Angharad Morris and Another v Rhondda Cynon Taf County Borough Council
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Patterson |
| Judgment Date | 18 May 2015 |
| Neutral Citation | [2015] EWHC 1403 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/212/2015 |
| Date | 18 May 2015 |
[2015] EWHC 1403 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT CARDIFF
Royal Courts of Justice
Strand, London, WC2A 2LL
The Honourable Mrs Justice Patterson DBE
Case No: CO/212/2015
THE QUEEN on the application of
Nigel Giffin QC and Joanne Clement (instructed by Bindmans LLP) for the Claimants
James Goudie QC and Julian Milford (instructed by Rhondda Cynon Taf County Borough Council) for the Defendant
Hearing dates: 20–21 April 2015
Introduction
On 12 February 2015 the Cabinet of Rhondda Cynon Taf County Borough Council (the defendant) decided that the funding of nursery education within its district would change. For many years the Council has provided full time nursery education free of charge. As a result of austerity measures the defendant carried out a comprehensive review of its services and determined that, as from September 2015, full time nursery education for children from the age of three free of charge would cease to be available.
The claimants are two mothers who are affected by the decision. They each have a child who, without the decision taken, would have started full time nursery education after they had attained the age of three years old.
The defendant is the Local Authority for the area of the Rhondda Valleys, Cynon Valley and Taf Ely. It is one of the more deprived areas in Wales and within the European Union (EU).
The decision in February 2015 means that the defendant will implement changed arrangements for nursery education as follows. From the school term after a child reaches the age of three, part time nursery education of up to fifteen hours a week will be available from September 2015. From the term after a child reaches the age of four, full time nursery education free of charge remains available. One consequence of the loss of full time nursery provision will be the termination of free school transport for the children concerned. It is estimated that the decision affects in excess of 3,300 children and their families.
On 8 January 2014 the defendant made a similar decision in relation to the 2014/15 academic year. That decision was challenged by way of judicial review and was declared to be unlawful in R (West) v Rhondda Cynon Taf County Borough Council [2014] ELR 396. The decision was quashed on 23 May 2014. Supperstone J held that the councillors took the decision when they had not been provided with a proper account of the Council's statutory duties nor had the material required to enable them to effect a proper discharge of their statutory duties.
On 10 October 2014 the defendant resolved to consult on a similar proposal in respect of the 2015/16 academic year. The consultation started on 21 October 2014 and was due to end on 16 December 2014. On that date the defendant decided to publish additional information and extend the consultation period until 30 January 2015. That was to take into account the Supreme Court decision in R (Moseley) v Haringey London Borough Council [2014] 1 WLR 3947.
Proceedings were commenced by the claimants on 16 January 2015. On 12 February 2015 the Cabinet made the impugned decision. In the light of the officer report and the Cabinet decision the grounds of claim were amended. Permission to amend was granted in a consent order made by HHJ Cotter QC. He ordered a rolled-up hearing. That is how the case comes before the court.
There are two grounds of challenge:
i) Whether the consultation carried out was inadequate? The main issue is whether, when an authority proposes to cut a service to the public it can do so fairly without providing information about alternatives. In addition, it is contended that:
a) The information provided by the defendant in the consultation was insufficiently fair and accurate;
b) The information provided was flawed because it excluded any reference to the transport consequences of the decision.
ii) Whether the defendant is in breach of its duty under section 22 of the Childcare Act 2006 to secure sufficient childcare for working parents?
Factual Background
In common with many authorities the defendant faces substantial financial issues. Supperstone J set out the background to the case before him during 2013/14. I do not repeat his summary of matters then. His judgment should be referred to for a more extensive background of matters up to the time that the case came before him.
On 10 October 2014 a joint report of the Director of Education and Lifelong Learning, Group Director Corporate Services and Group Director Community and Children Services was taken to Cabinet. It provided, amongst other matters, an update on the outcome of the earlier judicial review of funding for provision of nursery education as part of the Phase One service changes.
The report recorded that, on 26 February 2014, the defendant had approved the 2014/15 revenue budget strategy. That was a response to the decrease in Welsh Government funding of -3.7% for 2014/15. The defendant's strategy was to deliver a balanced budget for 2014/15. After a council tax increase of 4.5% for 2014/15 the budget gap of £14.4 million was to be addressed by:
• The delivery of £4 million of efficiency savings (excluding schools);
• The delivery of agreed Phase One service changes/cuts totalling £5.2 million (as approved by Cabinet on 8 January 2014);
• Use of £5.2 million 'Medium Term Financial Planning and Service Transformation Reserve'.
At the time of the February 2014 Council meeting the estimated budget gap over the four years from 2014/15 to 2017/18 was £63.4 million. The defendant continued to have difficult budgetary decisions to make, and, on 14 May 2014, following consultation, the Cabinet approved a number of Phase Two service changes which produced savings of the order of £2.7 million a year.
By late summer 2014 the defendant's financial position had deteriorated further. In October 2014 the budget gap over the three financial years from 2015/16 to 2017/18 was estimated to be £70.7 million with an initial 2015/16 gap totalling £31.2 million. Further service cuts and efficiency savings were agreed making overall savings of £4 million.
Given the size of the budget gap and the time scale requirements for implementation of service changes the Cabinet agreed to receive reports on potential service changes and proposals for cuts as soon as they became available. There was a need to balance an estimated remaining gap of more than £23 million (after the implementation of Phase Two service change proposals, the decision taken in respect of leisure services and the planned delivery of £4 million efficiencies) for 2015/16.
The 10 October 2014 report then considered the position on nursery education. It recorded that the defendant had a duty to secure nursery education sufficient for its area. Guidance published by the former Welsh Office in 1999/2000 had not been superseded: that made it clear that the target was to provide "free, at least half time, good quality" nursery education. "Half time" meant a minimum of ten hours a week for around the same number of weeks as the normal school year.
In addition, the Cabinet was reminded that it had a duty under section 22 of the Childcare Act 2006 to:
"Secure so far as is reasonably practicable, that the provision of childcare (whether or not by it) is sufficient to meet the requirements of parents in their area who require childcare in order to enable them: (a) to take up or remain in work; or (b) to undertake education or training which could reasonably be expected to assist them to obtain work."
The duties under the 2006 Act required the Council to shape and support the development of childcare provision in its area so as to make it flexible, sustainable and responsive to the needs of the community. The intention was to ensure that parents were able to access childcare locally that met their needs and enabled them to have real choice about work.
The report continued that the effect of the wording "reasonably practicable" within the 2006 Act was to allow the Council to take into account its resources and capabilities in making decisions about when to intervene to address gaps in the childcare market.
As part of its duty, a Childcare Sufficiency Audit ( CSA) was completed. That was carried out on a triennial basis, complemented by an annual refresh. On 23 June 2014 Cabinet agreed the Council's CSA triennial plan for 2014 to 2017. The outcomes were said to be critical for the forward planning of childcare, workforce development and Flying Start Services. A Childcare Development Delivery plan for 2014/15 was also agreed.
The current funding arrangements for nursery provision were set out, together with an initial long list of options for change to enable cost savings to be realised to assist in closing the budget gap. The full list was as follows:
"1. Status Quo
2. Full time the term after the child's 3 rd Birthday
3. Part time (half day) the term after the child's 3 rd birthday and Full time Nursery
4. Part time (half-day) the term after the child's 3 rd birthday and Part time (half-day) Nursery and Full time Reception
4a. Option 4 plus 50% play facility funded by the Council
4b. Option 4 plus 50% play facility chargeable to the parent
5. Part time (half-day) the term after the child's 3 rd birthday and full time the term after the child's 4 th birthday
6. Part time (half-day) the term after the child's 3 rd birthday, part time (half-day)...
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