A & Ors, R (On the Application Of) v Oxfordshire County Council

Permission to appeal may be granted where the proposed challenge is arguable and might succeed, even though the court considers that success unlikely. The permission decision is not a determination of the merits. Where the proposed appeal challenges the first-instance judge’s assessment of evidence concerning the decision-maker’s approach, permission may be appropriate if the evidential conclusion is arguably open to challenge and could affect the legality of the decision under appeal. The importance of the issue and the need for an expedited hearing may also support granting permission.

The applicants sought permission to appeal from Langstaff J’s judgment of 7 October 2016 concerning Oxfordshire County Council’s reorganisation of its Children’s Centres. They argued that the Council had failed to consult adequately on critical matters, including the Public Sector Equality Duty, before setting its budget, and that the Cabinet later treated a proposed £6 million reduction as an unavoidable constraint when deciding the detailed changes.

The proposed appeal principally challenged the first-instance judge’s reliance on evidence from the responsible Cabinet member and his conclusion that the Cabinet was not constrained by the earlier financial plan. The central question was whether that challenge was sufficiently arguable to justify permission.

1. Permission granted. Lord Justice Irwin considered that the applicants’ principal argument might succeed. The challenge was directed to the reliability of the evidence relied on by Langstaff J and to whether his conclusion about the Cabinet’s approach was properly open on the evidence.
2. The proposed challenge was not unarguable. Although the judge considered it unlikely that the appeal would ultimately succeed, that assessment did not prevent permission being granted where the argument might succeed. The permission decision therefore involved no final determination of the underlying consultation, equality-duty or budgetary issues.
3. The judge recorded that the first-instance decision concerned whether there had been sufficient consultation of critical and obligatory matters before the budget was set, and whether the Cabinet later treated the planned reduction in Children’s Centres funding as a practical constraint. The authorities cited included R(Hunt) v North Somerset Council [2013] EWCA Civ 1320, R(Fawcett Society) v Chancellor of the Exchequer [2010] EWHC 3522 (Admin) and R(JG) v Lancashire County Council [2011] EWHC 2295 (Admin), but no substantive ruling on those authorities was given.
4. Given the importance of the issues to the parties and to the general approach to such decisions, permission was granted. An expedited hearing was arranged for the first part of December, allowing time for preparation.

• Court of Appeal (Civil Division): permission to appeal granted from the judgment of Langstaff J dated 7 October 2016. The proposed appeal concerned the legality of Oxfordshire County Council’s consultation and subsequent decision-making about its Children’s Centres.