R Clarke v Birmingham City Council
| Jurisdiction | England & Wales |
| Judge | The Lord Burnett of Maldon CJ |
| Judgment Date | 06 November 2020 |
| Neutral Citation | [2020] EWCA Civ 1466 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: C1/2019/1881 |
| Date | 06 November 2020 |
[2020] EWCA Civ 1466
THE RT HON The Lord Burnett of Maldon
LORD CHIEF JUSTICE OF ENGLAND AND WALES
THE RT HON Lord Justice Coulson
and
THE RT HON Lady Justice Carr DBE
Case No: C1/2019/1881
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
BIRMINGHAM DISTRICT REGISTRY
His Honour Judge David Cooke (sitting as a Judge of the High Court)
CO/2600/2018
Royal Courts of Justice
Strand, London, WC2A 2LL
The Appellant appeared in person and was not represented
Mr Jonathan Manning and Mr Gavin McLeod (instructed by Birmingham Legal and Governance Department) for the Respondent
Hearing date: 21 October 2020
Approved Judgment
Introduction
This is the judgment of the court to which we have all contributed.
The issue for decision in this appeal is whether Birmingham City Council failed to take account of legally relevant matters when on 24 May 2018 it confirmed its decision to retrofit sprinklers in its tower blocks following the fire at Grenfell Tower in London.
The appellant, Mr Robin Clarke lives on the 20th (top) floor of a tower block owned by the respondent, Birmingham City Council. He appeals against the order of HHJ David Cooke (sitting as a Deputy High Court Judge) dated 4 July 2019 dismissing his claim for judicial review of a decision by the Council's Cabinet taken on 24 May 2018 (“the May 2018 Decision”): [2019] EWHC 1728 (Admin). By that Decision the Cabinet confirmed its earlier decision of 27 March 2018 approving an amended capital investment budget that included provision of some £19m (out of anticipated total expenditure of £31m over three years) to fund the retrofitting of sprinkler systems to all tower blocks owned by the Council (“the March 2018 Decision”). The decisions in 2018 followed a decision taken by the Cabinet on 27 June 2017 in principle to install such systems in the wake of the Grenfell Tower fire (“the June 2017 Decision”).
Mr Clarke considers that the decision to fit sprinklers is a waste of public money that could be better spent elsewhere. He believes that the improvement in safety does not justify the expense and what he sees as other disadvantages, especially disruption to tenants. He complains that the Council has not investigated in any detail whether or not its tower blocks are subject to any material risk of catastrophic fire, sufficient to justify the cost of an additional contribution to reduction of risk of such a fire that might be achieved by fitting sprinklers (“the value for money issue”). In his view, the decision to fit sprinklers was a panic response by politicians, keen to be seen to be doing something in response to the tragedy at Grenfell Tower. A more considered evaluation would have shown that the fitting of sprinklers was not necessary or justified.
The sole issue before us is whether, in reaching the May 2018 Decision the Cabinet unlawfully failed to take into account:
a) the value for money issue;
b) certain additional specific matters identified by Mr Clarke.
At the commencement of the appeal hearing, Mr Clarke applied for permission to rely on his witness statement dated 3 July 2020. We dismissed that application. The witness statement was materially identical to an earlier statement for which permission to rely had been refused by Phillips LJ. Like that earlier application, it satisfied none of the tests applicable to introducing fresh evidence in an appeal and additionally was an abuse of process.
The relevant facts in summary
The relevant facts are set out at [4] to [7] of the judgment below. We do not need to repeat them in any detail for present purposes. The key timeline is as follows:
i) On 27 June 2017, just under a fortnight after the fire at Grenfell Tower, a public 12-page report was presented to the Cabinet setting out a proposed response. The Council's Director of Housing summarised existing fire protection measures and risk evaluation procedures at Birmingham's tower blocks. It recommended that the Cabinet note and endorse the addition of water sprinkler systems in tower blocks through a rolling programme of sprinkler installation and fire prevention measures from capital receipts (and whether or not the Government was willing to pay). It referred to expert consideration by the Fire Brigade. The Cabinet endorsed the action referred to in the report;
ii) On 27 February 2018 the Council adopted a revised overall budget for the financial year 2018/2019 including provision for that year's element of the total spending of £31 million on sprinkler installation;
iii) On 27 March 2018 the Cabinet approved a revised capital investment budget to include the additional spending, noting that this involved an increase in the budgeted expenditure of the 2017–2018 financial year of some £7.2 million;
iv) Two members of the Housing and Homes Overview and Scrutiny Committee requested a call-in of the March 2018 Decision. That is a procedure under which the Scrutiny Committee reviews a Cabinet decision and can require it to be reconsidered by the Cabinet. The Scrutiny Committee acceded to that request and referred back to the Cabinet in the following terms:
“3.1 The Committee resolved to call in the decision for reconsideration by Cabinet on the grounds that: 5. The Executive appears to have overlooked some relevant consideration in arriving at its decision.
3.2 The Committee therefore formally asks the Cabinet to reconsider its decision; in particular that Cabinet carefully considers all the information and evidence available to assure itself that this large expenditure is wholly justified. An alternative approach might be to consider each case individually, and ensure each tower block has its own particular needs met in terms of safety and saving lives.”;
The reference to ‘some relevant consideration’ does not confine itself to legally relevant considerations.
v) On 24 May 2018 the Cabinet met and considered the Scrutiny Committee's request with the benefit of a six-page “Executive response to “Call In” of the [March 2018 Decision]” accompanied by background papers (“the Executive Response”). There was then a public discussion at the conclusion of which the Cabinet unanimously resolved to confirm the March 2018 Decision.
The judgment below
In addition to the alleged failure to take into account legally relevant matters, Mr Clarke also challenged the decision on the basis of inadequate reasons. He had been refused permission to challenge the decision itself as irrational. His second ground is not the subject of an appeal. The Judge concluded that the proposition that the Council was obliged as a matter of law to enter into a more detailed analysis before proceeding to approve the budgeted expenditure was unsustainable. The Cabinet addressed the question asked of it by the Scrutiny Committee. It was entitled to decide, as it did, against further delay. As for a suggested failure on the part of Cabinet to give adequate reasons, it was doubtful that there was any obligation at all to provide reasons but in any event sufficient reasons could be identified. He dismissed Mr Clarke's challenge.
Discussion
We have referred above to various decisions taken by the Cabinet before the May 2018 Decision as “decisions”. Mr Clarke does not accept that the June 2017 Decision was a formal (as opposed to an informal) decision to proceed with the retrofitting works. He submits that all that the Cabinet was doing by the June 2017 Decision was noting the proposal for the retrofitting works. Like the Judge, we consider it to be clear that the June 2017 Decision was a formal decision. That did not prevent further discussion on the merits and value of the proposed expenditure or, most relevantly, mean that there should not be proper consideration of the Scrutiny Committee's request following the call-in. However, in assessing the adequacy of that consideration, the earlier decisions are relevant context to the question of whether or not there was an unlawful failure to take relevant matters into account. The in-principle decision to retrofit the sprinklers had been taken almost a year before the May 2018 Decision, and the budgetary and accounting formalities required to accommodate the installation programme had all been completed. It was not therefore necessary for all those matters to be repeated in the May 2018 Decision.
It is not incumbent on a decision maker to take account of all arguments that might be raised for and against a decision. As the Judge said (at [22]) it is generally for a decision maker to determine what matters are potentially relevant to be considered and what weight is to be given to each of them. In particular, it is part of Mr Clarke's complaint that the Cabinet failed to consider and discuss all the various points he thought told against the various decisions. There was no legal obligation to do so.
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