A (through His Mother and Litigation Friend, B) and Another v Oxfordshire County Council
| Jurisdiction | England & Wales |
| Judge | Mr Justice Langstaff,My Justice Langstaff |
| Judgment Date | 07 October 2016 |
| Neutral Citation | [2016] EWHC 2419 (Admin) |
| Docket Number | Case No: CO/2281/2016 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 07 October 2016 |
[2016] EWHC 2419 (ADMIN)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
The Honourable Mr Justice Langstaff
Case No: CO/2281/2016
The Queen on the Application Of
Mr David Wolfe QC AND Ms Sarah Hannett (instructed by Central England Law Centre) for the Claimants
Mr Peter Oldham QC (instructed by Oxfordshire County Council Legal Services) for the Defendant
Hearing dates: 19 & 20 July 2016
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
On 16 th February 2016, Oxfordshire County Council determined its budget for the following year in full Council. It forecast its likely needs beyond 2016–17, setting them out in a "medium term financial plan" ("MTFP"). Part of the MTFP indicated that Oxfordshire would seek to reduce still further the amount of money it spent on early intervention services for children.
In the light of the decisions of 16 th February 2016, Oxford's Cabinet (charged with making executive decisions, in the light of the budget set by the full Council) approved a plan to cut funding in respect of children's centres for 2017/2018.
Those two decisions are challenged in an application for judicial review, which comes before me as a rolled-up hearing: seeking permission, and thereafter, if permission is granted, relief. The Claimants are children. Their mothers, who act as their litigation friends for the purposes of the claim, say they have had considerable benefit from the open access nature of the existing children's centres.
Oxford's Council decision of 16 th February 2016, and the subsequent Cabinet decision of 23 rd February, have a considerable history behind them. This begins with public funding cuts, which affected the overall budget available to the Council.
Mr Oldham QC for the Defendants submitted, and I accept, that there were two strands of decision making which followed notification of the cuts: that of the full Council, and that of the Cabinet. The full Council is obliged to set the annual budget: the Cabinet cannot do so. This is the effect of the Local Authorities (Functions and Responsibilities) (England) Regulations 2000 ( SI2000/2853), Regulations 4(9), (10) and (11). The budget is to be set in accordance with Section 30(6) and (7) of the Local Government Finance Act 1992, the effect of which is that it is to be set before the financial year begins, but in respect of the one, coming, financial year alone.
Though the setting of Council Tax to meet the budget which determines it is a function of the whole Council, the Cabinet alone has the responsibility of determining the precise expenditure and allocation of the sums thus raised. This is the effect of Section 9D of the Local Government Act 2000, in particular Section 9D (2).
In the case of R (Buck) v Doncaster Metropolitan Borough Council [2013] EWCA Civ 1190 the Court of Appeal considered the operation of those provisions in practice. The full Council of Doncaster approved a budget. It provided for a level of funding which would have permitted the level of delivery of library services which had operated in the previous financial year to continue during the next. However, the Mayor and Cabinet decided not to spend those sums, since in order to save public money the Cabinet wished to change the way library services were provided in Doncaster. A Doncaster resident challenged the refusal of the Cabinet to spend the money allocated by the Council in respect of library provision. Her claim was dismissed by Hickinbottom J, whose decision was upheld by the Court of Appeal. It held in the light of the statutory provisions set out above that the full Council could not require the Cabinet to spend money in a particular way nor, unless it proposed to act in a way contrary to plans and strategies the making of which was reserved to the full Council, to expend money on a particular function.
In the case before me, not only did Oxford's Council set a budget, but also approved a rolling MTFP. This was not set in stone, but indicative as to the budget which would be available for the discharge of executive functions in future years. Though not required nor prescribed by statute, an MTFP is plainly an aid to effective decision-making, and making one is a process the Council has power to undertake pursuant to its general power of competence deriving from Section 1 of the Localism Act 2011, and section 111 of the Local Government Act 1972. Oxfordshire Council's practice was that adjustments to the MTFP were made each year, though broadly it was to be anticipated that the plan would indicate that which the following year's budget would formally set.
No doubt in response to the continuing pressures to make financial savings, Council decided in late 2013 to review the work of the Council's Children, Education and Families ("CEF") Directorate. It considered that the integration of the early childhood service (which provided amongst other matters for 44 children's centres across the county) with the adult service would save money overall. The MTFP adopted by the full Council on 18 th February 2014 indicated that a saving of £3m per year from 2017/18 onward was to be aimed at consequent upon such an integration.
The following year, on 17 th February 2015, the Council budgeted for further reductions of £1m per year from 2015/2016, and a further £2m per year (additional to the previously anticipated £3m) from 2016/17.
As at February 2015 therefore, the MTFP planned that £6m less per year would be spent on the CEF Directorate after the end of the financial year ending in 2018. This was to be achieved in three stages —£1m per year from 2015/16, a further £2m per year from 2016/17, and the final and additional £3m per year with effect from 2017/18.
At a meeting of the Cabinet on 23 rd June 2015 a cross party advisory group ("CAG") was established to support the development of proposals by which the £6m budget reduction and fundamental re-design of early intervention services was to be achieved. It determined that there would be full public consultation on the proposals.
At a meeting on 15 th September 2015, the Cabinet received a report from the Director for Children's Services which contemplated yet further savings, this time of £2m (making a total annual saving of £8m in each year following 2017/2018).
Consultation proceeded on a proposal to achieve this potential £8m annual reduction by replacing the then current provision of 44 open access children's centres, which offered universal services to the public, and 7 early intervention hubs, with 8 "children and family centres". These were to be more narrowly focussed on needy children – those who were on child protection plans, children in need, and those identified as vulnerable through Oxfordshire's Thriving Families Programme. The first option offered for consultation was that universal services were to be no more, though other options, too, were proffered: they included the provision of some limited universal services, or alternatively the making available of £1m per year to the voluntary sector for it to deliver some universal services across the county.
On 26 th January 2016, the Cabinet made recommendations to Council as to the budget and MTFP, with a view to the adoption of those recommendations at the Council meeting in February.
If the Council had decided at its February meeting to set a budget incorporating the savings anticipated by the MTFP produced a year earlier, it would have budgeted for a £2m reduction in the annual expenditure of the CEF Directorate in respect of early intervention services. It decided to depart from what until then had been proposed by the MTFP. Instead, it budgeted for a £0.8m reduction in the budgetary year 2016/2017. This meant that if the original plan to reduce the annual budget by £6m from 2018 onwards was to be achieved, £1.8m annual savings would have been achieved during 2016/2017 (the £1m reduction effected in year 2015/2016, together with the £0.8m for 2016/17) leaving £4.2m further cuts to be introduced on an ongoing basis in 2017/2018.
Council declined to adjust the MTFP so as to add in the additional £2m savings suggested in September 2015 as an addition on top of the £6m, making the £8m upon which consultation had taken place.
The budget for 2016/17 thus having been set to show a lesser reduction than had been anticipated a year before, but a commensurately greater reduction in the 2017/18 (in effect, deferring £1.2m worth of cuts by a year) the question how children's centres should be provided for in future came before Cabinet on 23 rd February 2016. The minutes of the Cabinet meeting recorded a resolution to develop 8 children and family centres in locations set out in a report before it. The meeting had before it a report of the outcome of the public consultation, which was then available, and was reminded of the terms of the decision made by Council on 16 th February 2016. It had sight of a Service and Community Impact Assessment in respect of the proposals. There was discussion whether the decision to establish 8 hubs (in place of the previous arrangements) should be deferred, but Councillor Melinda Tilley, who was lead cabinet member for Children, Education and Families "affirmed that the County Council were required to find £6m, and the proposals currently before the Cabinet today were aimed at re-organising services in order to do that while meeting the needs of more...
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