L & P v Warwickshire

The claimants sought judicial review challenging Warwickshire County Council's cuts to the Integrated Disability Service (IDS) and the adequacy of its consultations and Local Offer under the Children and Families Act 2014 and associated regulations. The court treated the principal challenge to the decision to cut funding as arising from the full council's budget decision of 5 February 2013 and held that the challenge was out of time under the three month rule. The judge applied established common law principles on consultation and legitimate expectation (derived from Plantagenet and related authorities) and found that, save for discrete procedural defects, the consultations carried out addressed means of implementation rather than the political decision to cut budgets and did not amount to conspicuous unfairness.

The court found grounds A, B and C to be unarguable and refused permission on them (delay and merits). Permission was granted on two narrower points: Ground D (the draft Local Offer published for consultation was deficient in many respects and required further work) and Ground E (the council was in breach of its long-standing duty under Schedule 2 to the Children Act 1989 to maintain a register of disabled children and must remedy that breach).

Background and parties. Two disabled children (L and P, by their litigation friends) challenged Warwickshire County Council in judicial review. They alleged unlawful failure to consult properly about cuts to social care for disabled children, failings in the Local Offer consultation and publication under the Children and Families Act 2014 and related statutory instruments, and the council's failure to maintain a register of disabled children required by Schedule 2 to the Children Act 1989.

Nature of the application. The claimants sought permission for judicial review and, if granted, substantive remedies including declarations that consultations were unlawful, that the Local Offer was non-compliant with Regulations and Schedule 2, and that the council was in breach of its register duty.

Procedural posture. This was a rolled-up hearing in the Administrative Court for permission and, if permitted, substantive relief; no earlier appellate history is stated.

Issues framed. The main issues were: (i) whether a common law duty to consult (or legitimate expectation) required consultation before the council's political decision to set the budget and implement cuts; (ii) whether any such duty had been breached and, if so, whether the claim was out of time; (iii) whether the Local Offer consultation complied with section 30 Children and Families Act 2014, the Special Educational Needs and Disability Regulations 2014 (notably Regulations 53–55 and Schedule 2) and the statutory Code of Practice; and (iv) whether the council had lawfully failed to maintain the disabled children register under Schedule 2 to the Children Act 1989.

Court's reasoning. The judge reviewed the common law principles governing consultation (as summarised in Plantagenet and related authority) and emphasised the high threshold for imposing a common law duty to consult where political decisions are involved. He held that the substantive decision to cut the IDS budget was taken at full council on 5 February 2013, so the claim (issued December 2014) was out of time under CPR 54.5(1), following Nash v Barnet LBC. Even on the merits, the court found no category (i) or (ii) legitimate expectation or established practice and no exceptional category (iii) case of conspicuous unfairness akin to Luton BC. On the Local Offer, the judge recognised the heavy statutory and regulatory prescription governing content and consultation and concluded that, while the council had consulted on social care eligibility and carried out multiple consultations, the draft Local Offer as published remained materially deficient against Schedule 2 and required further work; permission was granted on that point so the court could make a formal finding of deficiency. Finally, the court found the admitted failure to maintain a central register of disabled children to be unlawful and granted permission to record that breach and the obligation to remedy it.

Wider context. The judgment noted constitutional caution in interfering with democratically taken budgetary decisions, emphasised the limited and high-threshold role of the common law duty to consult, and recognised that Local Offers are iterative and subject to co-production and updating, while nonetheless requiring compliance with statutory content and consultation obligations.

Permission for judicial review was refused on Grounds A, B and C. Ground A (challenge to the substantive budget decision) was time-barred and in any event unarguable; Grounds B and C (complaints about the fairness of consultations and alleged departures from statutory guidance on section 17 assessments) were unarguable. Permission was granted on Ground D and Ground E: the court held that the published draft Local Offer was deficient in numerous respects contrary to the requirements of the Regulations and Schedule 2 and that the council was in breach of its duty to maintain a register of disabled children under Schedule 2 to the Children Act 1989 and must promptly remedy that breach.