Welsh law update
Welsh law and policy update: recent developments
In a regular series of articles, Huw Pritchard will report on the latest developments in Welsh legislation, legal policy, and practice and procedure.
About the author
Dr Huw Pritchard is a lecturer in devolved law and governance with the Wales Governance Centre at Cardi› School of Law and Politics, Cardiff University.
The first landlord has been prosecuted for breaching Rent Smart Wales Compliance. The Housing (Wales) Act (H(W)A) 2014 introduced a new registration and licensing regime in Wales for buy-to-let landlords. The H(W)A requires all landlords to be registered with Rent Smart Wales and for landlords, or their agent, to be licensed to manage the property.
The prosecution followed an investigation by Newport City Council relating to offences regarding health and safety in the property and letting a house of multiple occupancy without the necessary licence. It was also discovered that the landlord, Robert Ivor Grovell, although registered with Rent Smart Wales, was not licensed to manage the property under the H(W) A. He was fined £4,400, ordered to pay £1000 costs and a victim surcharge of £170.
It was brought to general attention, following the decision in a case before the Residential Property Tribunal for Wales, Tovey v Rent Smart Wales RPT/0001/05/16, on 5 November 2016, in a licensing matter, that potentially a significant number of landlords would miss the 23 November 2016 deadline to apply for a licence under the Rent Smart Wales scheme. Rent Smart Wales has encouraged all landlords, who are not currently complying with the scheme, to come forward to avoid action against them.
After it initially failed to be passed by the last Assembly in 2016, the Public Health (Wales) Bill has returned in this Assembly term. The bill proposes a range of practical reforms that focus on prevention and protection in several areas. It is expected to be given royal assent by mid-June.
The headlines from the bill include important changes to the control of smoking in Wales as follows:
- It will restate the currently voluntary restriction on smoking in school grounds, hospital grounds and public playgrounds to assist enforcement.
- It will create a register of retailers of nicotine and tobacco products and strengthen enforcement by allowing Welsh Ministers to add to the offences that contribute toward a restricted premises order.
- A novel provision will prohibit the handing over of nicotine and tobacco products to persons under 18 by home delivery or collection services.
However, the restriction on e-cigarettes, which was a sticking point in relation to the original bill, has now been removed.
In addition, the bill provides for establishing a mandatory licensing scheme for special procedures, such as acupuncture, body piercings, electrolysis, and tattooing. It also prohibits intimate piercings for young people under 16.
Other provisions place responsibilities on public bodies to conduct health impact assessments in some circumstances, and for food authorities to retain the fixed penalty receipts resulting from offences under the Food Hygiene Rating (Wales) Act 2013.
The bill will also introduce changes for determining applications for the pharmaceutical list of Local Health Boards, so that any decision is based on the needs of the community rather than being driven by applications from pharmacies.
The first Act of this Assembly term, the Land Transaction Tax and Anti-avoidance of Devolved Taxes (Wales) Act (‘the Land Transaction Tax Act’) 2017, received royal assent in May 2017. The Land Transaction Tax Act will replace stamp duty land tax (SDLT) with a new land transaction tax (LTT), in Wales, from April 2018.
The Land Transaction Tax Act has added significance as it introduces the first tax following devolution of tax-raising powers under the Wales Act 2014 and, indeed, the first Welsh tax in almost 800 years. It is intended largely that LTT will be consistent with the corresponding SDLT to provide clarity and stability, but LTT will introduce a new and separate regime in Wales.
The Land Transaction Tax Act sets out the key principles and the transactions that incur the tax, the procedures for determining tax rates and bands, and the method for calculating LTT and reliefs. It is anticipated that the tax rates will be announced in autumn 2017 and will come into force in April 2018.
The new Welsh Revenue Authority (WRA) was established with responsibility for collecting and managing devolved taxes. The WRA was established under the Tax Collection and Management (Wales) Act 2016. Concern has been raised regarding a number of properties that are partly in Wales and partly in England. Under the provisions, such properties will be classed as two separate transactions, liable for LTT in Wales and the corresponding SDLT in England. Such a transaction would be apportioned on ‘a just and reasonable basis’, and the WRA must publish guidance about such transactions and identify the location of the border.
A significant health and social care case, R (Cardiff & Vale University Health Board and others) v Ceredigion County Council and others UKSC 2016/0054, was heard by the Supreme Court in April. 'Funded Nursing Care' is funded through the NHS Local Health Boards (LHB), and provides nursing services to patients in care homes who require some, but not full time, nursing care. Furthermore, in Wales, under Care Homes (Wales) Regulations 2002 SI No 324 (W.37), it is a requirement to have a qualified registered nurse in a care home at all times. Welsh LHBs provided a flat rate to care homes to cover patients who required some level of nursing care. The dispute involves whether local authorities are liable for some proportion of the cost, when the registered nurse is conducting services which are not classified as nursing services for the purposes of section 49 of the Health and Social Care Act 2001.
The High Court held that LHBs are liable for the full cost of the nursing provision in care homes as they had erred in taking a ‘task-based approach’, which only funded nursing care tasks when determining the rate ([2015] EWHC 601 (Admin)).
However, the Court of Appeal overturned this decision by a two to one judgment ([2016] EWCA Civ 26). The court held that a task-based approach was lawful, and that section 49(2) required a distinction between clinical services which required a registered nurse and services of a social or personal nature. The Supreme Court judgment is expected in the autumn.
