R (on the application of DAT (by his mother and litigation friend) and another) v West Berkshire Council
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Elisabeth Laing DBE |
| Judgment Date | 22 July 2016 |
| Neutral Citation | [2016] EWHC 1876 (Admin) |
| Docket Number | Case No: CO/2204/2016 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 22 July 2016 |
[2016] EWHC 1876 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
The Honourable Mrs Justice Elisabeth Laing DBE
Case No: CO/2204/2016
The Queen (on the application of)
Mr Stephen Broach (instructed by Irwin Mitchell LLP) for the Claimant
Mr Steve Knafler QC (instructed by West Berkshire Council) for the Defendant
Hearing date: 22 and 23 June 2016
Introduction
This is an application for judicial review of a decision of the Defendant ('the Council') made on 1 March 2016 ('decision 1'), and of a further decision made on 31 May 2016 ('decision 2'). Both decisions were taken by the full Council. Decision 1 was an aspect of the decisions which the Council made, as part of the process of setting its budget, to cut funding to voluntary sector organisations who provide short breaks for disabled children ('short breaks'). Decision 2 was taken after the Claimants were given to permission to challenge decision 1. Decision 2 re-affirmed decision 1. In making the budget, the Council was required (in simple terms) to balance its duty to make a lawful budget against the competing needs of 47 different aspects of its services to the public in its area. I am not concerned with the merits of these obviously difficult decisions. I must consider, instead, whether the Council acted lawfully in making decisions 1 and 2.
The relief the Claimants ask for is set out in paragraph 91 of their skeleton argument, and in more detail in their amended grounds of claim. It is:
i) a declaration (in relation to each of the grounds on which the Claimants argue that the decisions were unlawful);
ii) an order quashing those decisions in part; and
iii) a mandatory order requiring a new decision about the funding for short breaks.
The Claimants have been given permission to challenge decision 1, but not decision 2. I must therefore decide whether or not to grant permission to challenge decision 2 and whether the decisions (in so far as the Claimants have permission to challenge them) are unlawful. For reasons which will I explain, the challenge to decision 2 is arguable. Whether or not I should give the Claimants permission to challenge it depends on whether I am prevented from granting permission by section 31 of the Senior Courts Act 1981 ('the 1981 Act').
The Claimants were represented by Mr Broach and the Defendant by Mr Knafler QC. I am very grateful to both counsel for the lengths to which they went to give me the greatest possible help, both in their lucid written, and eloquent oral, submissions (and for their post-hearing notes on unmet demand, and on the significance of the way in which decision 2 came before the full Council). I am also grateful to their instructing solicitors and to their clients for supporting them to help me in this way.
There are three main questions, in addition to the question about permission to challenge decision 2.
i) Did the Council err in decisions 1 and/or 2 in failing (1) to ask itself the right questions, and/or (2) to take into account mandatory relevant considerations (that is, the questions posed by, and/or the requirements of the statutory provisions which apply to short breaks)? I will refer to this issue as 'the legality issue'.
ii) Did the Council in those decisions give 'due regard' to the statutory equality needs described in section 149 of the Equality Act 2010 ('the 2010 Act')?
iii) In the light of my decisions on those questions, what, if any, relief should I give the Claimants? This question raises, or potentially raises, sub-issues about the effects of recent amendments to section 31 of the 1981 Act and of the provisions in the Local Government Finance Act 1992 ('the 1992 Act') about relief when a council tax calculation is challenged.
The facts
The Council has made provision for short breaks for disabled children since 2008. That provision was increased between 2008 and 2015, as the Council's Short Breaks Services Statement describes. Between 2008 and 2011 that provision was supported by specific funds from the Government. Despite the absence of that specific money, the Council increased its provision between 2011 and 2015. It consulted on this provision every year between 2008 and 2013.
The Council provides children with short breaks where the Council's assessment is that they have a statutory need for a short break. It also has a power to provide such breaks for children who do not have such a statutory need, which it exercises when it considers it appropriate. Many of the services are provided by voluntary sector organisations. Those organisations receive funding from the Council and from other sources. Some charge for those services and some do not.
The Council had contracts for the provision of such services with several voluntary sector organisations. The Council ended those contracts by a letter dated 25 September 2015. The Claimants and two other families then intimated a claim against the Council. But they did not bring one, as the Council said it had not then made a decision on funding for 2016/17.
As is clear from the officers' report for the meeting on 1 March 2016, and from other documents in the case, the Council faced an exceptionally difficult financial position late last year; and that position got worse in March of this year. As the executive summary of the report for the 1 March 2016 meeting explained, the Council has already made savings of £36m over the last six years. Two thirds of its income comes from council tax. The Council had anticipated a 25% cut in revenue support grant ('RSG') but the provisional settlement for the next four years (received on 15 December 2015) was much worse than that. The Council was to receive 44% less money from the Government in 2016–17. That is the third largest cut for any English unitary authority. The Council will get no grant for freezing council tax. In effect, the Government has introduced, without warning, a new formula for funding councils. The Council loses from the new formula. Council tax appeals have also had a significant effect; the Council has incurred a loss of £3m from backdated appeals and will sustain a continuing loss of £850,000 per year.
The Care Act 2014 has obliged the Council to expand its eligibility criteria for adult social care. The Government has not met the full cost of this. Various other examples of pressures on the Council are mentioned in the documents. The provisional figure for savings which needed to be made went up from £10.8 to £19m as a result of those unexpected changes by Government. The Council was able to reduce that amount to £14m by increasing council tax, by adopting a social care precept of 2% and by other changes. But not funding some cost pressures increases risk (see paragraph 5.11 of the report). That risk led to significant proposals for savings. The Council decided that 127 employees were at risk of redundancy (96 full-time equivalents); and 27 posts were deleted from the Council's establishment.
In the result, the Council decided, on 1 March 2016, to increase council tax by the maximum it could (1.99%), to impose the maximum social care levy, which led to a further 2% increase in council tax, to increase fees and charges, and to make cuts to 47 different public-facing services. Those cuts included a 12.8% cut in the Council's budget for short breaks. The funding given to voluntary sector organisations was cut by 52%. The Council also decided to make 127 employees redundant.
Because of the anticipated need to make savings, the Council consulted with a wide range of people and entities between 3 November and 14 December 2015. This became known as 'the Phase 1 consultation'. Its premise was that RSG would be reduced by 25%. When the Council was told, in December 2015, that the reduction was to be 44%, it initiated its Phase 2 consultation, which proposed further savings of £2.1m.
The page of the Council's website for the Phase 1 consultation has links to 47 separate consultations for each area in which the Council proposed a cut in spending. It explained that the Council needed to save £4.6m from services. The specific consultation on short breaks enabled consultees to fill in a questionnaire on-line (or to post it). It explained that support for families with disabled children was provided through contracts with various partners. 'Much' of this activity was said to be 'non-statutory'. I accept Mr Knafler's submission that in its context, this phrase is a term of art. It does not bear its literal meaning, but means 'provided pursuant to a statutory duty', and does not include activity which is provided in the exercise of a statutory discretion. The consultation document said that the activity was provided alongside direct payments, and allows what is on offer to disabled children to be subsidised. The proposal was to end all the current contracts and to revise and reduce provision, to focus on the children and families with the greatest assessed needs. The Council thought that the impact would be that children and their families might not be able to receive the same support as they were receiving.
The Council emailed its 900-strong community panel, and used Twitter, Facebook and local newspapers.
The Council's officers also consulted the voluntary sector organisations who provided short breaks on 30 November, 4 December 2015 (Crossroads only) and 4 February 2016. There was a meeting with affected families. The notes of the meeting of 30 November show that some providers said they would not be able to provide a service if funding were reduced. Others said that they had other...
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