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

Where a public authority consults on a discretionary service change, fairness is context-specific. The authority must explain the proposal and why it is under positive consideration, provide enough information for an informed response, allow sufficient time, and conscientiously consider the responses. Fairness does not invariably require consultation on every rejected alternative. It may require realistic alternatives to be identified where necessary for meaningful participation, but the scope depends on the subject, consultees and prior consultation. A consequential measure forming part of a single package need not receive a separate consultation if it is clearly disclosed. A Welsh local authority’s childcare sufficiency duty is a target duty owed at community level. It permits consideration of resources and capabilities, but requires reasonable steps to investigate and address childcare gaps, including affordability, so far as reasonably practicable.

The claimants challenged the defendant Council’s February 2015 decision to replace free full-time nursery education from age three with up to 15 hours of free part-time provision, while retaining full-time provision from age four. The change also removed free home-to-school transport for affected part-time pupils, although free school meals were retained for eligible children.

The claim was brought by judicial review on two grounds: that the consultation was unfair, particularly because it did not sufficiently address alternatives, transport, financial information and childcare consequences; and that the Council had failed to comply with its duty under section 22 of the Childcare Act 2006 to secure sufficient childcare for working parents. The earlier decision concerning the 2014/15 year had been quashed in R (West) v Rhondda Cynon Taf County Borough Council [2014] ELR 396.

1. Claim dismissed. The consultation was fair in the circumstances and the Council had discharged its section 22 childcare sufficiency duty.
2. The governing consultation principles, stated through R (Moseley) v Haringey London Borough Council [2014] 1 WLR 3947 and R v North and East Devon Health Authority, ex p Coughlan [2001] QB 213, required the Council to identify the proposal clearly, explain why it was under positive consideration, provide sufficient information for an informed response, allow sufficient time, and conscientiously consider the consultation product. Fairness was highly context-specific.
3. There was no inviolable rule that all alternatives must be consulted upon. The extended consultation identified the status quo and another full-time option, with reasons for their rejection. Other financial measures had already been considered through the Council’s wider budget consultation and were not realistic alternatives within this focused nursery-funding consultation. The preferred option could properly be presented.
4. The removal of free transport was a disclosed and costed consequential element of the nursery-funding package. It did not require a separate consultation. Detailed financial modelling was unnecessary and would have imposed inappropriate complexity on a public consultation. The published deficit figures were not misleading, and the consultation materials fairly explained the childcare position.
5. The section 22 duty was a target duty owed generally in respect of the Council’s area. It did not require the Council to provide childcare directly or to meet every family’s individual needs. The phrase “so far as reasonably practicable” permitted consideration of the Council’s resources and capabilities.
6. The Council had asked the right question and taken reasonable steps to inform its decision. The officer report considered the increased demand caused by reduced nursery hours, likely wrap-around provision, schools’ possible continuation of full-time nursery education, childcare providers, monitoring, and affordability. The Cabinet could be taken to have adopted the reasoning in the officer report when accepting its recommendations.
7. The assumptions about future provision could not be based on certainty. They were reasonable assumptions, supported by available information, and accompanied by arrangements for monitoring and further action. The Council therefore complied with section 22 so far as reasonably practicable.

Permission would have been granted for the claim to proceed to a substantive hearing, but the judicial review was dismissed.

First-instance judicial review. The judgment records that the earlier decision concerning the 2014/15 academic year was quashed on 23 May 2014 in R (West) v Rhondda Cynon Taf County Borough Council [2014] ELR 396.