Clarke, R (On the Application Of) v Birmingham City Council (Rev 1)

A public decision-maker need consider matters which a statute expressly or impliedly requires it to consider. In the absence of such a requirement, a failure to consider a matter is unlawful only where it is so obviously material that a duty to consider it is implied. The decision-maker ordinarily identifies other potentially relevant matters and their weight, and need not address every argument made against its decision.

A local authority's fiduciary duty to its ratepayers has a limited public-law role. It does not permit general judicial review of a discretionary decision made within statutory powers and in good faith. It is not engaged by a merely theoretical financial conflict.

The appellant, a tenant in a Birmingham City Council tower block, challenged the Council Cabinet's confirmation of a programme to retrofit sprinklers to all its tower blocks following the Grenfell Tower fire. The programme involved anticipated expenditure of about £31 million.

The Cabinet had made an in-principle decision in June 2017 and subsequently made budgetary provision. Following a call-in, the Housing and Homes Overview and Scrutiny Committee asked the Cabinet to reconsider whether the expenditure was justified and whether a block-by-block approach should be adopted. On 24 May 2018 the Cabinet considered the Executive Response and confirmed its decision.

His Honour Judge David Cooke, sitting in the Administrative Court, dismissed the judicial-review claim: [2019] EWHC 1728 (Admin). The appeal concerned whether the Cabinet unlawfully failed to consider the value-for-money issue, specified objections, and an asserted fiduciary duty to taxpayers and ratepayers.

1. Appeal dismissed. The June 2017 Cabinet resolution was a formal in-principle decision to retrofit sprinklers. The earlier decisions and their supporting material were relevant context when assessing the May 2018 confirmation decision. The Cabinet was not required to repeat every earlier consideration.

2. A decision-maker must consider matters which the governing statute expressly or impliedly identifies as mandatory. Otherwise, subject to the qualification concerning Human Rights Act cases, a failure to consider a matter is reviewable only on the Wednesbury standard. The decision-maker generally determines which other matters are potentially relevant and their weight. It need not consider every argument for and against a decision.

3. Housing Act 1985 sections 9 and 21 conferred the Council's power in broad and permissive terms. They imposed no duty to consider the appellant's value-for-money objections or his further specified matters. The Cabinet had in fact considered the balance between cost and fire-safety benefit from the outset. It considered expert fire-service advice, the suggested block-by-block alternative, the position under building regulations, and the absence of central-government funding. It was entitled to proceed without further delay.

4. A local authority may in limited circumstances owe a fiduciary or analogous duty to council-tax and business-rate payers. But that duty does not open a general route for the court to investigate discretionary decisions which are within power and genuinely made. Established breaches involved extreme or arbitrary conduct, and a local authority must fairly balance duties only where interests to which such duties are owed genuinely conflict.

5. No such conflict arose here. The appellant was a tenant, not a person to whom the asserted fiduciary duty was owed. The applicable housing-finance regime meant that council-tax and business-rate payers could not fund the works, while the prospect of future liability if the ring-fenced Housing Revenue Account failed was entirely theoretical. There was no arbitrary conduct and the fiduciary-duty argument added nothing to the value-for-money challenge.

• Court of Appeal (Civil Division): dismissed the tenant's appeal and upheld the Cabinet's decision to confirm the sprinkler-retrofitting programme.
• High Court, Administrative Court: His Honour Judge David Cooke dismissed the claim for judicial review of the May 2018 Cabinet decision: [2019] EWHC 1728 (Admin).