T & Ors, R (on the application of) v Sheffield City Council

A local authority’s decision to withdraw childcare subsidies will be lawful where consultation is undertaken while the proposal remains capable of change, consultees receive adequate information and time, and their responses are conscientiously considered. The public sector equality duty requires substantive and proportionate consideration of equality impacts. It does not require forensic analysis or permit the court to reweigh competing considerations. Best value and childcare duties must be assessed in the context of the population and services as a whole, subject to reasonable practicability. Where the decision-making process is thorough and informed, disagreement with the policy merits does not establish irrationality.

Four mothers sought judicial review of Sheffield City Council’s decision on 27 February 2013 to terminate childcare subsidy grants to 20 independent nurseries from 31 March 2013. The claimants alleged breaches of the common law consultation duty, the public sector equality duty under Equality Act 2010, the best value duty under Local Government Act 1999, duties under the Childcare Act 2006, and irrationality.

The challenge concerned whether the Council’s extensive consultation, equality assessments, consideration of social value and statutory duties were legally adequate, and whether the court could interfere with the Council’s assessment of competing funding priorities.

1. Consultation. The consultation complied with the principles in R v North and East Devon HA ex parte Coughlan [2001] QB 213. It occurred at a formative stage, the Council supplied sufficient reasons, adequate time was available in context, and responses were conscientiously taken into account. The formative stage and reasonable consultation period are fact-sensitive. Earlier consultation on related proposals may affect the timing, content and duration of later consultation. An imperfectly worded questionnaire did not invalidate the process when the consultation materials as a whole made the issues and alternatives clear.
2. Equality duty. The Council complied with section 149 of the Equality Act 2010. Due regard is what is appropriate in all the circumstances and is fact-sensitive. Compliance is substantive rather than a tick-box exercise, but decision-makers are not required to investigate every possible permutation or conduct forensic analysis. The court must not substitute its view of the weight to be given to equality considerations once there has been rigorous and conscientious consideration.
3. Best value. The Council had regard to the social value of the nurseries and to the best value principles under section 3 of the Local Government Act 1999. The duty did not require a pound-for-pound comparison between reductions affecting the Council’s services and reductions affecting voluntary or community providers.
4. Childcare duties. Sections 1 and 3(2) of the Childcare Act 2006 permitted the Council to assess well-being, inequalities and integrated services across the affected population rather than by reference only to the subsidised nurseries. Section 3(3) was not materially engaged on the evidence. The section 6 duty was considered directly and remained subject to reasonable practicability. The court could not substitute its assessment for the Council’s on that question.
5. Irrationality and result. The Council had accumulated and considered substantial information about the grants, their purposes and their consequences. The claimants’ disagreement with the balance struck did not permit the court to re-balance the arguments. The claim was dismissed and the decision remained undisturbed.