Local government

R (on the application of Buck) v Doncaster Metropolitan Borough Council: Court of Appeal, Civil Division: 8 October 2013

The applicant lived within the area of the respondent local authority and used one of the public libraries a great deal. The then executive of the authority, a directly elected mayor and his cabinet (the mayor), wished to save public money by changing library services. The mayor decided to make changes which would have affected fourteen of the libraries in the area. The full council wished to retain the existing level of service.

The full council held its final budget and council tax-setting meeting and passed an amendment to the budget that had been presented for approval by the mayor. The amendment did not pass the mayor’s proposal for a reduction in the library services and instead allocated the money to achieve a full retention of library services. Following the passing of the amendment, the mayor said that he would not spend the full budget as per the amendment. The applicant sought judicial review of the mayor’s decision, seeking a declaration that he had acted unlawfully in refusing to implement the budget amendment determined by the full council.

She contended that the mayor was bound by the full council having resolved to spend the full budget on re-opening or re-staffing or continuing to staff the libraries. The High Court dismissed her application holding, inter alia, that even if the amendment had been a direction to spend the money allocated by the full council, the mayor would not have been bound by it. How to run the libraries had been a matter for him as the executive. The mayor’s decision had remained one for him because it had been neither contrary to the budget nor contrary to a ‘plan or strategy’ within the meaning of schedule 4 to the Local Authorities (Functions and Responsibilities) (England) Regulations 2000, SI 2000/2853 (the regulations). The applicant appealed. The appeal was, however, academic as the financial year to which the appeal related had ended, the libraries had continued to function without the full budget having been spent and so similar provision had been made for the following financial year.

The applicant submitted that, in refusing to implement the budget amendment in relation to library services, the mayor had acted: (i) contrary to and not wholly in accordance with the budget; and (ii) contrary to a plan or strategy adopted or approved by the authority. Consideration was given to sections 9C and 9D of the Local Government Act 2000 (the 2000 act) and sections 31A(1) and (2) of the Local Government Finance Act 1992 (the 1992 act).

The appeal would be dismissed.

(1) Section 31A(2)(a) of the 1992 act gave the full council no power to interfere with the executive function of the mayor, except where the mayor proposed to exercise the function in a way that was: (i) contrary to, or not wholly in accordance with the authority’s budget; or (ii) contrary to a plan or strategy adopted or approved by the authority. ‘Contrary to or not wholly in accordance with the authority’s budget’ meant determining a matter which would result in incurring expenditure in excess of that for which budget approval had been given by the full council. That did not only mean that the executive might not incur expenditure in excess of the aggregate of the entire budget, although it certainly included such a restriction on the executive’s spending power. It also meant that the executive might not incur expenditure in excess of heads of expenditure specified in the budget (see [18], [20] of the judgment).

Paragraph 2 of schedule 4 to the regulations provided that the determination of a matter was not the responsibility of the executive if ‘[the executive] is minded to determine the matter contrary to, or not wholly in accordance with (i) the authority’s budget’ (see [20] of the judgment).

Accordingly, the full council was not permitted to micro-manage the authority’s functions and interfere with the executive functions of the mayor. The full council could not require the mayor to expend money in a particular way, or, unless he proposed to act in a way contrary to the plans and strategies reserved to the full council, to expend money on a particular function (see [21] of the judgment).

(2) The language of ‘plan or strategy’, read in the context of the regulations, denoted something that operated at a general level. It could not embrace any and every decision that might be taken on an individual issue. If it did, it would undermine the basic distinction between executive and non-executive functions which lay at the heart of the relevant part of the 2000 act. The full council might, in certain respects, set the policy framework for the authority, but its detailed implementation was a matter for the executive (see [24] of the judgment).

In the instant case, the mayor’s budget proposals in relation to the library services had not comprised a relevant ‘plan or strategy’. At most, the proposals had been an expression of a small aspect of the policy which had formed the basis of the budget. The financial strategy referred to in the mayor’s budget report had not been intended to be a plan or strategy separate from the budget itself; it had been a proposed budget built up in detail. It had not been a plan or strategy in any ordinary sense of those words. Even if the mayor’s report had contained a strategy separate from the proposed budget, the full council had not approved or adopted that strategy. The full council had never determined that it should take the decision about whether to approve it as a plan or strategy; it had simply passed the amendment. The full council had had no power to adopt the mayor’s budget proposals as a plan or strategy within the meaning of paragraph 3 of schedule 4 to the regulations (see [24], [25] of the judgment).

Decision of Hickinbottom J [2012] LGR 663 affirmed. David Wolfe QC and Sam Jacobs (instructed by Public Interest Lawyers) for the applicant. Nigel Giffin QC and Edward Capewell (instructed by Doncaster Legal Services) for the authority.