R (Hajrula) v London Councils
| Jurisdiction | England & Wales |
| Judgment Date | 28 January 2011 |
| Neutral Citation | [2011] EWHC 448 (Admin) |
| Docket Number | CO/11886/2010 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 28 January 2011 |
[2011] EWHC 448 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Before: MR JUSTICE CALVERT-SMITH
CO/11886/2010
MISS H MOUNTFIELD QC & MISS A MCCOLGAN appeared on behalf of the Claimant
MR J COPPEL (instructed by THE CITY OF LONDON CORPORATION) appeared on behalf of the Defendant
(As Approved)
MR JUSTICE CALVERT SMITH: This is an application for judicial review by Zanepa Hajrula and Mura Hamza, who are users of a service provided by the Roma Support Group. That service is funded by the defendant and the challenge is to the decision of the defendant to cut the funding of the Roma Support Group as from 30 June 2011. The Roma Support Group supports the children of Roma and travellers, in particular in education.
The defendant is a body created by the London Boroughs and the City of London pursuant to powers under the Local Government Act 1972 and the Local Government Act 1995. It permitted the Boroughs and the City to set up a scheme for the making of grants to voluntary organisations whose activities "will directly or indirectly benefit the whole of Greater London or any part of it extending beyond the area of any particular constituent council." The scheme does not involve any delegation of authority by its members to fund particular types of service and member authorities retain their own powers to fund voluntary action in their own areas or to cooperate with others for the same purpose.
The funding in this case of the Roma Support Group ("RSG") was brought into force following a change in the scheme by the defendant over 2005 and 2006 and this particular funding runs from 1 November 2007 to 31 October 2011. Although the funding was said to be for four years, the terms were that it could be withdrawn or reduced on the basis either of poor performance or lack of funds.
Either in late 2009 and certainly by early 2010 the defendant decided that a review of the scheme was necessary owing principally to the difficult financial situation of which we all are aware. In short, ways had to be found to reduce the defendant's budget.
During the course of 2009 the constituent Boroughs, or many of them, were pressing for a number of services in respect of which the defendant had awarded funding by way of a levy on them to be taken away from the defendant so that individual Boroughs could decide on and fund themselves such services as they wished to provide for their residents. The defendant is funded by a levy on the constituent boroughs calculated pro rata by population.
Because of these concerns, the defendant embarked upon two parallel but closely linked processes. First, a review of the scope of the of the defendant's activities, and secondly a review of the currently commissioned services, ie the ones brought in under the 2005 and 2006 scheme. A mechanism was sought for deciding which services currently funded by defendant could be, in the term used throughout the papers, "repatriated", so that individual boroughs could decide for themselves.
It is accepted on all sides as a background to the case that in the current financial climate all public spending must be closely scrutinised to see whether it is necessary, and even if it is, whether it can be reduced by efficiency savings and the like. It is accepted on all sides that in attempting to carry out these two tasks, the defendant carried out consultations internally in one instance and both internally and externally in the other. It is also common ground that in doing so it had some regard to its duties under the three Acts of Parliament which prohibit discrimination and in particular create public service equality duties: the Race Relations Act 1976, the Sex Discrimination Act 1975 and the Disability Discrimination Act 2005.
The claim makes two allegations which are split into sub-heads: first, that the consultation was not lawful, and second that the regard paid to its public service equality uses was so insufficient that on either or both grounds the decision of the Council to recharacterise the claimant and others as organisations which should not qualify for funding by the defendant and to terminate such funding from 30 June 2011, and to set a budget which reflected that decision were unlawful.
In November 2009 the defendant undertook a scoping consultation which was designed to begin the process of prioritising services. As far as the claimant organisation, the RSG, was concerned, the result of that scoping consultation was that the service head under which the work done by the RSG was characterised —which was numbered 19 —was listed number 4 of 61 in order of priority.
The scoping consultation was presented to a meeting of the Grants Executive of the defendant on 24 March 2010. The report asked the Grants Executive to consider the issues raised "and give any thoughts, views or thoughts to help inform and steer the incoming administration concerning the 2011 —2015 programme proprieties" and in its recommendations it asks the Grants Executive to consider the issues raised and give any thoughts, views or comments to help inform and steer the incoming administration and to agree that officers proceed to draw up and consult on the contents and specification of the each of the prospective services for initial consideration by the new administration in June/July 2010. There was, of course, an election in May and it was, of course, only natural for the matters to be put on hold until the new landscape was clearer.
On 14 July 2010 the Grants Committee met and considered another report entitled "review of future role and scope of London Boroughs Grant Scheme," compiled by Nick Lester and Ian Redding. The report informed the reader that the Leaders Committee, which is the ultimate decision making body of the defendant, had, at its Annual General Meeting on 8 June 2010 announced the need to "review the Grants Scheme with a view to establish the degree to which services are now more appropriately delivered at a local level. It is anticipated that this would lead to a significant repatriation of the programme to boroughs" and the report presented the members of the Grant Committee with details of the existing programme and an initial indication of the degree to which currently commissioned services could be considered for local commissioning.
Although there had been different ways of organising the scheme operated by the defendant over the years, the current scheme in 2010 involved 69 service heads, within which one or more provider would provide the service. At paragraph 8 of the report it reads:
"It was suggested to the Executive that the review covers the following issues: the scope for repatriating current areas of activities from the existing grants programme to boroughs and sub-regional scope groupings. The scope for a residual London-wide grants programme together with budget and priorities for this, and the timetable and processes to achieve change."
It then went on to set out what it described as its initial categorisation exercise and it divided the 69 service heads into three:
"(a) those where there is a strong argument for services to be carried out at a London-wide level where it is unlikely that work could reasonably be undertaken at a local level;
(b) those which could be undertaken by a group of authorities, perhaps at a sub-regional level, but where it would be difficult or possibly unrealistic to carry out at a local level.
(c) those which essentially appear to be local, but are currently commissioned on a pan-London basis for one or more of the following reasons:
(i) economies of scale.
(ii) cross-borough pattern of service users.
(iii) services uneconomic at single borough level.
(iv) services where a common and/or consistent approach are of key importance.
The ability of individual boroughs to commission these services economically at the borough level could be the significant factor in determining whether these services will continue to either viable or remain a priority at a local level."
It went on to indicate what the budgetary implications would be if the initial characterisation of service heads at (a), (b) and (c) were carried out.
At paragraph 17 it said this:
"This is of course only one way to address the issue of repatriation and is just an illustration based on the existing programme, leaving open the question of scale of and priorities for any future London-wide activity. However, the analysis when completed does provide a starting point for any future consideration and public consultation before decisions are made in November and December."
At 18, it reads:
"However members decide they wish to progress the review, the legal advice is that consultation with the third sector and in particular those organisations currently commissioned is required. This is not just to ensure that consultation is compliant with the terms of the contract, but also because given the nature of the services funded by the Grants Committee and the target clients groups it is likely that changes in priorities for commissioning and/or the way they are commissioned, (London-wide, local, etcetera) will have an impact on particular authority schemes. Consequently, qualities impact assessment will be necessary not just in terms of services that continue to be commissioned at London Councils, but also for those that will then pass to boroughs for them to prioritise and commission."
Following that meeting letters were sent to providers, including...
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