Council makes a mess of Portage

The biblical Esau rashly sold his birthright for ‘a mess of pottage’ (a bowl of lentil stew). But in a rather different context, Worcestershire Council could be said to have made a mess of Portage. For Portage (named after a US town in Wisconsin where the concept originally developed) is a pre-school educational support service (from birth to five-years-old) provided through regular home visits from a trained home visitor. However, on 22 August 2016 the council (through councillor Bayliss, cabinet member with responsibility for children and families) decided to close the Portage scheme from 1 October 2018. This prompted judicial review proceedings in R (RD and others) v Worcestershire County Council [2019] EWHC 449 (Admin), judgment in which was given by Nicklin J on 28 February 2019. 

As the court indicated, the claimants were four children with significant disabilities and support needs, living in Worcestershire with their families. Until 1 October 2018, each benefited from the provision of Portage services by the council. The claim challenged the lawfulness of the withdrawal of those services from the claimants.

Summary background

The material upon which the 22 August 2016 decision was based included (among other things): a report from the council’s executive (the executive report) and an equality impact assessment of 16 August 2016 (the first EIA). The first EIA indicated that: ‘For the small number of families who would still be eligible for a service from October 2018, we [will] develop a transition plan with the wider services working with the family’. The action was to be completed by October 2018 and the monitoring responsibility was stated as: ‘We will track every service user to ensure they have a transition plan in place and that other professionals working with that child are informed of the potential changes.’

The 22 August 2016 decision was recorded on the council’s website and (among other things) stated that councillor Bayliss had considered the recommendations contained in the executive report, noted the contents of the first EIA and ‘approved the proposals to cease delivery of the dedicated Portage service in Worcestershire on 1 October 2018 with… transitional arrangements from 1 October 2016 as set out in the [accompanying executive report]’. However, none of the claimant families was provided with any written notification of the August 2016 decision, either at the time it was made or subsequently, or given any details of the ‘transitional arrangements’ that would be made for them.

In the light of impending staff changes resulting from the withdrawal of Portage services, a second EIA was prepared on 6 April 2018. This acknowledged potential adverse impact for the disabled children in question but pointed to the positive effects of alternative provision and noted that: ‘A transition plan has been developed for all the families not due to transition which includes the key professional, other agencies working with the families, diagnosis, comments, concerns, future plans and any safeguarding issues where appropriate.’ This was to be monitored for each family. The court, however, noted that at the date of the second EIA there was no evidence that any transition plan had been developed or was in existence for any of the relevant families.

While there were five grounds for judicial review as outlined in paragraph 53 of the judgment, in the court’s view, ‘the key issue that has emerged is that of legitimate expectation…’. 

Legitimate expectation

Nicklin J gave a useful résumé on the law in this area in paragraphs 75-86 of his judgment. The court firstly noted (per Lord Fraser in Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374) that: ‘A legitimate expectation may arise either from an express promise given on behalf of a public authority or from the existence of a regular practice which the claimant can reasonably expect to continue.’ 

The court indicated that if legitimate expectation is established, the court will require the promise to be fulfilled unless there is an overriding reason to resile from it. The question is whether the frustration of the expectation is so unfair that it amounts to an abuse of power. Per the Court of Appeal in R v North and East Devon Health Authority ex parte Coughlan [2001] QB 213 [54] (which also noted categories of procedural and substantive legitimate expectation), one element of abuse of power ‘is reneging without adequate justification, by an otherwise lawful decision, on a lawful promise or practice adopted towards a limited number of individuals’. 

Nicklin J also noted 10 propositions from Cranston J in United Kingdom Association of Fish Producer Organisations v Secretary of State for the Environment, Food and Rural Affairs [2013] EWHC 1959 (Admin), which underpinned the doctrine of substantive legitimate expectation. These included that justification turns on issues of fairness and good administration, whether frustrating the substantive legitimate expectation can be objectively justified in the public interest and that the intensity of review depends on the character of the decision.

The court noted that the August 2016 decision was premised upon transitional arrangements being made. In the circumstances, the court found that the council had made a clear representation to the parents affected by the August 2016 decision (and to the public generally) that it would devise and implement transitional arrangements to mitigate the impact of the withdrawal of the Portage service by ensuring that the families affected were able to access alternative services which would meet the needs that had previously been addressed by Portage. Worcestershire Council had therefore unlawfully frustrated the claimants’ legitimate expectation and had offered no justification for so doing.  The judgment will be a cautionary tale for any public authority tempted to breach clear and unambiguous prior public representations.

Nicholas Dobson writes on local authority law and governance