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Buck v Doncaster Metropolitan Borough Council

[2013] EWCA Civ 202

Case No: C1/2012/2339
Neutral Citation Number: [2013] EWCA Civ 202
IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE HIGH COURT OF JUSTICE

QUEEN’S BENCH DIVISION

ADMINISTRATIVE COURT

(MR JUSTICE HICKINBOTTOM)

Royal Courts of Justice

Strand, London, WC2A 2LL

Date: Wednesday, 23 January 2013

Before:

LORD JUSTICE AIKENS

Between:

BUCK

Respondent

- and -

DONCASTER METROPOLITAN

BOROUGH COUNCIL

Appellant

(DAR Transcript of

WordWave International Limited

A Merrill Communications Company

165 Fleet Street, London EC4A 2DY

Tel No: 020 7404 1400 Fax No: 020 7831 8838

Official Shorthand Writers to the Court)

Mr David Wolfe QC (instructed by Public Interest Lawyers Ltd) appeared on behalf of the Appellant.

The Respondent did not appear and was not represented.

Judgment

Lord Justice Aikens:

1.

This is a renewed application for permission to appeal from the decision of Hickinbottom J handed down on 1 August 2012. The application is made by Mr Wolfe QC on behalf of Doncaster Metropolitan Borough Council following a refusal to grant permission to appeal on paper by Sir Richard Buxton on 26 October 2012.

2.

The case concerns expenditure of money on libraries in the Doncaster MBC area. The MBC has what I will call a “directly elected mayor and cabinet” form of executive of the MBC, but there is, of course, a full council of elected local representatives. In this case the political persuasion of the majority of the full council is not the same as that of the Mayor and his cabinet. That may or may not be the root of the dispute, but that is not the point in the present application.

3.

In 2010 the Mayor and his cabinet adopted a strategy to reduce expenditure on libraries. On 4 February 2011 the Mayor decided to withdraw funds from 14 of the 26 libraries in Doncaster. On 23 November 2011, after various consultations, the Mayor and the cabinet decided to go ahead with the new “service delivery model” which involved closing some libraries and changing the nature of the service provided in others, including Mrs Buck's library at Scawthorpe. In December 2011 the Mayor presented his draft 2012/13 budget to a committee of the council and then to the full council in February 2012.

4.

It is pointed out by Mr Wolfe in the course of his submissions this morning that this last document talks about financial “strategy” and is a “strategic” document. The document proposed a reduction of some £533,000 in the “customer services and ICT budget”, which reduction was mainly attributable to the proposed changes in the library service.

5.

There was a full meeting of the council on 23 February 2012 and six amendments to the budget were proposed. The Mayor accepted five of them but not the amendment concerning the libraries, which was that a contingency budget should be created to provide support for 14 community libraries. Quite detailed proposals for how the funding was to be used were set out in the amendment. These are quoted at paragraph 16 of Hickinbottom J's judgment.

6.

The Mayor has stated that he and his cabinet have decided not to spend the money as proposed by this amendment. The issue before the judge was whether the stated intention was lawful. He held that it was.

7.

There are two broad elements to the argument put forward by Mr David Wolfe on behalf of the full council, both of which he says have a reasonable prospect of success in this court.

8.

The first argument is that the judge misconstrued section 31A(1) and (2) of the Local Government Finance Act 1992, which deals with the functions that a full council must undertake to calculate the aggregate of expenditure which the council estimates will incur -- I emphasise “will incur” -- in the year in performing its functions and that it will charge to the Revenue account under the aggregate of such allowances as the authority estimates will be appropriate for "contingencies" in relation to amounts to be charged or credited to the Revenue account for the year in question.

9.

The second argument concerns the construction of schedule 4, paragraphs (2) and (3) of the Local Authorities (Functions and Responsibilities) (England) Regulations 2000 ("the 2000 Regulations"). Schedule 4 deals with the circumstances in which functions that would otherwise be those of the Executive are to be taken away from the Executive and put in the hands of the full council. Paragraph (2) of Schedule 4 stipulates the determination of any matter in the discharge of the function of the Executive which is concerned with the authority's budget shall be not the responsibility of the Executive if the Executive is minded to "determine the matter" contrary to, or not wholly in accordance with, the authority's budget. Paragraph (3) of Schedule 4 provides that the determination of any matter in the discharge of a function which is the responsibility of the executive and in relation to which a plan or strategy has been adopted by the authority shall not be the responsibility of the Executive if the Executive is minded to determine the matter contrary, or not wholly in accordance with, the plan or strategy adopted or approved by the authority.

10.

The first argument concerning section 31A(2) is that the exercise undertaken by the council in making the libraries' amendment is that it involved the full council in discharging its function in calculating the aggregate of the expenditure which the authority estimates it will incur in the year in which it functions, with, as Mr Wolfe says, the emphasis on the words "will incur". The second argument concerns paragraphs (2) and (3) of Schedule 4 and takes two parts, first dealing with the budget and second dealing with the plan or strategy.

11.

I have, contrary to my first impressions, been persuaded by Mr Wolfe that he should have permission to appeal in respect of all the matters that are raised. I am not particularly impressed with the argument concerning section 31A(2) but I think that he should be allowed to advance those. I am more impressed with the arguments based on Schedule 4 of the 2000 Regulations. It seems to me that the judge did not, with great respect, deal at all with the argument based on paragraph (2) of Schedule 4 and he should have done.

12.

In relation to paragraph (3), Mr Wolfe submits that the judge, with great respect to him, did not focus on the particular argument which was being made, which was that the relevant plan or strategy was the draft budget that was put forward on behalf of the Mayor and cabinet and which is referred to as a “financial strategy”. It is in relation to that draft budget as eventually approved by the full council, including the amendment relating to the libraries, that the argument arises that the Executive is minded to discharge its function in relation to that plan or strategy as adopted or approved by the authority in a manner which is contrary to it. (I do not adopt the precise wording of the paragraph for these purposes).

13.

In making this decision I am conscious of the fact that, as the judge himself recognised at the outset of his judgment, this case raises an important wider issue of the division of the powers between a directly elected mayor and his cabinet on one side and a local authority's full council on the other. I have, in making this decision, also taken into account the letter that has been sent to the Court of Appeal office from Doncaster Metropolitan Borough Council dated 21 January 2013.

14.

It is true that this matter cannot now realistically be decided before the end of the financial year 2012/2013 and that events with regard to the libraries during this financial year will have gone past before any decision is reached. However, given the general importance of this matter, which affects not just Doncaster Metropolitan Borough Council but a number of others which have the same type of division between Executive and full council, it seems to me that it is right that all these matters should be considered by this court.

15.

Accordingly I will grant permission.

Order: Application granted

Buck v Doncaster Metropolitan Borough Council

[2013] EWCA Civ 202

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