Clarke, R. (On the Application of) v Birmingham City Council

In reviewing a discretionary public spending decision, a matter is not legally mandatory merely because it could properly be considered or might realistically have affected the outcome. The claimant must identify an express or implied legal obligation requiring the decision-maker to take it into account. In the absence of such an obligation, the choice of relevant matters and the weight given to them remain matters for the decision-maker, subject to rationality review. This approach applies to budget decisions, including decisions adjusting an existing budget. A decision-maker may decline to commission a detailed value-for-money investigation where it has addressed the question and rationally preferred identified policy imperatives. Reasons need not always be given for internal administrative decisions, but any assumed duty to give sufficient reasons was satisfied here.

The claimant sought judicial review of Birmingham City Council Cabinet’s decision confirming expenditure from the council’s capital budget to retrofit sprinkler systems in its tower blocks following the Grenfell Tower fire.

Limited permission was granted on grounds that the Cabinet had failed to consider relevant matters, or had failed to give sufficient reasons for rejecting them. The claimant relied on fire-safety evidence, existing protective measures, cost, disruption, alternative spending priorities and the possibility of future demolition. The central issue was whether the Cabinet was legally required to undertake a more detailed assessment of the safety benefits and value for money of the proposed works.

1. The claim was dismissed. The Cabinet had already approved the proposal to install sprinklers in 2017. The later decision concerned the capital budget, but the merits and value of proposed expenditure remained legitimate matters for councillors and scrutiny bodies to raise in the budget process.
2. The fact that a matter is potentially relevant, permissible for consideration, or capable of affecting the result does not make it legally mandatory. Following Derbyshire Dales DC v Secretary of State for Housing, Communities and Local Government [2009] EWHC 1729 (Admin), the court must identify an express or implied legal principle requiring the matter to be considered. Short of such an obligation, the selection and weighting of considerations are for the decision-maker, subject to irrationality review.
3. No statutory or equivalent legal obligation required the Council to investigate the detailed fire risk, commission an expert report, or conduct a value-for-money assessment before approving the expenditure. The Cabinet was entitled to decide that the policy imperatives identified in the executive response and discussion outweighed the advantages of further investigation.
4. The Cabinet had addressed the question raised by the Scrutiny Committee. Its discussion referred to expert fire-service advice, the position of new buildings under revised Building Regulations, and concerns about the evidential basis for the proposal. Its conclusion that further scrutiny should not delay installation was legally open to it.
5. Even assuming a duty to give reasons existed, the reasons were sufficiently apparent: the Cabinet considered that the reasons for proceeding without delay outweighed the potential advantages of further analysis. The court therefore identified no legal error.
6. Obiter, if the Cabinet had been legally required to consider value for money, the court could not have concluded that a detailed investigation could not possibly have affected the outcome. The issue did not arise because permission had not been granted on irrationality grounds.

Permission was initially refused on the papers by HHJ McCahill QC on 26 October 2018. On renewal, Andrews J granted limited permission on 11 February 2019, refusing permission on the remaining grounds. The Administrative Court dismissed the substantive judicial review claim.