London Secure Services Ltd, R (on the application of) v The Youth Justice Board

A public authority conducting a procurement exercise may rationally assess demand by treating broadly interchangeable forms of provision as complementary, provided individual decisions remain based on the needs and best interests of the person concerned. A guide figure in an invitation to tender does not ordinarily create a legitimate expectation as to the number of places ultimately purchased where the document makes clear that it is indicative and gives no guarantee of purchase. Formal equality impact assessments are not generally statutory requirements; the authority must instead have due regard to the relevant equality duties. A consultation duty will not be implied from a broad statutory scheme or general policy statements lacking sufficient specificity.

Three linked rolled-up applications challenged the Youth Justice Board’s decision of 26 March 2009 not to award long-term contracts for Orchard Lodge and the Atkinson Unit, secure children’s homes. London Secure Services Ltd was the unsuccessful tenderer for Orchard Lodge. T and JV were young people detained in the affected establishments. The challenges concerned legitimate expectation, procurement methodology, geography, the treatment of secure training centres as broadly interchangeable with secure children’s homes, children’s human rights, equality impact assessment, consultation, and the clarity of placement policies.

Permission was granted in each case, but the substantive challenges were dismissed.

1. Outcome. Each ground of challenge failed and each application was dismissed.
2. The invitation to tender described the regional demand figures as indicative and as a guide. It gave no guarantee that any minimum number of places would be purchased. It therefore contained no clear and unambiguous representation capable of founding the claimed legitimate expectation. There was also no detrimental reliance or practical unfairness. The demand calculation, including the use of existing secure training centre capacity, was rational.
3. Secure children’s homes and secure training centres are broadly interchangeable for procurement and demand-assessment purposes, although the placement of any individual must depend on an assessment of that person’s particular needs. In some cases only one type of institution will be appropriate; in others either may be suitable, and needs may change over time.
4. The Youth Justice Board was entitled to address geography through regional corridors and demand matching rather than by scoring distance from home. Proximity remained one relevant factor in individual placement decisions, but there was no continuing firm policy commitment to placement within 50 miles of home.
5. The claims under Articles 2, 3 and 8 of the ECHR failed. The claimants had not shown that the decision created the alleged risks, that the demand calculation was flawed, or that ordinary conditions in secure training centres or young offender institutions necessarily breached those Articles. In any event, the Board had struck a fair balance.
6. Formal equality impact assessments were not required by statute. The Board discharged its equality duties by considering the relevant equality concerns in the circumstances, including through the tender specification and its consideration of male and female provision.
7. No consultation duty arose by implication from the statutory scheme or from the Board’s policies. The alleged duty lacked sufficient specificity. The change from “vulnerable” to “significant risk factors” in the placement protocol clarified rather than altered the applicable assessment criteria.