Sarah Pollock, R (on the application of) v CYSUR: Mid and West Wales Safeguarding Children Board

A statutory body has only the powers conferred by the legislation establishing it, together with powers properly incidental to its statutory functions. A successor safeguarding board does not acquire wider powers merely because it replaced an earlier board. Where a document was created under an abolished statutory regime and is unrelated to the successor board’s current functions, the successor board has no implied power to disclose or direct disclosure of it. Any power implied into the current regulations must relate to the exercise of a function under those regulations. A decision made without such power is ultra vires and has no operative effect; there is no purpose in quashing it.

The claimant, whose daughter died in 2012, sought disclosure of an Overview Report produced by the former Pembrokeshire Safeguarding Children Board following a Serious Case Review under the Children Act 2004 and the Local Safeguarding Children Boards (Wales) Regulations 2006. The report was completed in 2014 and remained unpublished, apart from its Executive Summary.

After the claimant’s request was considered by a local operational group associated with CYSUR, disclosure was refused. Earlier proceedings had established that the decision was taken by CYSUR and that the claim was brought in time. The central issue was whether CYSUR, constituted under the Social Services and Well-being (Wales) Act 2014 and the Safeguarding Boards (Functions and Procedures) (Wales) Regulations 2015, had power to disclose or direct disclosure of the earlier report.

1. Claim dismissed. CYSUR had no power to disclose or direct disclosure of the Overview Report. Its purported decision was ultra vires and had no effect.
2. The Report was produced by the former Pembrokeshire Safeguarding Children Board under the regime in sections 31 to 34 of the Children Act 2004 and the Local Safeguarding Children Boards (Wales) Regulations 2006. Serious Case Reviews were abolished before CYSUR was created, and the former board was abolished immediately before CYSUR’s establishment. CYSUR’s functions and powers therefore derived from the Social Services and Well-being (Wales) Act 2014 and the Safeguarding Boards (Functions and Procedures) (Wales) Regulations 2015.
3. The distinction between the former and current regimes was substantive, not merely terminological. The Report played no part in the exercise of CYSUR’s functions under section 135 of the 2014 Act or regulation 3 of the 2015 Regulations. The fact that CYSUR was asked to disclose the Report did not create any relevant legal relationship, power or obligation.
4. Regulation 3(2)(c) of the 2015 Regulations, concerning relevant reviews, could not assist the claimant. CYSUR was not undertaking a relevant review. The meaning of that function had to be assessed by reference to the statutory objectives of Safeguarding Children Boards. The other functions relied on had no bearing on disclosure; treating disclosure as part of facilitating research under regulation 3(2)(g) would stretch the provision beyond its proper meaning.
5. Any implied power under the 2015 Regulations would, at minimum, have to relate to the exercise of a statutory function under that regime. The court did not decide whether the former 2006 regime permitted disclosure of Overview Reports to persons beyond the specified recipients, and rejected executive guidance as an admissible tool for statutory interpretation.
6. The claimant’s substantive grounds of review therefore did not fall for determination. The court noted that the Council accepted that it held the Report as part of its records and that a request under the Freedom of Information Act 2000 would require consideration on its own merits. Consequential matters were adjourned to a short further hearing.

Earlier permission proceedings and certain preliminary issues were determined by HHJ Jarman KC in [2022] EWHC 1899 (Admin). The present court accepted the finding that CYSUR made the decision under challenge, but dismissed the claim because CYSUR lacked power to make it.