R (A) v Oxfordshire County Council

The claim was a judicial review challenge to Oxfordshire County Council's budget-setting decision of 16 February 2016 and the Cabinet decision of 23 February 2016 to reorganise children’s centres. The central legal principles engaged were the public sector equality duty (Section 149 Equality Act 2010), consultation obligations and the Childcare Act 2006 duties (notably section 5A and section 5D) to assess local need for children’s centres. The court analysed whether the Cabinet impermissibly treated the Medium Term Financial Plan (MTFP) as a fixed constraint and thereby failed to discharge the statutory duties to consult, to assess need and to have due regard to equality. The judge concluded that the Cabinet did not treat the MTFP as immutable, that the full Council had considered equality and impact material when setting the budget, and that the Cabinet had before it Service and Community Impact Assessments and consultation material when deciding the reorganisation. Permission was refused and the application dismissed.

The claimants, two children represented by their mothers as litigation friends, sought judicial review of two decisions: the County Council's budget and Medium Term Financial Plan approved on 16 February 2016 and the Cabinet's decision on 23 February 2016 to develop eight children and family centres in place of the existing open access children’s centres. The claimants contended that the Cabinet unlawfully proceeded on the basis that the MTFP embodied a fixed decision to cut funding by £6 million, that the Council and Cabinet failed to discharge duties under the Childcare Act 2006 (including the requirement in section 5D to consult before significant changes) and failed to comply with the public sector equality duty in section 149 of the Equality Act 2010.

The court framed the issues as: (i) whether consultation under section 5D and assessment of local need had been carried out at the appropriate stage; (ii) whether the PSED had been discharged by the decision-makers at the time they made their respective decisions; and (iii) whether the Cabinet impermissibly treated the MTFP as a given thereby foreclosing lawful consideration of need and equality.

The judge reviewed relevant authorities on the PSED and consultation, including Bracking, Hotak, Moseley, Fawcett, Domb and JG (Lancashire). He analysed the factual material: the history of the MTFP, the consultation exercise undertaken in late 2015, Service and Community Impact Assessments produced in 2013-2016, and the minutes and reports to Council and Cabinet. The court accepted evidence from the lead cabinet member that the MTFP was a flexible planning instrument and that Cabinet was not strictly bound by it. The judge concluded that Council, when setting the budget, had access to impact assessments, knew of consultation responses and engaged with equality considerations in substance; and that the Cabinet, when making the operational decision on 23 February 2016, had considered the consultation outcome, SCIAs and equality implications. On the factual matrix the claim failed: the MTFP was not treated as fixed, the PSED had been addressed in substance by Council and Cabinet, and consultation obligations had been respected in the decision-making sequence. Permission to proceed was refused and the claim dismissed.

First instance: The application for judicial review is refused and permission is denied. The court held that on the facts the Cabinet did not treat the Medium Term Financial Plan as a fixed constraint; the full Council had engaged with equality and impact material when setting the budget; and the Cabinet had before it consultation material and Service and Community Impact Assessments and thereby satisfied the requirements to consult, to assess need under the Childcare Act 2006 and to have due regard under section 149 of the Equality Act 2010. Accordingly the claim is untenable on the facts and was dismissed.