L & P v Warwickshire

A local authority’s decision to set its budget and reduce funding is a political decision, but it remains subject to ordinary public-law controls. A common-law duty to consult arises only where there is a statutory duty, a clear promise, an established practice, or exceptional conspicuous unfairness amounting to an abuse of power. The court will intervene especially cautiously where the decision was made through democratic processes. Consultation, once required, must not have gone clearly and radically wrong. A statutory Local Offer is principally an obligation to publish information about expected provision; it is not itself a decision about whether services should be provided. Statutory guidance need not be read as requiring an automatic full social-work assessment for every disabled child. A materially deficient Local Offer and failure to maintain the statutory register of disabled children may nevertheless justify declaratory relief.

The claimants were two disabled children challenging decisions and consultation processes of Warwickshire County Council concerning reductions in funding for social-care services, the preparation of a statutory Local Offer, assessment arrangements, and the absence of a register of disabled children.

The rolled-up hearing concerned permission to apply for judicial review and, where permission was granted, substantive relief. The principal issue was whether the council had acted unlawfully by failing to consult before approving the budget reductions or by conducting defective consultations concerning the Local Offer.

1. Ground A: The substantive decision to make the relevant cuts was taken at the full council meeting on 5 February 2013. Later consultations concerned implementation and detail, not whether the cuts should be made in principle. The claim was therefore seriously out of time under CPR 54.5(1), and permission was refused.
2. The court adopted the principles collected in R (Plantagenet Alliance Ltd) v Secretary of State for Justice [2014] EWHC 1662 (QB). A common-law duty to consult may arise from a statutory duty, a clear promise, an established practice, or exceptional circumstances in which failure to consult would cause conspicuous unfairness. A promise or established practice also requires unfairness amounting to an abuse of power. The duty must have predictable and finite limits.
3. Where a duty to consult exists, the consultation is unlawful only if something has gone clearly and radically wrong. The approach in R (Moseley) v Haringey LBC [2014] 1 WLR 3947 did not alter that high common-law threshold.
4. The budget decision was taken through regular democratic and constitutional procedures. It was not remotely comparable to the abrupt termination of approved projects in R (Luton BC and others) v Secretary of State for Education [2011] EWHC 271 (Admin). The absence of prior consultation was not conspicuously unfair or an abuse of power.
5. Ground B: The Local Offer consultation was not unlawful. The relevant consultations concerned the information to be included about eligibility and expected services, not whether services or budget reductions should exist. The consultation had not gone clearly and radically wrong.
6. Ground C: The challenge to the assessment threshold was unarguable. Although section 17 of the Children Act 1989 treats a disabled child as a child in need, the guidance did not require every disabled child automatically to receive a full social-worker assessment. Alternatively, there was good reason to adopt a graduated approach involving early-help assessments.
7. Ground D: Permission was granted because the proposed Local Offer fell considerably short of the detailed requirements of the Special Educational Needs and Disability Regulations 2014. The court formally found the draft deficient, without granting further substantive relief.
8. Ground E: Permission was granted and the court formally declared that failure to create and maintain a register of disabled children under Schedule 2 to the Children Act 1989 was unlawful. The council was obliged promptly to remedy that breach.