R (on the application of Aaron Hunt) v North Somerset Council
| Jurisdiction | England & Wales |
| Judge | Lord Justice Rimer |
| Judgment Date | 21 November 2013 |
| Neutral Citation | [2013] EWCA Civ 1320,[2013] EWCA Civ 1483 |
| Docket Number | Case No: C1/2012/1867 |
| Court | Court of Appeal (Civil Division) |
| Date | 21 November 2013 |
[2013] EWCA Civ 1320
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
CARDIFF CIVIL CENTRE
Mr Justice Wyn Williams
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Moore-Bick
Lord Justice Rimer
and
Lord Justice Underhill
Case No: C1/2012/1867
Mr David Wolfe QC and Ms Aileen McColgan (instructed by Public Interest Lawyers Limited) for the Appellant
Mrs Jane Oldham (instructed by North Somerset Council) for the Respondent
This is the judgment of the court.
Introduction
This appeal is against an order made on 18 July 2012 by Wyn Williams J, in the Administrative Court, dismissing the challenge by Aaron Hunt, the appellant, to the lawfulness of the decision dated 21 February 2012 of the respondent, the North Somerset Council ('the Council'), to cut its Youth Services budget for the year 2012/2013 by £364,793. That reduction formed part of a proposed reduction of 72% in the Council's Youth Services budget between the years 2011/12 and 2013/14. It is said that the consequence of the reduction would be the withdrawal by the Council from universal Youth Services provision and its partial withdrawal from other Youth Services provision, with the Council continuing to provide only 'targeted' provision to particularly vulnerable youths.
Mr Hunt is 22. He has ADHD, learning difficulties and behavioural problems such that he is a 'qualifying young person' for the purposes of section 507B of the Education Act 1996, pursuant to which the Council provided its youth services. Mr Hunt used to attend the Escape Club, a weekly youth club provided by the Council for young people aged 11 to 24 with special needs. The club would meet on Wednesday evenings at South Weston Youth Centre. Following the challenged decision, Mr Hunt attended a reconfigured version of the club at a new location. The club remained under a threat of closure and continued to function only because of the availability of transitional funding. We were told that the club continues to function but counsel were not agreed as to whether the 'targeted' services directed at Mr Hunt had or had not gone.
Mr Hunt's case is that in making its decision to cut the budget, the Council unlawfully failed to comply either with (i) its obligations under section 507B of the Education Act 1996 and the applicable statutory guidance, or (ii) its public sector equality duties under section 149 of the Equality Act 2010.
Wyn Williams J rejected both assertions. He refused permission to appeal, as did Tomlinson LJ on the papers. Toulson LJ, as he then was, granted permission on a renewed application limited to: (i) ground 1 of the grounds of appeal, which goes to Mr Hunt's case under section 507B; and (ii) part of ground 2, which goes to his case under section 149.
Before setting out the facts, it may be convenient to set out the legislation with which Mr Hunt asserts the Council failed to comply.
(a) The Education Act 1996
This provides, so far as material:
' 507B Local authorities
(1) A local authority in England must, so far as reasonably practicable, secure for qualifying young persons in the authority's area access to —
(a) sufficient educational leisure-time activities which are for the improvement of their well-being, and sufficient facilities for such activities; and
(b) sufficient recreational leisure-time activities which are for the improvement of their well-being, and sufficient facilities for such activities.
(2) "Qualifying young persons", for the purposes of this section, are —
(a) persons who have attained the age of 13 but not the age of 20; and
(b) persons who have attained the age of 20 but not the age of 25 and have a learning difficulty …
(3) For the purposes of subsection (1)(a) —
(a) "sufficient educational leisure-time activities" which are for the improvement of the well-being of qualifying young persons in the authority's area must include sufficient educational leisure-time activities which are for the improvement of their personal and social development, and
(b) "sufficient facilities for such activities" must include sufficient facilities for educational leisure-time activities which are for the improvement of the personal and social development of qualifying young persons in the authority's area.
(4) References in the remaining provisions of this section to "positive leisure-time activities" are references to any activities falling with paragraph (a) or (b) of subsection (1).
(5) For the purposes of subsection (1) a local authority may —
(a) provide facilities for positive leisure-time activities;
(b) assist others in the provision of such facilities;
(c) make arrangements for facilitating access for qualifying young persons to such facilities;
(d) organise positive leisure-time activities;
(e) assist others in the organisation of such activities;
(f) make arrangements for facilitating access for qualifying young persons to such activities;
(g) enter into arrangements or make arrangements with any person in connection with anything done or proposed to be done under any of paragraphs (a) to (f);
(h) take any other action which the authority think appropriate.
(6) For the purposes of subsection (5) —
(a) the provision mentioned in paragraph (a) may include establishing, maintaining and managing places at which facilities for positive leisure-time activities are provided;
(b) the assistance mentioned in paragraph (b) and (e) may include the provision of financial assistance;
(c) the arrangements mentioned in paragraphs (c) and (f) may include the provision of transport, of financial assistance or of information to any person.
(7) Before taking any action for the purposes of subsection (1) ("the proposed action"), a local authority must —
(a) consider whether it is expedient for the proposed action to be taken by another person, and
(b) where the authority consider that it is so expedient, take all reasonable steps to enter into an agreement or make arrangements with such a person for that purpose.
(8) For the purposes of subsection (7)(a) a local authority must consult such persons as the authority think appropriate as to whether it is expedient for the proposed action to be taken by another person.
(9) In exercising their functions under this section a local authority must —
(a) take steps to ascertain the views of qualifying young persons in the authority's area about —
(i) positive leisure-time activities, and facilities for such activities, in the authority's area;
(ii) the need for any additional such activities and facilities; and
(iii) access to such activities and facilities; and
(b) secure that the views of qualifying young persons in the authority's area are taken into account …
(12) In exercising their functions under this section a local authority must have regard to any guidance given from time to time by the Secretary of State.
(13) In this section —
"recreation" includes physical training (and "recreational" is to be construed accordingly);
"sufficient", in relation to activities or facilities, means sufficient having regard to quantity;
"well-being", in relation to a person means his well-being so far as relating to —
(a) physical and mental health and emotional well-being;
(b) protection from harm and neglect;
(c) education, training and recreation;
(d) the contribution made by him to society;
(e) social and economic well-being.'
Statutory guidance (see subsection (12)) was issued in March 2008. We shall refer to it when considering the arguments in relation to section 507B.
The issues before the judge under section 507B were: (i) whether the Council's reduction in the Youth Services budget for 2012/13 was the exercise of a function under section 507B(1); if yes, whether the Council had (ii) under subsection (9)(a), '[taken] steps to ascertain the views of qualifying young persons' in its area in relation to the matters there identified; and (iii) under subsection (9)(b), had also '[secured] that [such views were] taken into account' in passing the resolution of 21 February 2012 approving the reduction.
The judge answered all three questions in the affirmative. On the appeal, Mr Hunt (represented, as below, by Mr Wolfe QC and Ms McColgan) submitted that whilst the judge was correct to answer issue (i) as he did, he was wrong in his decisions on issues (ii) and (iii). The Council (represented, as below, by Mrs Oldham) submitted, by a respondent's notice, that the judge's answer to question (i) above was wrong and that the proposed budget reduction was not the exercise of a section 507B function. If, however, the Council was wrong on that, it submitted that the judge was correct to conclude as he did on issues (ii) and (iii) and so find that the Council had discharged its obligations under subsection (9).
(b) The Equality Act 2010
This provides, so far as material:
' 149 Public sector equality duty
'(1) A public authority must, in the exercise of its functions, have due regard to the need to —
(a) eliminate discrimination, harassment, victimisation and any other conduct that is prohibited by or under this Act;
(b) advance equality of opportunity between persons who share a relevant protected characteristic and persons who do not share it;
(c) foster good relations between persons who share a relevant protected characteristic and persons who do not share it …
(3) Having due regard to the need to advance equality of opportunity between persons who share a relevant protected...
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