North Tyneside Metropolitan Counil v Allsop
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE PARKER,LORD JUSTICE McCOWAN,SIR JOHN MEGAW |
| Judgment Date | 03 March 1992 |
| Judgment citation (vLex) | [1992] EWCA Civ J0303-4 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | 92/0202 |
| Date | 03 March 1992 |
[1992] EWCA Civ J0303-4
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
(Lord Justice Watkins)
Royal Courts of Justice
Lord Justice Parker
Lord Justice Mccowan
and
Sir John Megaw
92/0202
MR. JOHN HOWELL (instructed by A.A.Child, Esq) appeared on behalf of the Respondent (Applicant).
MR. JAMES GOUDIE QC and MR. MARK LOWE (instructed by Messrs Lee Bolton & Lee; London Agents for The Director of Legal and Administrative Services for the Metropolitan Borough of North Tyneside appeared on behalf of the Appellants (Respondents).
MISS ELIZABETH SLADE (instructed by Messrs Beachcroft Stanleys) appeared on behalf of the Intervener (The Local Government Management Board).
In this judgment I shall refer to the appellant as "the Council" and to the respondent as "the Auditor". By notice of motion dated the 19th February 1991, the auditor, who was duly pointed to audit the accounts of the Council, applied to the Divisional Court of the Queen's Bench Division under the Local Government Finance Act 1982 for the following relief:
"(1) A declaration that the items of account appearing within the accounts of the [Council] for the financial year 1990/1991 attributable to the making of enhanced severance payments under an Enhanced Voluntary Severance Scheme adopted by the Council at its meeting on 27th July 1990 are contrary to law;
(2) An order for rectification of the accounts;
(3) An order that the expenses incurred by the applicant in connection with this application be paid by the Council pursuant to section 19(5) of the said Act or such order as the court may think fit for payment of the Applicant's costs and expenses."
On the 22nd March 1991 Otton J. ordered that the following question be tried as a preliminary issue:
"Whether the Council of the Metropolitan Borough of North Tyneside would have had power by virtue of Sections 111 and 112 of the Local Government Act 1982 (assuming any such power was validly exercised) to make payments to persons it made redundant (under the "Enhanced Voluntary Severance Scheme" adopted by the Council at its meeting on July 27th 1990) in excess of those it was properly liable to make under Section 81 of the Employment Protection (Consolidation) Act 1978 and those it had power to make under the Superannuation Regulations 1986, the Local Government (Compensation for Premature Retirement) Regulations 1982 and Part II of the Local Government (Compensation for Redundancy and Premature Retirement) Regulations 1984."
On the 16th October 1991 the Divisional Court answered the question posed by the preliminary issue in the negative and, it being common ground that the consequence was that the auditor was entitled to the relief claimed, granted that relief. The Council now appeal to this court.
Although the question ordered to be tried as a preliminary issue refers to the Council's Voluntary Severance Scheme adopted on the 27th July it does so only in parenthesis. In my view rightly so. The issue between the parties is simply whether the Council has any power to make payments to persons made redundant in excess of those which it is obliged to make under section 81 of the Employment Protection (Consolidation) Act 1978 and those which it is obliged or empowered to make under the regulations referred to, which regulations were made under the Superannuation Act 1972.
The Council contend that it has such power by virtue of sections 112 and 111 of the Local Government Act 1972. I refer to them in that order because the primary submission of Mr. Goudie Q.C. for the Council is that the power exists by virtue of section 112 alone and that there is no need to resort to section 111.
Alternatively it is submitted that the power exists by virtue of section 111 coupled with section 112. In the further alternative it is submitted that the power exists by virtue of section 111 coupled with the functions of the Council under Part IX of the Local Government Act 1972.
At this stage it is convenient to set out the material provisions of the two sections:
" Subsidiary powers of local authorities
111(1) Without prejudice to any powers exercisable apart from this section but subject to the provisions of this Act and any other enactment passed before or after this Act, a local authority shall have power to do anything (whether or not involving the expenditure, borrowing or lending of money or the acquisition or disposal of any property or rights) which is calculated to facilitate, or is conducive or incidental to, the discharge of any of their functions.
Appointment of staff
112(1) Without prejudice to section 111 above but subject to the provisions of this Act, a local authority shall appoint such officers as they think necessary for the proper discharge by the authority of such of their or another authority's functions as fall to be discharged by them and the carrying out of any obligations incurred by them in connection with an agreement made by them in pursuance of section 113 below.
(2) An officer appointed under subsection (1) above shall hold office on such reasonable terms and conditions, including conditions as to remuneration, as the authority appointing him think fit."
From these provisions it can immediately be appreciated that the difference between Mr. Goudie's primary contention and his alternative contentions is that whereas the express duty to appoint under section 112 is subject only to the provisions of the Act itself, the powers conferred by section 111 are subject not only to the provisions of the Act itself but also to "any other enactment passed before or after this Act". It is accordingly submitted that if the power to make the disputed payments can be found in section 112 there can be no question of it being excluded or affected by any other Act or enactment.
Is the power to be found in section 112?
There is clearly no express power here to make payments of any sort to persons made redundant. There is an express duty to appoint and clearly, in subsection (2), power to fix the terms and conditions upon which an appointee shall hold office. But no more. It is submitted however that there must also be inherent power to dismiss and to fix terms for dismissal including terms for payment in the event that dismissal is on the ground of redundancy.
I am unable to accept this submission. In my judgment the power to do anything which is not expressly provided for by section 112 must be found, if it is to be found at all, in section 111. The power to make or provide for the making of redundancy payments may well be calculated to facilitate or be conducive or incidental to the discharge by a local authority of any of its functions but that is another matter to which I shall shortly turn.
Before passing to Mr. Goudie's alternatives I should however make it clear that although it was not argued that section 112 applies only to "officers" properly so called I have considerable doubts whether it can properly be construed to apply to all employees of a Local Authority.
Is the power to be found in section 111 coupled with section 112?
I can deal with this contention shortly. Its essence is that the express duty and power in section 112 is a function of a local authority and it is conducive etc. to the discharge of that function to make or agree to make redundancy payments. Further although section 111 is subject to the Act itself and any other enactment passed before or after the Act, section 112 is the dominant section. If the function itself is subject only to the Act then, notwithstanding the express words of section 111, the ancillary power conferred by it must also be subject only to the Act.
It appeared to me that this argument was, rightly, not pursued with much enthusiasm. With respect to Mr. Goudie I regard it as untenable. If resort must be made to section 111 it must be taken as it stands and by its express words the power conferred by it must be subject to both the Act and any other enactment passed before or after the Act.
Before turning to the final alternative I should say that in my judgment the word "functions" in section 111 is in that section plainly referring to the functions set out in Part IX of the Act which is headed "Functions". We were referred to authorities in which it has been given a wider meaning but in its context it cannot in my view be given any more extended meaning. Whether this is right or wrong, however, does not...
To continue reading
Request your trial
-
Newbold and Another v Leicester City Council
...to look at the legality of the scheme by the Divisional Court decision in Allsop v North Tyneside Metropolitan Borough CouncilUNKICR ((1991) 90 LGR 462) which was later affirmed by the Court of Appeal ((1992) ICR 639). The council, after taking counsel's advice, recalculated the payments to......
- Nicholls v Greenwhich London Borough Council
-
Westminster City Council v Haywood and Another
...was referred to the Court by the auditor. The case came before the Divisional Court on 16 October 1991 ( Allsop v North Tyneside MBC (1991) 90 LGR 462, 464). On a preliminary issue, the Divisional Court held that the local authority had no power under section 111 or section 112 of the Local......
-
The Queen v Broad District Council and Another
...was referred. In R v Eden District Council ex p Moffat (1988) Times November 24 (cited by Watkins LJ in Allsop v North Tyneside M.B.C. (1992) 90 LGR 462, 474–475) Nourse LJ said: "The functions of a local authority are not confined to the acts which they have a duty to perform. They include......