Contracts Regulations 2015 SI 2015/102 (PCR 2015).
Education cuts 93374247 s 146x219
August 23, 2019

‘Funding crisis’ - a detailed look at the funding shortage in UK schools

According to campaigners, more than 200 schools in England are cutting their school weeks short due to funding shortages. This raises questions over legal ramifications and the responsibility of the government. Jean Tsang, associate at Bates Wells and governor of a maintained primary school, addresses these questions and looks at the worrying effects of this ‘funding crisis’ on the ‘most vulnerable children’ in the educational system.
Cost cutting 21525611 s 146x219
August 16, 2019

Judicial review challenge over closure of children’s centres defeated by local authority

The case R (on the application of L, an infant (by his mother and litigation friend)) v Buckinghamshire County Council represents the first time when the High Court considered in detail the meaning of the ‘sufficiency duty’ in section 5A of the Childcare Act 2006 (ChA 2006) in the context of whether a council’s consultation on the closure of a number of children’s centres was unlawful or not. James Goudie QC examines the background to and the practical implications of the judgment.
Market 25240022 s 146x219
August 09, 2019

How does a local authority establish a market?

The LexisPSL team outline the powers available to local authorities looking to establish a new market.
School gate iStock 000003257894XSmall 146x219
August 02, 2019

Forced academisation of schools - is resistance futile?

What are the circumstances which lead to a school being forced to become an academy, and is there anything that can be done to stop it happening? Katie Michelon provides an overview of the forced academisation process, and explains the options available to schools, parents and local authorities when faced with the possibility of an Academy Order.
Plane passenger plane 19469 640 pixabay
June 13, 2019

Home or away?

Katherine Illsley outlines how a local authority should approach the situation where a parent to be assessed for the purposes of public children care lives in another jurisdiction.
House key iStock 000004543619XSmall 146x219
June 07, 2019

Tenant Fees Act 2019 - government guidance

The government recently published guidance on the Tenant Fees Act 2019 (TFA 2019). Robin Stewart and David Smith of Anthony Gold Solicitors look at some of the key questions relating to the guidance, including enforcement, penalties and some controversial aspects such as guidance pertaining to payment of damages.
Choice 33452110 s 146x219
June 07, 2019

How should the courts approach cases with an ‘open’ pool of possible perpetrators?

Chris Stevenson, barrister at Fourteen, examines the Court of Appeal’s decision in Re B (children: uncertain perpetrator) to allow a father’s appeal against a Family Court judge’s finding that he was within a pool of possible perpetrators responsible for sexually transmitting gonorrhoea to three of his children (registration required).
Planning 146x219
May 24, 2019

Court of Appeal finds permissive housing policies can restrict development elsewhere

In Gladman Developments Ltd v Canterbury City Council [2019] EWCA Civ 669, the Court of Appeal dismissed an appeal by developer Gladman against the decision of the High Court to quash planning permission granted on appeal for a residential development on a site not allocated for development, not on previously developed land, and outside the existing built-up area.
Child safety gate 36045624 s 146x219
May 24, 2019

Safety first?

Daljit Kaur looks at the implications for disability discrimination of a case concerning a nursery-age child prevented from accessing provision over 15 hours.
UK map 66823434 s 146x219
May 17, 2019

The changing landscape of local authority Trading Standards prosecutions?

Richard Heller considers the potential impact of Qualter and others v Crown Court at Preston [2019] EWHC 906 (Admin) could have on the way regional Trading Standards services investigate and prosecute criminal offences (registration required).
Child removal iStock 000007583512XSmall 146x219
May 17, 2019

Wish they weren't here?

Can a parent with parental responsibility object to their child, who is subject to an interim care order, being taken on holiday by their foster parents?
Housing Rogue Landlord 99725772 s 146x219
May 10, 2019

Exploring the new guidance on greater protections from rogue landlords

Jason Hobday, associate at Womble Bond Dickinson, discusses the implications of recent government guidance documents which intend to enforce greater protections from rogue landlords (registration required).
Bias iStock 000008329150XSmall 146x219
May 09, 2019

Court finds judge in Uber licensing case was not biased

Philip Kolvin QC examines the High Court’s decision in R (United Cabbies Group) v Westminster Magistrates’ Court to dismiss the claimant’s application for judicial review of a district judge’s grant of an operator’s licence for London private hire vehicles to the third interested party, Uber.
Housing timer 45568205 s 146x219
May 03, 2019

End of the road?

Morayo Fagborun Bennett looks at the Court of Appeal's decision on waiving offers of alternative accommodation and the lawfulness of an earlier review decision on a subsequent homelessness appplication in Godson v London Borough of Enfield [2019] EWCA Civ 486.
Council Tax 89947548 s 146x219
May 03, 2019

Court rejects implied duty to report change of address for council tax purposes (R v D)

Samuel Genen, solicitor at Steel & Shamash, comments on the case of R v D [2019] EWCA Crim 209 where the Court of Appeal ruled that a failure to notify the local council of a change of address for the purpose of council tax did not constitute a criminal offence under the Fraud Act 2006 (FrA 2006). (Registration required)
Evidence in Foreign Courts 71283762 s 146x219
March 22, 2019

Is it in the best interests of a child to give evidence in a foreign trial?

Katherine Duncan explains how the court, in Re X, carried out a balancing exercise in determining whether a child, who was ward of the court, should be permitted to travel out of the jurisdiction to give evidence at a foreign criminal trial.
High Courts inherent jurisdiction for the protection of vulnerable adults 95112860 s 146x219
March 15, 2019

High Court’s inherent jurisdiction for the protection of vulnerable adults

The case of Southend-on-Sea Borough Council v Meyers [2019] EWHC 399 (Fam) highlights the wide and largely unfettered nature of the power to grant injunctive relief under the High Court’s inherent jurisdiction for the protection of vulnerable adults and the difficulty surrounding the issue of how the balance should be struck between protection of a person on grounds of vulnerability and respect for their autonomy, writes Bethan Harris.