Buckinghamshire sees off consultation challenge

Judges are not local authorities. Nor indeed (other than being courts or tribunals) are they any other type of executive public body responsible for performing specified functions. So, on judicial review, courts cannot make substantive authority decisions (that is, take or substitute their own decisions in place of those of the challenged authority as if the court were that authority). The court’s role on review is simply to ensure that the relevant authority’s decisions are lawfully taken.

However, for those unhappy with specific authority decisions, judicial review does provide a way of subjecting those decisions to judicial scrutiny. And the court may (among other things), if it thinks fit, quash any decision it finds to have been unlawfully taken.

One local authority recently finding itself under the judicial microscope was Buckinghamshire County Council (the council). For when, following a 10-week consultation process, the council (required in the light of government funding changes to reduce £9.5m expenditure by £3.1m) decided to close 19 of its 35 existing children’s centres (while ensuring their continuing use for early years and community benefit), the decision was challenged on various grounds. These included that: the consultation was unfair, flawed and gave an appearance of predetermination. The council was also argued to have breached various statutory duties, including the ‘sufficiency duty’ in section 5A of the Childcare Act 2006 (to make sufficient provision of children’s centres to meet local need).

The case in question was R (L, an infant by his mother and litigation friend X) v Buckinghamshire County Council [2019] EWHC 1817, judgment in which was given by Mrs Justice Andrews on 12 July 2019. James Goudie QC, for the council, argued that the challenge was misconceived, the consultation process was fair and all relevant statutory duties had been properly complied with. Andrews J, despite Fenella Morris QC’s attractively articulated case for the claimant, concluded that Goudie was right and that both the consultation and the decision were lawful.

The council had identified four options, including no change. It said it had ruled out no change from further consideration, as the current service model was not effectively meeting the needs of children and families 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 taken into consideration the results of the consultation, it made the decision. This was a variant of its preferred option, namely the creation of a network of 14 family centres with a programme of activities for families with 0-19-year-olds – or up to 25 years old for young persons with special educational needs or disabilities – with three of those centres providing extra drop-in support services five days a week.

As to consultation, the Supreme Court in R (Moseley) v London Borough of Haringey [2014] UKSC 56 had specifically endorsed the ‘Sedley’ criteria (per R v Brent London Borough Council, ex parte Gunning, (1985) 84 LGR 168) and noted them as ‘a prescription for fairness’. These include that:

l Consultation must be at a time when proposals are still at a formative stage;

l The proposer must give sufficient reasons for any proposal to permit of intelligent consideration and response;

l Adequate time must be given for consideration and response; and

l The product of consultation must be conscientiously taken into account in finalising any statutory proposals.

Also in Moseley, Lord Wilson had recognised that the demands of fairness are likely to be somewhat higher when an authority contemplates depriving someone of an existing benefit or advantage than when the claimant is a bare applicant for a future benefit. In the instant case, Andrews J said that she had borne that well in mind.

The court noted that the consultation duty in section 5D(1) of the Childcare Act 2006 gives the council a wide discretion as to the nature and scope of the consultation, while making it clear that the consultation must take place before any changes are implemented. Andrews J found no predetermination and considered the consultation process entirely fair, with its results taken into account at the final decision. This ground of challenge therefore failed.

As to the ‘sufficiency duty’, the court agreed that consideration of sufficiency to meet local need was pervasive through every stage of the decision-making process. Andrews J was therefore ‘satisfied… that the material before the court is sufficient to establish that the council did assess the overall needs and locally based needs of families with young children, and of the children themselves, for children’s centres; and that it did make a conscious and informed decision that the 16 centres at the selected locations would be enough to meet those needs’. The council had consequently fulfilled its duty under section 5A.

A challenge alleging breach of the public sector equality duty (PSED) in section 149 of the Equality Act also failed. Andrews J said that, in the round, the Councils Equality Impact Assessment identified some negative impacts but that there were measures that could be taken to help mitigate them. In her view that ‘indicates a conscientious focus on the need to minimise any disadvantages to those with protected characteristics that the proposed decision, including the decision to close over half its children’s centres, would have’. The PSED was therefore complied with.

The court was consequently satisfied that the council had carried out a fair consultation and had taken the responses properly into account before making the decision. It had also complied with all its relevant statutory duties. The judicial review claim was therefore dismissed.

Nicholas Dobson writes on local authority law and governance