Nash, R (on the application of) v Capita Plc & Ors

In staged public decision-making, time for judicial review does not invariably run from the final decision. Where an earlier decision is substantive and distinct, and the later decision merely implements it, the claim must be brought within time from the earlier decision. A genuinely provisional or conditional decision may instead be challenged when the final decision is made.

The consultation duty in section 3(2) of the Local Government Act 1999 requires consultation about high-level decisions on how local-authority functions will be performed, including major outsourcing proposals. General consultation on budgets and priorities is insufficient if it avoids the central outsourcing proposal. The public sector equality duty requires due regard, but the assessment remains primarily for the authority.

The claimant, a resident of Barnet, sought judicial review of decisions by Barnet London Borough Council concerning proposed outsourcing contracts for customer, support, development and regulatory services. She alleged failure to consult, breach of the public sector equality duty under section 149 of the Equality Act 2010, and breach of fiduciary duty to council tax payers.

The Council argued that the challenges were out of time because the substantive decisions to proceed with outsourcing and procurement had been taken in 2010 and 2011. The central issues were whether the later contract-award decisions generated fresh grounds for review and, substantively, whether the Council had complied with its statutory duties.

1. Permission and time. Permission to apply for judicial review was refused. The challenge to the consultation duty and fiduciary-duty grounds, and the primary equality-duty challenge, was out of time. The decisions taken in 2010 and 2011 were substantive decisions to outsource identified functions and commence procurement. They were not merely provisional or conditional. The later decisions concerned the selection of particular contractors and did not restart time: CPR 54.5; R (Burkett) v Hammersmith and Fulham London Borough Council [2002] 1 WLR 1593; R (Unison) v NHS Wiltshire Primary Care Trust [2012] EWHC 624 (Admin).
2. Consultation. Section 3(2) of the Local Government Act 1999 requires consultation directed to the substance of high-level decisions about how the authority’s functions will be performed. That includes whether functions should be outsourced. Consultation on general priorities, budgets and expenditure cannot satisfy the duty if it does not invite views on the outsourcing proposal itself. The authority retains broad discretion over the form, timing and consultees, and need not consult on every operational implementation decision.
3. Equality duty. The Council’s equality impact assessment addressed the anticipated effects of the proposed contract, including channel-shifting, accessibility and support for vulnerable users. Whether the contractual commitments were adequate was principally a matter for the Council. The claimant had not shown an arguable breach of the duty to have due regard under section 149 of the Equality Act 2010.
4. Fiduciary duty. The evidence did not approach the reckless disregard of financial planning or management required to establish breach of a local authority’s fiduciary duty. The claim would have failed on its merits even if it had been brought in time. The claim was dismissed by refusal of permission on all grounds.