R (on the application of L and another) v Warwickshire County Council
| Jurisdiction | England & Wales |
| Judge | Mr Justice Mostyn |
| Judgment Date | 05 February 2015 |
| Neutral Citation | [2015] EWHC 203 (Admin) |
| Docket Number | Case No: CO/5568/2014 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 05 February 2015 |
The Queen on the application of
and
[2015] EWHC 203 (Admin)
Mr Justice Mostyn
Case No: CO/5568/2014
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Ian Wise QC & Stephen Broach (instructed by Irwin Mitchell Solicitors) for the Claimants
James Goudie QC & Edward Capewell (instructed by Warwickshire Legal Services) for the Defendant
Hearing dates: 29–30 January 2015
This is my judgment on a rolled-up hearing in judicial review proceedings for permission to apply and, if granted, substantive relief.
The claimants are two disabled children who live in Warwickshire. Their litigation friends are their mothers. The defendant is Warwickshire County Council. The interested party is the Warwickshire Safeguarding Children Board. It is true to say that the claimants act as informal representatives of a number of other interested disabled children, their parents and campaigning organisations.
There are five grounds of claim. Of these three concern the public law duty to consult, and most of the argument over the two days I heard this matter has centred on that aspect. The first ground (Ground A) is that the defendant, Warwickshire County Council, "acted unlawfully in failing to consult properly or at all on the cuts to funding for social care services for disabled children which it intends to introduce when the 'local offer' is approved in January 2015." In fact those cuts to the annual budget of the Integrated Disability Service ("IDS") have already been effected, at least partially, as I will explain.
The first ground is the principal one and I suspect that had it not been advanced the others would not have been mounted. That is not to say that the other grounds are not important but rather that the catalyst for the claimants' complaints has been the cuts to the IDS budget.
The case is complex and intricate. The claimant's arguments if accepted will extend the law into territory where it has not been before namely the imposition of a common law duty of consultation on a local authority before it makes the political decision in a meeting of its full council to approve a budget which cuts funding to certain services supplied to vulnerable members of the community. My decision is said to be likely to affect thousands of vulnerable children in Warwickshire. It is said it will have national implications as many other authorities are considering implementing similar cuts.
The case has been excellently and most interestingly argued by Mr Wise QC and Mr Broach for the claimants and Mr Goudie QC and Mr Capewell for the defendant. The interested party has not participated in the proceedings.
The context of the case is obvious. Since the general election of May 2010 the coalition government has imposed heavy cuts across the public sector with only two areas being exempted. In the face of these cuts in 2011 Warwickshire adopted a Medium Term Financial Plan for the period 2011 to 2014 which required savings of £66m to be made for that period. Of this only £275,000 was intended to come from the IDS budget. However, in late 2012 the government imposed further cuts to the Early Intervention Grant and the Local Authority Central Service Education Grant. Warwickshire's loss in these two respects was £5.9m annually.
On 5 February 2013 the full council met to consider the budget for the forthcoming year. That budget had been considered by the cabinet in December 2012. The papers containing and explaining the proposed cuts were sent out to all elected members. They proposed, as the cabinet had previously agreed, that of the £5.9m cut, £1.1m would be found "corporately" with the balance coming from the children's services budget.
At that time Warwickshire was controlled by the Conservatives who had an overall majority. However an election was coming up on 2 May 2013. The proposal by the governing Conservatives was that £1.786m be saved in the year 2013/14 from the SEN and IDS budgets. According to a spreadsheet produced by them "this will involve a fundamental review and transformation of the IDS including a reduction of at least 20% in the short breaks service." The proposals of Labour and the Liberal Democrats did not dispute this aspect of the savings plan. Accordingly, it was voted through nem con. At the election on 2 May 2013 the Conservatives lost overall control but remained the largest party. They then governed as a minority administration. The savings plan was maintained and has not since been reversed. However, in October 2013 Warwickshire ran a public engagement exercise called "Let's Talk" which involved a road show and the launch of an online budget simulator which allowed residents to say how they would set the Council's budget, where money would be saved and what their service priorities were. 661 people engaged in the exercise and the majority indicated their support for an across-the-board reduction in spending. The average response to the children's services and education budget was that it should be cut by 15%.
In fact no saving of £1.786m, or any part of it, was made in the financial year 1 April 2013 – 31 March 2014. According to papers prepared for a cabinet meeting on 18 August 2014 it was anticipated that in the current financial year (1 April 2014 – 31 March 2015) savings of £1.258m would be made, a "slippage" of £528,000. None of the savings of £1.258m came from cuts to front-line services. The great majority came from staffing cuts (i.e. redundancies). For the next financial year it is expected that the full £1.786m will be saved but again the majority would come from staff salary savings. However £475,000 will come from the "Early Help Offer" which is a front-line service. So it can reasonably be anticipated that the claimants will be at risk in the next financial year of some cut in services made available to them.
The decision to set a local authority budget at a certain level and to make reductions in certain areas must surely be the very quintessence of a political decision. A challenge to a budget proposal should normally be made through elected representatives or, if dissatisfied with what they are doing, by seeking to unseat them at an election. That is what local democracy is all about. The main challenge here does to my mind raise a serious constitutional question. I whole-heartedly agree with the statement of Collins J in the Lincolnshire library closure case ( Draper v Lincolnshire County Council [2014] EWHC 2388 (Admin)) at para 53:
"The overwhelming objection to the decision does not in itself mean that it is unlawful. The decision to make the £2 million cuts was a political one which was not and cannot be challenged in the courts. It can of course when it comes to electing councillors. The need for cuts will inevitably produce hard decisions for many, but that does not make them unlawful."
That does not mean of course that every political decision made by an elected county council is immune from challenge in judicial review proceedings. It does mean however that I must be especially careful that I do not cross the line into the political arena and get lured into making a judgment about the merits of a democratic decision which imposes a cut.
The public law duty to consult
That a public duty to consult in certain circumstances is established in legion cases. It is an aspect of the requirement of procedural fairness when reaching an administrative decision which the common law has insisted on at least since the early 17 th century. In the curious case of R (Plantagenet Alliance Ltd) v Secretary of State for Justice [2014] EWHC 1662 (QB) the Divisional Court stated at paras 84 – 86:
"84. It is appropriate to start any legal analysis by examining the Common Law principle of fairness in this context. Where a statutory process is of itself insufficient to ensure the requirements of fairness are satisfied, the Common Law will generally intervene to ensure that the requirements of fairness are met. As Byles J observed in Cooper v Board of Works for the Wandsworth District (1863) 14 CB(NS) 190, 194:
"[A] long course of decisions… establish that, although there are no positive words in a statute that the party shall be heard, yet the justice of the Common Law will supply the omission of the legislature."
85. In Lloyd v McMahon [1987] 1 AC 625, 702–3, Lord Bridge of Harwich said:
"[I]t is well established that when a statute has conferred on any body the power to make decisions affecting individuals, the courts will not only require the procedure prescribed by the statute to be followed, but will readily imply so much and no more to be introduced by way of additional procedural safeguards as will ensure the attainment of fairness."
86. The intervention of the Common Law pre-dates the development of the modern law of Judicial Review. It has its genesis in judgments such as those of Coke CJ in Bragg'sCase ( 77 E.R. 1271 at 1275; (1615) 11 Co. Rep. 95b); Coke CJ in Bonham'sCase ( 77 E.R. 646; (1610) 8 Co. Rep. 113) and Fortescue J in Dr Bentley'scase ( 93 E.R. 698; (1723) 8 Mod. 148; (1723) 1 Str. 557)."
In some circumstances fairness demands that a consultation take place before a decision is reached. This is to state the obvious. Sometimes Parliament specifically enacts that a consultation shall take place in...
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