RD & Ors, R (on the application of) v Worcestershire County Council

This judicial review concerned the lawfulness of Worcestershire County Council's decision to withdraw Portage services from 1 October 2018 and, in particular, whether the Council honoured its express representation to devise and implement transitional arrangements to mitigate the withdrawal. The court examined the Council's decision-making, two Equality Impact Assessments, the Peridot review, consultation materials and subsequent conduct. Key legal issues were legitimate expectation, the Public Sector Equality Duty under s.149 Equality Act 2010, duties under s.27 Children and Families Act 2014, and statutory duties to have regard to the welfare of children under the Children Act and Education Act provisions.

The judge found that the August 2016 decision to cease Portage services was expressly premised on the Council providing transitional arrangements so that affected families could access alternative services. That representation was clear and unambiguous and gave rise to a legitimate expectation. The Council failed to devise or implement any genuine transition plan before the service ended and offered no adequate justification for that failure. The frustration of the legitimate expectation was therefore unlawful. The claim succeeded and the Claimants were entitled to a declaration to that effect.

Background and parties: The claimants were four pre-school children with significant disabilities who had received Portage (home-based early education and support) from Worcestershire County Council. The defendant Council decided in August 2016 to cease its dedicated Portage service from 1 October 2018. The Peridot report, consultation responses and Equality Impact Assessments featured in the administrative record.

Nature of the claim and relief sought: The claimants sought judicial review challenging the lawfulness of the withdrawal of Portage and associated conduct, including (i) an order requiring the Council to reconsider the decision to cease Portage with proper regard to statutory duties, and (ii) declarations and other relief. Grounds included alleged breaches of s.27 Children and Families Act 2014, duties under the Children Act 1989 and Education Act 2002, the Public Sector Equality Duty (s.149 Equality Act 2010), s.1 Childcare Act 2006, irrationality and legitimate expectation.

Procedural posture: Permission to proceed was granted and the claim was heard on an expedited timetable. The court had before it the Executive Report, the Peridot review, consultation materials, two Equality Impact Assessments (2016 and 2018), Ofsted/CQC correspondence and evidence from Council officers and parents.

Issues framed:

• Whether the Council fulfilled the statutory duties identified (including s.27 Children and Families Act 2014 and the PSED) before withdrawing Portage;
• Whether the Council made a clear representation that transitional arrangements would be devised and implemented and, if so, whether that gave rise to a legitimate expectation;
• Whether the Council's failure to prepare or implement transition plans was irrational or otherwise unlawful;
• Whether the claim was time-barred or susceptible to alternative remedies and whether relief would have produced a substantially different outcome.

Court's reasoning and conclusion: The judge concluded that the August 2016 decision was expressly premised on transitional arrangements being made and that this representation was clear, unambiguous and directed to a limited class of recipients. The representation created a substantive legitimate expectation that transition plans would be devised and implemented to secure alternative provision to meet needs previously addressed by Portage. There was no contemporaneous evidence of any proper transition planning or monitoring despite repeated recognition of potential adverse impact in the Equality Impact Assessments and in inspection correspondence. The Council's failure to produce or implement transition plans before the service ceased frustrated the legitimate expectation and was unlawful. Arguments as to delay and availability of alternative remedies were rejected as they did not address the core complaint (the absence of transition planning). The court granted a declaration that the legitimate expectation had been frustrated and left further consequential orders for agreement or further hearing.

First instance: The claim succeeded. The court held that the Council had made a clear and unambiguous representation, as part of its August 2016 decision to cease Portage, that transitional arrangements would be devised and implemented to mitigate the withdrawal; that representation gave rise to a legitimate expectation; and the Council unlawfully frustrated that expectation by failing to prepare or implement any genuine transition plan prior to 1 October 2018. The Claimants were therefore entitled to a declaration that the legitimate expectation had been frustrated. The court declined to dismiss the claim for delay or on the basis of alternative remedies.

Not an appeal. Prior procedural steps in the High Court were: King J granted anonymisation orders on 2 November 2018; Garnham J granted expedition on 8 November 2018; Butcher J granted permission to proceed on 28 November 2018 and directed an expedited substantive hearing before the end of February 2019. The substantive judgment is reported at [2019] EWHC 449 (Admin).