Hunt v North Somerset Council
| Jurisdiction | England & Wales |
| Judge | Lady Hale,Lord Hughes,Lord Toulson,Lord Reed,Lord Wilson |
| Judgment Date | 22 July 2015 |
| Neutral Citation | [2015] UKSC 51 |
| Date | 22 July 2015 |
| Court | Supreme Court |
Lady Hale, Deputy President
Lord Wilson
Lord Reed
Lord Hughes
Lord Toulson
Appellant
David Wolfe QC Aileen McColgan
(Instructed by Public Interest Lawyers)
Respondent
Nigel Giffin QC Jane Oldham
(Instructed by North Somerset Legal Services)
Heard on 29 April 2015
(with whom Lady Hale, Lord Wilson, Lord Reed and Lord Hughes agree)
The appellant brought a claim for judicial review of a decision of the respondent, on 21 February 2012, to approve a Revenue Budget for 2012/13 in relation to the provision of youth services. In his claim form he applied for declarations that the respondent had failed to comply with section 149 of the Equality Act 2010 and section 507B of the Education Act 1996 and for an order quashing the decision to approve the budget.
The claim was dismissed at first instance (Wyn Williams J) and the appellant was ordered to pay the respondent's costs, subject to a proviso against enforcement of the order without further permission of the court. He obtained limited permission to appeal on two grounds. The Court of Appeal (Moore-Bick, Rimer and Underhill LJJ) decided the two substantive issues in his favour but did not grant him any relief, dismissed his appeal and ordered him to pay half of the respondent's costs of the appeal. This appeal is about the form of the Court of Appeal's disposal of the matter. The appellant submits that since the court held that the respondent had failed in its statutory obligations, it should have made a declaration to that effect and should have made an order for costs in his favour.
The underlying facts and issues are set out in the very thorough judgment of Wyn Williams J, [2012] EWHC 1928 (Admin), and recapitulated, so far as was necessary, in the judgment of the Court of Appeal delivered by Rimer LJ, [2013] EWCA Civ 1320. For present purposes a briefer outline will be sufficient.
The appellant was born on 17 April 1991. He suffers from ADHD and has other difficulties. He was therefore a "qualifying young person" within the meaning of section 507B of the 1996 Act, which required the respondent, so far as reasonably practicable, to secure access for him to sufficient educational and recreational leisure-time activities for the improvement of his well-being. Section 507B(9)(b) required the respondent in exercising its functions under that section to "secure that the views of qualifying young persons in the authority's area are taken into account".
The appellant's disability was also a protected characteristic which brought into play, in relation to him, the public sector equality duty ("PSED") contained in section 149 of the 2010 Act. The section required the respondent to "have due regard" to the statutory equality needs in the exercise of its functions.
By its decision on 21 February 2012 the respondent approved a reduction in its youth services budget for 2012/13 of £364,793. The appellant was concerned about the impact which this was likely to have on the provision of services for young persons with disabilities and, in particular, on a weekly youth club for vulnerable young people which he used to attend.
At first instance wide ranging criticisms were made of the way in which the respondent had reached its decision. They were all rejected. At the end of the hearing and before giving judgment, the judge asked counsel for written submissions on relief if he found that there had been illegality. The note on relief provided by Mr David Wolfe QC and Ms Aileen McColgan on behalf of the appellant stated that he asked for a quashing order. No mention was made of alternative relief in the form of a declaration. Ms Jane Oldham noted the omission in her response on behalf of the respondent, observing that "… it appears that no declaratory relief is sought and D takes it that the claim for declaratory relief [in the claim form] is abandoned, since otherwise C would, in response to the request of Wyn Williams J, have set out the terms of any declaratory relief sought". Mr Wolfe and Ms McColgan provided a written reply which again made no reference to asking for declaratory relief.
In view of the judge's rejection of the challenges to the legality of the respondent's approval of the budget, the question of relief did not arise for decision, but the judge rejected an argument by the respondent that the provisions of the Local Government Finance Act 1992 would have prevented him from quashing the decision to approve the budget. He said that if he had been persuaded that the respondent had acted unlawfully, it would have been open to him to grant any remedy which was appropriate.
The grounds on which the appellant was given leave to appeal were that the respondent had failed in its equality duty (PSED) under section 149, because although equality impact assessments ("EIAs") had been carried out relating to the impact of the budgetary cuts, the EIAs had not been provided to the members who took the decision (and the judge had been wrong to infer that the members had read them merely because they had been told how they could be accessed); and that it had failed in its consultation duty under section 507B(9)(b) because there was no evidence of consultation with young people before making the decision to cut the budget (as distinct from meetings with management committees of young people's organisations to explain to them where the axe would fall). These grounds were developed in the appellant's skeleton arguments in the Court of Appeal. As to relief, it was submitted that the decision under challenge should be quashed. No alternative submission was made about declaratory relief.
The judgment of the Court of Appeal was given on 6 November 2013. The court upheld the appellant's argument under section 149. It expressed some doubt about whether section 507B(9) was applicable, but this was not disputed by the respondent. Accordingly the court proceeded on the assumption (but without deciding) that the section was applicable, and on that assumption it upheld the appellant's argument. However, the court refused to make the quashing order which was sought. Rimer LJ said that although in theory a quashing order could be made, the court could not see how this could be done without quashing the respondent's decision to approve the entire revenue budget for the financial year 2012/13, which had expired nearly three months before the appeal was heard. He concluded:
"94. … It is now too late to unwind what has been done. … Judicial review is a discretionary remedy and, even though we have accepted the substantive points which Mr Hunt has advanced, we are of the firm view that...
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