The Queen (on the application of L, an infant) by his mother and litigation friend, X v Buckinghamshire County Council
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Andrews |
| Judgment Date | 12 July 2019 |
| Neutral Citation | [2019] EWHC 1817 (Admin) |
| Docket Number | Case No: CO/1941/2019 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 12 July 2019 |
[2019] EWHC 1817 (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 Andrews DBE
Case No: CO/1941/2019
Ms Fenella Morris QC and Mr Stephen Broach (instructed by Irwin Mitchell LLP) for the Claimant
Mr James Goudie QC (instructed by HB Public Law) for the Defendant
Hearing dates: 2 and 3 July 2019
Approved Judgment
INTRODUCTION
This case concerns the lawfulness of a decision taken by the Cabinet of the Defendant (“the Council”) at a meeting on 4 March 2019, to close 19 of its 35 existing children's centres, whilst ensuring their continuing use for early years and community benefit. The remaining 16 children's centres will be retained for early years provision, with the buildings also being made available for additional use to support families with children aged from 0–19 (or up to 25 for children with special educational needs or disabilities). These sites will be renamed “family centres” to reflect their wider support role.
The impugned decision (“the Decision”) was taken following a 10-week consultation process which took place between 4 October 2018 and 13 December 2018 (“the Consultation”). It was made in accordance with the recommendations set out in an Officer's Report to Cabinet (“the Report”) to which five documents were annexed: a Consultation Findings Report, the Council's Early Help Strategy, a Proposed Design for New Family Support Service, a Family Centre Site Locations Report, and an Equality Impact Assessment (“EIA”).
The Consultation took place, and the Decision was taken in the context of the Council's “Early Help Review” (“the Review”) and against a background of funding changes imposed by Central Government which placed a massive strain on public finances generally, and on the Council's finances in particular.
The provision of children's centres is one element in the Council's Early Help Strategy, which is about retaining and improving universal services within the confines of the Council's overall budget. In a guidance document issued by the Department for Education in July 2018, for inter-agency working to safeguard and promote the welfare of children (as envisaged by the Children Act 2004) entitled “Working Together to Safeguard Children”, “ early help” is defined as “ providing support as soon as a problem emerges….at any point in a child's life”. That guidance stipulates in paragraph 11 that the provision of early help services should form part of a continuum of support to respond to the different levels of need of individual children and families.
For the purposes of the Review, the Council defined the different types of interventions that families receive in Buckinghamshire according to four different levels of need. Level 1 covers children whose needs are met within universal services open to all families (such as children's centres); Level 2, children with additional support needs that can be supported by a single agency response and partnership working; Level 3, children with complex or multiple needs requiring a multi-agency coordinated response, with a lead professional; and Level 4, children with a high level of unmet and complex needs, or those in need of protection. In Buckinghamshire most children (around 85%) fall within Level 1.
At the time of the Review, most early help services in Buckinghamshire were focused on a particular age group, a single issue or one approach, which feedback from children and families captured nationally had shown was not the best approach to build resilience and improve outcomes. Consistently with the statutory guidance, the Council considered that it was important that its early help services were not considered in isolation, but instead as a constituent, complimentary part of a whole system approach. To that end, it commissioned in-depth research into the prevalence, estimated need and current service profiles for early help services in the county, including children's centres.
Children's centres were acknowledged by the Council to be a key part of its early help services. They reached 33% of the total 0–4-year-old Buckinghamshire population in 2017/18, but only 5% of the families accessing children's centres had an identified need for support during that period. The research also revealed that many of the existing children's centre buildings were under-utilised and were not cost-effective to maintain.
Based on the results of the research, the Council concluded that its current early help services were not reaching those families who needed help most. Too many children were getting help too late. Only 15% of the families who were currently accessing the Council's early help services in 2017/18 had an identified need of support, compared to 31% of 0–19-year-olds who the Council estimated may be facing difficulties and benefit from early help services. To improve effectiveness, the Council wished to focus increased resource on supporting the more vulnerable children and their families through targeted provision, with a view to reducing the need for statutory social care. That is a policy decision which has not been criticised, and indeed it is difficult to see how it could be.
In its early help review options appraisal in September 2018, which helped it to decide on the nature and scope of the Consultation, the Council said that it knew it needed to change its services to have the most impact in helping families in need, at a time when it had less money than ever before. Of a total overall early help service expenditure of approximately £9.5 million, it had to make a reduction of £3.1 million, because it no longer received any Central Government revenue support grant. Having identified four options, including no change, it said it had ruled the initial option of no change out from further consideration, as the current service model was not meeting the needs of children and families effectively, and was non-viable within the reduced resources available. It carried out an appraisal of the three remaining options, formed a provisional view about them, and then went through the consultation process. Having done so, and having taken into consideration the results of the Consultation, it made the Decision, which was a variant of its preferred option, Option B.
The Council's purpose in deciding to restructure its early years provision in this way was to help the most vulnerable children in the county. The better integration and use of buildings for early years services (as well as other services) was with a view to maintaining the overall service and preserving outcomes. The options appraisal indicated that, whilst there will be fewer buildings serving as family centres, there will be longer opening hours, and more services will be offered at these buildings. As Mr Morgan, the Council's head of early help, pointed out in his witness statement, the provision of integrated early years support is not dependent upon physical buildings alone. The new integrated family service will also enable early years support through other routes than the 16 family centres, including a greater emphasis on working with partners such as early years providers and schools and outreach support in order to help those who do not access council buildings, for a variety of reasons.
The Claimant, a baby who was born in January 2019, is the youngest of five children; his siblings are aged between 4 and 12. His mother X is a single parent and the children's sole carer; she accesses services at one of the children's centres earmarked for closure, Millbrook, on an almost daily basis. It is easy for her to get there, as it is next to the school attended by her older children. She particularly values the “open access” approach at Millbrook, which means she can attend and obtain support and advice without booking ahead. She is concerned that under the new model, the provision of such drop-in advice will be significantly reduced. Moreover, whilst two of the retained centres are geographically closer to her home, they are more difficult for X to get to by public transport.
The Claimant challenges the decision on a number of inter-related grounds. It is contended that the Consultation was unlawful because it was unfair. It was not carried out at a formative stage, the Council having already made the decision in principle not to maintain the status quo, and there was an appearance of predetermination. The Council did not seek views on the “in principle” questions of whether any change in the way that children's centres are provided in the county would be appropriate, and specifically about whether any should be closed. Moreover, the Claimant contends that the Consultation failed to provide sufficient information to enable consultees to respond to it intelligently.
It is also alleged that the Council was in breach of section 5A of the Childcare Act 2006 (“the 2006 Act”), in that it failed to direct itself in accordance with its duty under that section (“the sufficiency duty”) and by reference to the mandatory statutory guidance on the exercise of that duty, as it was obliged to do under s.3(6) of the 2006 Act. In oral argument Ms Morris QC, who appeared with Mr Broach for the Claimant, focused on this as her primary ground of complaint.
Finally, it is alleged that the Council was in breach of its statutory duties under section 1 of the 2006 Act and/or section 11 of the Children Act 2004, and the Public Sector Equality Duty under section 149 of the Equality Act 2010 (“PSED”).
On behalf of the Council, Mr Goudie QC submitted that the challenge was misconceived. The consultation process was...
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