Littlefair, R (on the application of) v Darlington Borough Council

In judicial review, a decision-maker must consider statutory or regulatory factors, including factors that are implicit in the statutory scheme. A further consideration must be addressed where it is so obviously material to the decision that the law requires it. Other matters remain within the decision-maker’s choice.

For a decision to close a childcare facility, the material statutory consideration was whether adequate alternative provision existed to satisfy the duty under Childcare Act 2006, section 6. The decision-maker was not required to consider every historical assessment or review. The court reviews legality, not the factual merits or political wisdom of the decision.

The claimant, a child who had attended Kids & Co Nursery, challenged Darlington Borough Council’s Cabinet decision to close the nursery. Permission for judicial review was granted on the ground that the Council had failed to consider its Childcare Sufficiency Review 2011/2012 and the anticipated shortfall in alternative provision.

The Council relied on its statutory duty under section 6 of the Childcare Act 2006, the comprehensive 2011 assessment and more recent vacancy information. The central issue was whether the 2012 Review was a legally material consideration which the Cabinet had been required to take into account.

1. The application was dismissed. The Cabinet had lawfully considered whether sufficient alternative childcare would be available if the nursery closed. The decision was therefore lawful.
2. The court distinguished three categories of consideration. First, a decision-maker must consider factors required by statute or regulation, whether express or implicit. Secondly, even without an express statutory requirement, a factor must be considered where it is so obviously material to the decision. Thirdly, the decision-maker may choose whether to take other matters into account. These principles were derived from In re Findlay & Ors [1985] 1 AC 318, CREEDNZ Inc v Governor General [1981] 1 NZLR 172 and R (on the application of) ICO Satellite Ltd v Office of Communications [2011] EWCA Civ 1121.
3. Under section 6(1) of the Childcare Act 2006, the Council had to secure, so far as reasonably practicable, sufficient childcare for parents requiring it for work, education or training. The duty did not require the Council itself to provide the childcare. The adequacy of alternative provision was therefore a highly material consideration in deciding whether to close the nursery.
4. The 2012 Review was not itself a material consideration which the Cabinet was legally obliged to consider. It was historical information. The Cabinet had the comprehensive 2011 Assessment and up-to-date information from a telephone audit showing vacancies among childminders and nurseries. The court was not entitled to substitute its view of the evidence for that of the decision-maker. The approach in R v Hillingdon London Borough Council, ex parte Pullhofer [1986] AC 484 supported that conclusion.
5. Alternatively, even if the 2012 Review ought to have been considered, it could not have affected the decision. The judge also indicated that, if relief had been necessary, declaratory relief would probably have been appropriate because circumstances had materially changed.