R (DAT) v West Berkshire Council

The court considered judicial review challenges to two full Council decisions reducing funding for voluntary organisations providing short breaks for disabled children. Key legal principles applied were (i) the statutory duties under the Children Act 1989 (section 17 and Schedule 2, paragraph 6), the Breaks for Carers of Disabled Children Regulations 2011 (regulations 2–5), the Children and Families Act 2014 (section 27), and the duty in section 11 of the Children Act 2004; (ii) the public sector equality duty in section 149 of the Equality Act 2010 requiring due regard and a reasonable inquiry into equality impacts; and (iii) public law rules against predetermination and requirements for members to be given the mandatory relevant considerations when making budgetary decisions.

The judge found that decision 1 (1 March 2016) was unlawful because members were not given assistance that focused them on the mandatory statutory considerations under the Breaks Regulations, Schedule 2 to the Children Act 1989, section 27 of the 2014 Act and section 11 of the 2004 Act; and because the equality material in the papers directed members to a generalised formula that did not accurately capture the effect of section 149 in that context. Decision 2 (31 May 2016) was held to be affected by a clear appearance of predetermination because members were told they could not rescind the March decision; accordingly decision 2 had no effect and could not cure the defects in decision 1. The court concluded that relief (quashing) was appropriate in relation to the challenged decisions, subject to further limited written submissions on remedy.

Background and parties: This is a first-instance judicial review in the Administrative Court. The claimants are two disabled children (by their mothers as litigation friends) who challenged West Berkshire Council's budget decisions to cut funding to voluntary organisations providing short breaks for disabled children. The defendant is West Berkshire Council. The decisions under challenge are decision 1 (1 March 2016), made when the Council set its budget, and decision 2 (31 May 2016), a full Council resolution purporting to reaffirm decision 1 after permission to apply for judicial review had been granted.

Relief sought: The claimants sought declarations of unlawfulness, partial quashing of the decisions and a mandatory order requiring the Council to make a new decision about funding for short breaks.

Procedural posture: Permission had been given to challenge decision 1 but not decision 2 at the outset; the court considered whether to grant permission for decision 2 and whether the decisions were unlawful.

Issues framed by the court:

• Whether the Council erred legally by failing to ask itself the right questions or to take into account mandatory relevant considerations under the statutory framework governing short breaks (the "legality issue");
• Whether the Council gave "due regard" to equality duties in section 149 of the Equality Act 2010;
• What relief should be granted, having regard to section 31 of the Senior Courts Act 1981 and the Local Government Finance Act 1992.

Facts (concise): The Council faced severe and sudden grant reductions and had to propose savings across 47 service areas. It consulted in two phases, engaged providers and some families, and produced officer reports containing consultation summaries, equality impact assessments and legal briefings. The Council cut its short breaks budget by 12.8% overall and reduced funding to voluntary providers by 52%. Officers' papers included references to equality duties but repeatedly presented a short formulaic summary of the public sector equality duty which was used across many proposals.

Court's reasoning: The judge accepted the acute financial pressures and that officers had assembled a substantial factual matrix including consultation responses and provider information. However, on the legality issue she found that the members were not directed to the specific mandatory considerations imposed by regulations 3 and 4 of the Breaks Regulations, paragraph 6 of Schedule 2 to the Children Act 1989, section 27(2) of the Children and Families Act 2014 or the section 11 duties under the Children Act 2004. The equality material repeatedly pointed members to a general formula that did not accurately reflect the operation of section 149 in that decision context; this presentation risked diverting members from the precise statutory questions they were required to ask. On decision 2 the court found there was a clear appearance of predetermination because members were told they could not rescind the March decision; consequently the May decision could not cure the defects in March. The judge also considered but rejected arguments that relief should be refused under section 31(2A)/(3C) of the Senior Courts Act 1981 or be restricted by the Local Government Finance Act 1992.

Outcome on remedies: The judge concluded that decision 1 was unlawful and should, subject to limited further submissions, be quashed. Decision 2 was also unlawful and ineffective to replace decision 1 because of apparent predetermination; permission to challenge decision 2 was regarded as arguable and should not be refused. The judge provisionally concluded quashing both decisions was appropriate and that a mandatory order for reconsideration was not necessary as quashing will require the Council to reconsider.

First instance: The court held that decision 1 (1 March 2016) was unlawful because members were not given assistance that brought the mandatory statutory considerations (notably regulations 3 and 4 of the 2011 Regulations, paragraph 6 of Schedule 2 to the Children Act 1989, section 27(2) of the Children and Families Act 2014 and section 11 of the Children Act 2004) properly to their attention, and because the equality material misdirected members as to the operation of section 149 of the Equality Act 2010. Decision 2 (31 May 2016) was vitiated by an appearance of predetermination as councillors were told they could not rescind the March decision; accordingly decision 2 could not cure decision 1. The judge concluded (provisionally and subject to limited written submissions on remedy) that decision 1 should be quashed and that permission to challenge decision 2 should be granted and that decision 2 should also be quashed for the reasons given.