Latest News - October/December 2022

Welcome to our latest news brief for October/December 2022. We would like to take this opportunity to wish you and your family a happy and prosperous 2023.

There have been several developments over the past 12 weeks which will be of interest to local authorities and charities, including:

• The Supreme Court declared that a planning condition that purported to require a landowner to dedicate roads on its development site as public highways would be unlawful -DB Symmetry Ltd v Swindon BC [2022] UKSC 33
• Local Government and Social Care Ombudsman ordered Leicestershire County Council to make payments after it failed to offer support to a visually impaired person for 21 months
• House of Commons Library publishes research briefing on protection for trees and hedges
• Two-thirds of employees do not speak out when they witness workplace discrimination
• Council ordered to pay £7,000 after failing to provide alternative education for an autistic child
• Widower of former school teacher received settlement in asbestos-related cancer claim

We have provided details on these and other latest news below.

As always, we would like to thank you for your ongoing support. If there is anything you would like to see published in our News and Insights section, please do not hesitate to let us know.

Local Government and Social Care Ombudsman ordered Leicestershire County Council to make payments after it failed to offer support to a visually impaired person for 21 months

In December 2020, the Royal National Institute of Blind People (RNIB) contacted the Leicestershire County Council (the Council) on behalf of a visually-impaired woman (A) seeking social care support for her. The RNIB contacted the Council again several months later stating that a care plan had not been completed following A’s care needs assessment that had taken place in March 2020.

A second needs assessment was conducted in March 2021 and the conclusion was that A was entitled to 12 hours of weekly support. However, no progress was forthcoming and the RNIB subsequently made a complaint to the Local Government and Social Care Ombudsman (LGSCO).

In January 2022, direct payments for a personal budget to A were finally made following a new Care Assessment and Care and Support Plan.

The LGSCO provided a report following its investigation. Along with exercising its discretion to allow the RNIB’s complaint to be made more than 12 months after the date of the first care assessment, the Ombudsman found:

• The Council had been slow in undertaking A's re-assessment, preparing her care and support plan, conducting her financial assessment, and arranging her personal budget payments.
• The lack of social care over the 21 months resulted in A suffering an injustice. She had frequently burnt herself when cooking, had had several falls and had been unable to socialise during this time, the latter negatively affecting her well-being.

The LGSCO recommended the Council pay A £7,220 to recognise the lost services to which she was entitled and a further £2,800 to recognise the distress caused by the lack of social care support and the delay in arranging it. Furthermore, it suggested that the Council review its existing processes for preparing care and support plans to identify why the delay in A’s case happened.

House of Commons Library publishes research briefing on protection for trees and hedges

In early October 2022, the House of Commons Library published a detailed report aimed at people and local authorities

The briefing sets out:

• Solutions for resolving disputes concerning problem trees and hedges, including using mediation as an alternative to going to court.
• When people can lawfully trim or cut back overhanging branches or bushes stemming from a neighbouring property or roadside.
• The duty of homeowners, including local authorities, under the Occupiers’ Liability Acts (1957 and 1984) is to “make sure he/she has taken reasonable steps to ensure the safety of his/her tree”.
• Local authorities’ powers under the Local Government (Miscellaneous Provisions) Act 1976 to deal with any trees it considers to be dangerous, if requested by someone else within its area who is affected, and to recoup the costs from the owner if they can be traced.
• Powers of local authorities under Section 215 of the Town and Country Planning Act 1990 to deal with any trees that affect the amenity of a particular area.
• The legal framework for the protection of trees.
• The procedure for felling trees, including the requirement to obtain a licence from the Forestry Commission in some cases.

Two-thirds of employees do not speak out when they witness workplace discrimination

A survey conducted by the Wates Group in October 2022 showed that people’s intention to support under-represented colleagues does not translate into action in most cases. The study of over 5,000 UK employees found that 67% consider themselves an "ally". However, only 36% have spoken up against discrimination or exclusion of a colleague from a minority background when they have witnessed such incidents occurring.

The research found that four in 10 (40%) have experienced microaggressions at work related to their identity.

The Supreme Court declares that a planning condition that purported to require a landowner to dedicate roads on its development site as public highways would be unlawful -DB Symmetry Ltd v Swindon BC [2022] UKSC 33

The local authority granted planning permission to a developer for a development on land near public highways. One of the conditions stated:

"The proposed access roads [...] shall be constructed in such a manner as to ensure that each unit is served by a fully functional highway, the hard surfaces of which are constructed to at least base course level prior to occupation and bringing into use." This was to ensure “that the development is served by an adequate means of access to the public highway in the interests of highway safety."

A planning inspector interpreted the condition as necessitating that the roads be constructed to base course level. They did not need to be made available for the public to use.

The local authority appealed successfully to the High Court. On appeal, the Court of Appeal ruled that a condition related to the granting of planning permission that required a developer provide its land for use as a public highway without any compensation in return would be unlawful and that the inspector's interpretation of condition 39 was correct. 

The Supreme Court upheld the Court of Appeal’s decision, stating it was not lawful for a planning condition to require public rights of way to be granted over land. In making its decision, the Supreme Court approved the ruling in Hall & Co Ltd v Shoreham by Sea Urban DC [1964] 1 W.L.R. 240, [1963] 11 WLUK 84. Although the aforementioned case did not concern a condition that insisted that the developer dedicate a road as a public highway, the case was authority via similarity for the proposition that a local planning authority could not use a planning condition to require a landowner to commit land for such a purpose.

Council ordered to pay £7,000 after failing to provide alternative education for an autistic child

In December 2022, Oxfordshire County Council was ordered to pay £5,000 to an autistic child’s mother to make up for the 12 months of education he missed when he was unable to attend school, and a further £2,200 to reimburse the cost of commissioning an educational psychologist. The order followed an investigation by the Local Government and Social Care Ombudsman.

The boy in question did not attend school from June 2021, until February 2022. The Council claimed that he had received online lessons, however, evidence suggested that online learning was “unsuitable” because there was no direct teaching, and what was offered was “not based on the boy’s needs.” Between February and June 2022, no education was provided at all.

The Ombudsman’s report also found that:

• the Council did not investigate what education was available, review whether the school could meet the boy’s needs, or try to discover whether the online education provided was sufficient,
• the Council requested medical evidence as to why the boy could not go to school, which was contrary to guidance,
• the Council took six months to create an Education, Health, and Care Plan (EHCP) for the child when the process should have taken only 20 weeks, and
• there were several failings concerning the way the Council responded to the mother’s complaints.

The following recommendations were made by the Ombudsman:

• Officers should be aware of the council’s duty under section 19 of the Education Act 1996 to ensure appropriate education is made available to children unable to attend school. Officers must also understand the factors to be considered when deciding whether alternative provisions should be made; and
• Policies and procedures should be in place to monitor pupils who require an alternative educational provision, including tracking absences other than for medical reasons, to ensure that the education provision provided is regularly evaluated to check that it is continuing to meet the recipient’s education and special educational needs.

Widower of former school teacher received settlement in asbestos-related cancer claim

The Claimant was Head of PE at St Teresa’s Secondary Girls School (now called St Paul’s Catholic College) from September 1971 to June 1979. For a period of five to six months between 1972 to 1974, the Claimant was “exposed to asbestos dust when building works were undertaken at the school in the changing rooms, assembly hall, the gym and other areas.”

Research undertaken by the Claimant’s Solicitors found that building work was carried out in the school following the appearance of cracks. During these works, asbestos was discovered and disturbed. The disturbance of asbestos was denied by the Defendant, Surrey County Council.

A three-day trial was set for 1^st December 2022, however, the Claimant died shortly beforehand. The Defendant subsequently made the Claimant’s widower a “substantial offer of compensation” and also agreed to pay the widower’s legal costs.

This offer was accepted, negating the need for a full trial.

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