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Public law and Regulation

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31 JAN 2013

Hilary term in the Supreme Court

The coming months will see the Supreme Court tackle a diverse range of interesting and often high-profile public law issues.

Earlier in the month the court sat in R (on the application of Sharif) v London Borough of Camden. This case concerns the meaning of the phrase ‘available for occupation' as found in section 176 of the Housing Act 1996. The appellant council fell under an obligation to provide suitable housing for the claimant, her elderly father and her school age sister. When the council offered the family two separate flats, they refused on the basis that this would require them to live separately. The council then informed the claimant that their obligation was terminated upon her refusal of what they considered to be appropriate accommodation. Section 176 states that accommodation is only ‘available' if it is available to the applicant along with any person with whom they normally reside as a member of their family, or any person who might reasonably be expected to reside with them. The Court of Appeal found in favour of the applicant, holding that the accommodation offered was not suitable for her "together with" her family, in accordance with section 176.

On a similar note, at the end of the month the Court will sit in the case of SL v Westminster City Council. Here the applicant, a failed asylum seeker suffering from depression and post-traumatic stress disorder, contends that when he became homeless the local authority came under a duty to provide him with ‘care and attention not otherwise available to him' under section 21(1)(a) of the National Assistance Act 1948. The Court of Appeal [SL v Westminster City Council [2011] EWCA Civ 954] found that SL was in need of care of attention and that Westminster's decision had been unreasonable. The Lord Justices moved away from the previous test (that where the individual's situation was made materially worse by a factor other than their lack of accommodation and money, the local authority need not provide care and attention), preferring instead a more pragmatic approach. The Court stated that local authorities should determine whether care and attention was otherwise available by asking whether it would be reasonably pragmatic and efficacious to provide support without accommodation. Where this was not the case, it was clear that care and assistance should be provided. Claimant lawyers saw this as a significant shift in favour of vulnerable people. SL has since been granted indefinite leave to remain, but the Supreme Court will hear Westminster's appeal due to its wider significance.

Later in the term, the Court will hear the much awaited case of R (on the application of ClientEarth) v Secretary of State for the Environment, Food and Rural Affairs. This challenge relates to the Air Quality Directive 2008/50, which sets limits for nitrous oxide. The reductions required to meet these limits were intended to be achieved by January 2010, but the Directive contained a mechanism which allowed Member States an additional five years on the condition that an air quality plan was established. The Secretary of State has acknowledged that it will not be possible to achieve the stipulated levels by 2015 in a number of areas. ClientEarth argue that the Secretary of State is under a duty to draw up plans which will ensure the limits are met by 2015. The Court of Appeal found against ClientEarth on the basis that, quite simply, the UK could be in breach of EU law. Any enforcement action would be pursued by the European Commission. Their arguments received such short shrift in the Court of Appeal that many were surprised that the Supreme Court granted leave to appeal, so many will be eager to discover what has captured their interest.

One final matter of note is the possibility that the identities of the three new Justices of the Supreme Court will be announced this term. With Lord Dyson already having taken up his position as Master of the Rolls and Lords Walker and Hope due to retire in March and June respectively, it surely cannot be long until the new justices are announced. Commentators have suggested that the new appointments may include another female Justice of the Supreme Court, with the suggestion that Lady Justice Hallett and Lady Justice Black are both in the running. Other names to have been raised include Lord Justices Lloyd, on the basis that he, like Lord Walker, is a chancery judge, and Lord Justices Rix and Laws. As for the Scottish judge who will replace Lord Hope (a convention rather than a rule), commentators are tipping Lady Dorian, Lady Paton and Lady Smith - so this year may see a marked improvement in judicial diversity statistics.

Other cases of interest include:

  • In the matter of an application by Martin Corey for judicial review - an expedited hearing concerning whether the High Court of Northern Ireland had jurisdiction to grant bail, where the applicant had successfully challenged his recall to prison and the revocation of his licence on the basis that the decision of the Parole Commission was substantially based on closed evidence and thus breached his rights under Article 5(4) of the European Convention on Human Rights.
  • Ministry of Defence v Smith - the Justices will hear the negligence claims, but not the human rights claims, of the families of soldiers killed in the Iraq conflict.
  • Uprichard v Scottish Ministers - the determination of whether reasons given for not modifying a final structure plan were adequate, and whether the finalised structure plan was within the power of the Scottish Ministers.
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