Mary West and Others v Rhondda Cynon Taff County Borough Council
| Jurisdiction | England & Wales |
| Judge | Mr Justice Supperstone |
| Judgment Date | 23 May 2014 |
| Neutral Citation | [2014] EWHC 2134 (Admin) |
| Docket Number | CO/1240/2014 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 23 May 2014 |
[2014] EWHC 2134 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Royal Courts of Justice
Strand
London WC2A 2LL
Mr Justice Supperstone
CO/1240/2014
The Queen on the Application of
Mr N Griffin QC and Miss J Clement (instructed by Bindmans) appeared on behalf of the Claimants
Mr J Goudie QC and Mr J Milford (instructed by Rhondda Cynon Taff) appeared on behalf of the Defendant
Hearing dates: 19 to 20 May at Cardiff Civil Justice Centre
Introduction
The Claimants challenge the decision of the Defendant council to cease funding full time nursery education for three-year-olds from September 2014, the start of the next academic year.
For many years the Council has provided full-time nursery education free of charge. However, on 8 January 2014, the Council's cabinet decided that the nursery arrangements would be changed from September 2014 so that part-time nursery education of up to only 15 hours a week would be provided from the term after a child's third birthday; and full-time provision would not be provided until the term after a child's fourth birthday. The loss of this full-time provision will also result in the termination of free school meals and free school transport for the children concerned. It is estimated that the decision affects in excess of 3,300 children and their families.
The Cabinet's decision was "called in" for consideration by the Education and Lifelong Learning Scrutiny Committee. On 20 January the Scrutiny Committee resolved not to refer the decision back to the Cabinet for reconsideration and that the decision should take effect as from 20 January 2014.
On 17 April, HHJ Jarman QC ordered that this claim be listed for a "rolled up" hearing.
The Factual Background
On 22 July 2013, the Council's Director for Corporate Services reported to Cabinet that the Council faced a very substantial budget gap over the four years from 2014/15 to 2017/18. The report stated that the Council faced "an unprecedented challenge over the next four to five years to deliver a balanced budget strategy". The funding gap has now been assessed at £63.4 million. The Cabinet resolved on 22 July 2013 that "reports be presented to Cabinet on service change options as soon as they become available".
On 21 October, the Council's corporate management team reported to Cabinet on a number of service change proposals to meet the Council's budgetary difficulties. The report included ten different proposals regarding nursery education, whose advantages and disadvantages were analysed, including a preferred proposal to fund three hours' education per day rather than full-time education, for three and four year-olds until the September after a child's fourth birthday. It was estimated that the proposal would save £4.4 million in a full year.
The Cabinet resolved on 21 October to initiate consultation on the proposal and various other service change proposals concerning meals on wheels, libraries, youth provision and day centres. The consultation exercise took place between 4 November and 2 December 2013. An 84-page consultation pack was produced which included detailed information about each of the proposals. Over 6,000 consultation responses were received. Thereafter, a 58 day page consultation report was drawn up on the basis of the responses, summarising views on all the proposals.
An Equality Impact Assessment was published for each of the proposals on 18 December 2013.
The Cabinet met to consider the proposals on 8 January 2014. Before the Cabinet members took the decision, they had "access" to the consultation responses which relevant members spent time "viewing". (See first witness statement of Mr Bradshaw, the Council's Director of Education and Lifelong Learning, paragraphs 35 to 40).
Before the meeting all Cabinet members were provided with a report of 21 October 2013, the consultation report and the EIA.
The Cabinet decided to amend the proposal. The decision it made is recorded in the following terms:
"That the implementation be delayed until September 2014, thereby not disrupting existing full-time attendance during the academic year and giving parents and careers more time to make any amended child care arrangements prior to the start of the September term. Also to provide full-time education from the term after a child's fourth birthday rather than from the September after a child's fourth birthday as originally proposed. This will produce savings in a full year of £3.7 million."
In the 2014/15 financial year, because the decision will not be implemented until September 2014, the anticipated savings will be £2.7 million (see Mr Bradshaw's second witness statement, paragraph 14).
Three Council members called in the decision. On 20 January 2014, as I have said, the Council's Scrutiny Committee resolved not to refer the decision back to the Cabinet for reconsideration.
On 26 February, the 2014/15 revenue budget proposed by the Cabinet was approved at a meeting of the full Council.
Primary schools in the Council's area received their formula budget allocations on 4 March, they are required to set budgets to the 2014/15 financial year by 31 May.
The Council is aware of the budget decisions taken by 98 of the 108 primary schools affected. Of those, 59, approximately 60 per cent, intend to continue to offer free full-time education for three-year-olds in the 2014/15 school year. The Council objected in their acknowledgement of service to the standing of first two Claimants on the grounds their school was going to continue to offer full-time nursery provision for three-year-olds. Two further claimants; Ms Webb and Ms Thomas, who have children attending schools that are offering only part-time nursery education were therefore added as claimants to the proceedings. Mr James Goudie QC, for the Council, confirmed that standing is not now a live issue.
The Legal Framework
(1) A duty to provide sufficient nursery education:
Section 118(1) of the School Standards and Framework Act 1998 provides that:
"A local education authority in Wales shall secure that the provision (whether or not by them) of nursery education for children who—
(a) have not obtained compulsory school age, but
(b) have attained such age as may be prescribed is sufficient for their area."
The Education (Nursery Education and Early Years Development and Childcare Plan (Wales) Regulations 2003 (as amended) provide that the prescribed age shall be the term after a child's third birthday.
Section 118(2) of the 1998 Act provides, so far as relevant, that:
"In determining for the purposes of sub-section (1) whether the provision of such education is sufficient for their area a local authority—
(b) shall have regard to any guidance given from time to time by the National Assembly for Wales."
The relevant guidance is Welsh Office Circular 7/99. Under the heading "Statutory duty on local authorities to secure provision" paragraph 3.7 states:
"The Government's guiding principles for early years education continue to be.
Targets
The provision of a free, at least half-time, good quality, education place during the three terms before the start of compulsory education for every four-year-old whose parents want this. It should be as accessible as possible to the child's home. Half time means a minimum of ten hours a week for around the same number of weeks as the normal school year. This has already been achieved in Wales from September 1998.
Securing provision
Integration of early years education with childcare, in line with local childcare strategies and childcare plans, to meet the needs of children and their parents."
The guidance refers to the year 1999–2000, and therefore on a literal reading it is inapplicable. However the Council regards the guidance as continuing from year to year and for "four-year-old" one should now read "three-year-old".
(2) The Childcare Act 2006:
Section 22(1) of the Childcare Act 2006 provides that:
"A Welsh local authority must secure, so far as is reasonably practicable, that the provision of childcare (whether or not by them) 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 duty under section 22(1) applies to anyone under the age of 14. Section 22(2) further provides that:
"In determining for the purposes of sub-section (1) whether the provision of childcare is sufficient to meet those requirements, a local authority—
(a) must have regard to the needs of parents in their area for—
(i) the provision of childcare in respect of which the childcare element of working tax credit is payable,
( ia) the provision of childcare in respect of which an amount in respect of childcare costs may be included under section 12 of the Welfare Reform Act 2012 in the calculation of universal credit
(ii) the provision of childcare which is suitable for disabled children, and
(iii) the provision of childcare involving the use of the Welsh language…"
Section 22(3) requires a local authority in discharging its duty under sub-section (1) to have regard to any guidance given from time to time by the Assembly. The relevant guidance is 013/2008, paragraph 2.7 of which states that:
"To...
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R Claire Dyer (by her mother and litigation friend Catherine Dyer) v The Welsh Ministers and Others Aneurin Bevan University Health Board and Others (Interested Parties)
...1977 Act"), which is in similar terms to section 3(1) of the 2006 Act), and R (West) v Rhondda Cynon Taff County Borough Council [2014] EWHC 2134 (Admin) at [44] per Supperstone J (which concerned section 118 of the School Standards and Framework Act 1998, which requires a local education a......