Morris & Anor, R (on the application of) v Rhondda Cynon TAF County Borough Council

A duty under the Childcare Act 2006, section 22 is open-textured and qualified by reasonable practicability. It is not framed in absolute terms or as a simple duty to achieve a predetermined result. A local authority may need to make predictive judgments about future childcare demand and the effects of funding changes. The scope of consultation duties concerning discarded alternatives was left unresolved because the first-instance judge had found that the only realistic alternative was presented and that consultees had a meaningful opportunity to respond. An inaccurate suggestion about free school transport was corrected and reconsidered by the authority; standing alone, it did not justify reopening the decision-making process. Permission to appeal was refused.

The claimants challenged a local authority cabinet decision to withdraw funding for full-time free nursery education for three-year-olds from September 2015. They relied on the childcare sufficiency duty in the Childcare Act 2006 and alleged inadequate consultation, including failure to consult on alternatives and misleading material about free transport.

Patterson J granted permission for the substantive judicial review but dismissed it. Following Bean LJ’s refusal of permission on the papers, the claimants renewed their application in the Court of Appeal. The central question was whether any ground had a realistic prospect of success.

Permission to appeal was refused. Although the issues were important, the prospect of reaching a different conclusion from Patterson J was remote.

1. Childcare duty. Section 22 of the Childcare Act 2006 imposes an open-textured duty, qualified by reasonable practicability. It is neither an absolute requirement nor a duty capable of being reduced to a precise duty of result. Compliance necessarily involves predictive judgments about future childcare demand, parental circumstances and the provision individual schools might make from their own resources. The Council’s estimates were therefore not required to achieve certainty. Its estimate that 40 to 60 per cent of schools might continue providing full-time nursery education was, in the event, conservative, since 65 per cent were expected to do so. There was no realistic prospect that its approach would be held insufficient.
2. Consultation on alternatives. The court noted the debate in Moseley v Haringey London Borough Council [2014] 1 WLR 3947 concerning whether consultation about a proposal necessarily requires consultation on possible alternatives. It also noted the different emphases in Lord Wilson’s discussion and Lord Reed’s observation. The issue did not arise for decision because Patterson J had found that the only realistic alternative was presented and that the public had a meaningful opportunity to respond. A possible confusion about the chronology of the draft-budget consultation did not make that evaluative conclusion realistically challengeable.
3. Transport information. The consultation material was misleading to the extent that it suggested the withdrawal of free transport followed inevitably from moving to part-time nursery education. The Council recognised the mistake and properly reconsidered the transport issue, just as it separately reconsidered free school meals. This minor point, viewed in the overall scheme, was insufficient to justify reconsideration of the decision-making process.

Floyd LJ agreed with Tomlinson LJ.

• Court of Appeal (Civil Division) The renewed application for permission to appeal was refused: [2015] EWCA Civ 905.
• Court of Appeal Bean LJ had refused permission on the papers.
• High Court, Administrative Court Patterson J granted permission for the substantive judicial review but dismissed the claim. No citation for that decision was stated in the judgment.