Williams, R (On the Application Of) v Caerphilly County Borough Council

A local authority cabinet may adopt a general, non-prescriptive strategy for discretionary services where no statute or regulation reserves the decision to the full council. A strategy does not become a budget or capital-expenditure decision merely because implementation may later require substantial spending. The question is whether adoption itself is a firm decision committing expenditure outside an existing budget or capital plan.

Detailed long-term costings need not be obtained where implementation options and uncertainties make estimates of limited value, provided financial matters are addressed as proposals mature. The general improvement duty in section 2 of the Local Government (Wales) Measure 2009 concerns high-level arrangements to secure continuous improvement. It does not apply to every strategic or ordinary service decision, so its associated consultation duty is not universal.

The appellant, a regular user of Pontllanfraith Leisure Centre, challenged the council cabinet’s adoption of a ten-year strategy for sports and recreation facilities. The strategy proposed four strategic leisure centres and stated that other facilities might transfer to school management or close, subject to later decisions.

Swift J dismissed the challenge to adoption of the strategy but held that the later closure decision was unlawful for failure to comply with the public sector equality duty: [2019] EWHC 1618 (Admin). Only the challenge to adoption of the strategy was appealed. The issues were whether adoption was reserved to the full council, whether the cabinet had to obtain further cost information, and whether the decision engaged the improvement and consultation duties under the Local Government (Wales) Measure 2009.

1. The appeal was dismissed. The court was concerned only with the lawfulness of adopting the strategy, not its merits or whether the leisure centre should ultimately close.
2. Under section 13 of the Local Government Act 2000, the default position is that a local authority function is the responsibility of the executive unless statute or regulations provide otherwise. Regulation 6 and Schedule 4 of the Local Authorities (Executive Arrangements) (Functions and Responsibilities) (Wales) Regulations 2007/399 qualify that default. No decision had been made by the full council to reserve adoption of the strategy to itself.
3. The strategy was a general policy document operating over ten years. It did not itself order the closure of particular facilities or commit the council to specified expenditure. The expression concerning a matter being concerned with the budget or capital expenditure has a relatively narrow focus on the direct consequences of the decision and an existing budget or plan. The distinction between approving a general strategy and implementing later operational decisions, explained in Buck v Doncaster Metropolitan Borough Council [2013] EWCA Civ 1190, [2014] PTSR 111, applied.
4. It was not irrational to adopt the strategy without comprehensive costings. The possible timing and form of implementation involved substantial uncertainty and multiple permutations. Detailed financial information could properly be considered when proposals concerning individual facilities were brought forward. The political risk that the strategy might not be affordable did not make its adoption unlawful.
5. The general duty in section 2 of the Local Government (Wales) Measure 2009 operates at a high level. It concerns arrangements intended to secure continuous improvement in the exercise of the authority’s functions generally. It is not limited to decision-making processes, but nor does it attach to every high-level or strategic decision. Nash v Barnet London Borough Council [2013] EWHC 1067 (Admin) showed that wholesale outsourcing could fall within the comparable best-value duty because it was an arrangement concerning how functions would generally be performed. The present strategy was qualitatively different: it was a plan for future recreational provision, not an arrangement to secure continuous improvement. The section 5 consultation obligation therefore did not arise.

It was unnecessary to decide whether ministerial guidance could assist construction of the Measure. Permission to appeal to the Supreme Court was refused. The appellant was ordered to pay the respondent’s appeal costs, subject to the statutory legal-aid assessment.

1. Court of Appeal (Civil Division): The appeal against paragraph 3 of the order of Swift J was dismissed. Permission to appeal to the Supreme Court was refused.
2. High Court of Justice, Queen’s Bench Division, Administrative Court in Wales: Swift J dismissed the challenge to adoption of the strategy but held that the subsequent closure decision was unlawful, as recorded in [2019] EWHC 1618 (Admin).