DAT & Anor, R (on the application of) v West Berkshire Council

A local authority reducing funding for services must direct its decision-makers to the statutory questions and all mandatory relevant considerations. An accurate and complete paraphrase may suffice, but a general formula which omits relevant matters is inadequate.

The public sector equality duty requires reasonable inquiry and an understanding of the likely impact on protected groups. It does not require a particular outcome, mathematical precision or equal weighting of equality considerations. A reconsideration framed as reaffirmation, where members are told they cannot rescind the earlier decision, may give rise to apparent predetermination and cannot cure earlier unlawfulness.

Two disabled children sought judicial review of West Berkshire Council’s budget decisions of 1 March and 31 May 2016. The first decision reduced funding for voluntary-sector short-break services. The second purported to reaffirm the first after permission to challenge it had been granted.

The claim raised the statutory duties governing short breaks, child welfare, best value and the public sector equality duty under the Equality Act 2010. It also concerned apparent predetermination and the availability of relief under the Senior Courts Act 1981. The central issues were whether the Council had been properly directed to the applicable legal questions and whether the second decision validly reconsidered and replaced the first.

1. Decision 1 was unlawful. The Council had gathered sufficient factual material for members to understand the likely practical impact of the funding reduction. However, the reports did not direct members to the substance of regulations 3 and 4 of the Breaks for Carers of Disabled Children Regulations 2011, section 27(2) of the Children and Families Act 2014, section 11(2) of the Children Act 2004, or the applicable best-value guidance. The repeated general formula concerning equality did not accurately replace the statutory test in section 149 of the Equality Act 2010.
2. The public sector equality duty required reasonable inquiry and an understanding of the actual or likely impact on the relevant equality needs. Due regard was what was appropriate in all the circumstances. The duty was substantive, but did not require a particular result, precise mathematical information or equal weight for equality considerations.
3. Decision 2 was ineffective. The material supplied for the May meeting adequately explained the relevant statutory duties and the factual consequences of the proposed reduction. Nevertheless, the motion was presented as one to reaffirm the earlier decision, and members were told that they could not rescind it because of the Council’s procedural rule. That created a clear appearance of predetermination. Decision 2 therefore had no effect and could not cure the defects in decision 1.
4. The court was not satisfied that the outcome would highly likely have been substantially the same under section 31(2A) or section 31(3C) of the Senior Courts Act 1981. The unallocated transitional grant and possible use of reserves left room for a different funding decision. Even if that conclusion were wrong, exceptional public interest justified relief. The court’s provisional view was that both decisions should be quashed, without a separate mandatory order or declaration, subject to further written submissions.

First instance judicial review. Permission had previously been granted to challenge decision 1. Permission to challenge decision 2 was considered in this judgment and was not refused.