Buck, R (on the application of) v Doncaster Metropolitan Borough Council

A full council’s power to approve a local authority’s budget does not permit it to direct how the executive must exercise executive functions. A budget estimates expenditure and authorises its financial limits. It does not require the executive to incur each allocated sum.

An executive acts contrary to the budget when its decision will incur expenditure beyond the approved budget or a specified budget head. A plan or strategy capable of restricting executive action must operate at a general policy level and must have been adopted or approved by the full council. A detailed proposal within a budget does not become such a plan or strategy merely because it is described as a strategy.

The elected mayor of Doncaster decided to reorganise the authority’s library service by replacing employed staff with volunteers or self-service facilities at several libraries and closing two libraries. The full council subsequently amended the annual budget by creating a contingency of £382,250 to support 14 community libraries. The mayor declined to use the allocation to restore fully staffed council libraries.

Ms Buck sought a declaration that the mayor was bound to implement the amendment. Hickinbottom J dismissed the claim, holding both that the amendment did not direct expenditure and that library provision remained an executive function.

The dispute had become academic, but permission to appeal was granted because the division of responsibility between an elected executive and the full council was of general importance. The Court of Appeal declined to determine the amendment’s particular meaning. It considered whether the mayor’s decision was contrary to the authority’s budget or to a plan or strategy adopted or approved by the full council.

1. The appeal was dismissed unanimously. The Court declined to decide whether the particular budget amendment directed expenditure because the relevant financial year had ended and that issue was wholly academic. It determined the issue of general importance concerning the division between executive and full-council functions.

2. Under the governance scheme created by the Local Government Act 2000, local-authority functions are executive functions unless otherwise specified. Decisions about the provision and operation of libraries, including the number of libraries, staffing, opening hours and stock, were therefore matters for the mayoral executive.

3. The full council’s power under section 31A of the Local Government Finance Act 1992 was to estimate expenditure for the purpose of approving the budget and setting council tax. Budgeting for expenditure did not determine that the expenditure must be incurred. A contrary construction would allow the full council to assume responsibility for almost any executive matter by inserting detailed requirements into the budget, defeating the statutory separation of functions.

4. An executive determination is contrary to, or not wholly in accordance with, the authority’s budget for the purposes of paragraph 2 of Schedule 4 to the Local Authorities (Functions and Responsibilities) (England) Regulations 2000 where it will result in expenditure exceeding the sum approved by the full council. This restriction applies both to the aggregate budget and to specified heads of expenditure. The case did not require the Court to determine the permissible degree of detail within those heads.

5. The full council remained the final arbiter of the sums included in the budget, but it could not require the mayor to spend an allocation in a particular way or on a particular executive function. Doncaster’s rules also gave the mayor an unrestricted power of virement. The amendment and judicial review proceedings therefore could not compel the requested expenditure.

6. For paragraph 3 of Schedule 4, a relevant plan or strategy must operate at a general policy level. An individual operational decision or a small component of a detailed budget cannot acquire that status merely through the use of the word “strategy”. In any event, the full council had neither adopted nor approved the suggested financial strategy as a distinct plan or strategy and lacked power under its constitution to do so. It was therefore unnecessary to decide whether the mayor’s decision was contrary to its terms.

1. Court of Appeal (Civil Division): The appeal was dismissed unanimously. The Court upheld the substance of Hickinbottom J’s conclusion that the mayor was not bound to spend the budget allocation, but declined to determine the academic question of the amendment’s particular construction. [2013] EWCA Civ 1190

2. High Court, Queen’s Bench Division, Administrative Court: Hickinbottom J dismissed the judicial review claim. He held that the amendment created a contingency rather than a direction to spend and that, in any event, the mayor retained responsibility for the executive function because his decision was contrary to neither the budget nor an adopted plan or strategy. No citation is stated in the judgment.