Morris & Anor, R (on the application of) v Rhondda Cynon TAF County Borough Council

LORD JUSTICE TOMLINSON: This is a renewed application for permission to appeal against a decision of Patterson J in the Administrative Court pursuant to which, whilst she granted permission for the case to proceed to a substantive hearing, she nonetheless dismissed the judicial review, which was directed to a decision of the cabinet of a local authority in the Rhondda in South Wales.

By that decision on 12th February 2015, the Council (as I will call it) decided that the funding of nursery education in its district would change. For many years the Council had provided full-time nursery education free of charge, but as a result of the financial constraints under which this Council, in common with many others, found itself, it carried out a comprehensive review of its services and determined that as from September 2015 full-time nursery education for children from the age of three free of charge would cease to be available. That obviously is a decision which was capable of having far-reaching and important effects so far as concerns the parents of children of that age, who would need to make alternative arrangements in respect of child care in order that they could either work or pursue training with a view to ultimate employment.

So it was that the matter was regarded as both important and urgent, as a result of which a two-day hearing took place on 20th and 21st April 2015 in the course of which the applicant's challenges to the lawfulness of the decision were very fully ventilated.

The challenge which is sought to be pursued has really resolved itself to three points, which Mr Giffin QC, as one would expect, has explained to us with great clarity this morning.

The first point said to arise is an important point of statutory interpretation arising out of the provisions in section 22 of the Childcare Act 2006, which imposes a duty upon a Welsh local authority to:

Mr Giffin has explained to us that whilst the provisions which apply to English local authorities are not in quite the same form, nonetheless the position is substantially similar in England. It is said that the local authority here failed to discharge the duty that was cast upon it.

Secondly, it is said that an important point arises in relation to the precise ambit of the decision of the Supreme Court in the case of Moseley v Haringey London Borough Council [2014] 1 WLR 3947, where their Lordships dealt with the extent of the duty of consultation which is cast upon local authorities or similar bodies when they are minded to make a decision of this sort.

The third ground of challenge which has survived to this point is a suggestion that, when it came to the question of free transport to and from school, the local authority issued some material which was misleading in that it presented the loss of transport as following inevitably from a reduction to part-time nursery education, which was the proposal, whereas that was not an inevitable consequence of a decision that whereas full-time education had hitherto been available, from henceforth it would be available only for part of the school day, whether the morning or the afternoon.

Dealing briefly with those three points, which I should mention did not appeal to Bean LJ when he considered this application on the papers, so far as concerns section 22, I note that the applicants characterise section 22 as imposing a duty of result, whereas the respondents characterise it as a target duty. I have no doubt that the proper characterisation probably lies somewhere in the middle between those perhaps extreme characterisations, but on any view the duty which is imposed by section 22 is very open textured in its nature, qualified as it is by the requirement only of reasonable practicability.

The respondents, in their short response to this application, suggest that the applicant's approach will involve the imposition of a straitjacket upon the Council's freedom of action. Thus the respondents point out at paragraph 6 of a document prepared by their counsel, Mr James Goudie QC and Mr Julian Milford, that the Council could not know in February 2015 what the exact demand for child care would be in September 2015; it could not know in advance how many working parents might need to pay for extra child care as a result of the decision; it could not know how many might have difficulties in making payment in that way; it could not know how many might have to give serious consideration to giving up work in consequence of their inability to meet the cost of additional child care. As is pointed out, those were imponderables, affected by matters which were necessarily unknown at the time of the decision. Giving one specific example, the Council points out that it could not know how many schools might decide, when they came to set their budgets in May 2015, to continue to provide full-time nursery education for three year olds notwithstanding any funding cut, utilising their existing resources.

So far as concerns that last point, the Council has been to a very considerable extent vindicated in its approach because, in its consultation and decision-making process, the Council estimated that somewhere between 40 to 60 per cent of schools might continue to provide full-time education for this cohort notwithstanding the withdrawal of specific funding. That assessment was criticised by the applicants as being over-optimistic and unsound, but has been, as I have indicated, vindicated because it turns out to have been a conservative estimate in that 65 per cent of schools in the Council's area will, as we are told, continue to provide full-time education for three year olds from September 2015. That one example demonstrates to my mind that it is most unlikely that the duty cast upon a local authority pursuant to section 22 can be couched in quite such clear or concise terms as is suggested by the applicants in their formulation of the duty.

The judge dealt with this point at some length, in particular at paragraphs 123 to 125 of her judgment, and, as I have indicated, it is plain that these matters were gone into in very considerable detail during the two-day hearing before the judge. It seems to me that there is no realistic prospect that this court will take a different view from that of the judge as to the sufficiency of the Council's approach to the duty which I have described under section 22, which, as I have indicated, is not a duty cast in terms of absolute requirements, but a duty which to a very considerable extent requires the Council to indulge in a certain amount of crystal ball gazing in a manner which, as I have indicated, has here proved to be to a very considerable extent vindicated.

The next point is the failure to consult on alternatives, and in particular an interesting debate as to whether or not, when Lord Wilson in the Moseley case gave his approval to the formulation of the duty to consult which had been given by Underhill J (as he then was) in the case under appeal, who had given it as his view that "consulting about a proposal does inevitably involve inviting and considering views about possible alternatives" is properly reconcilable with what Lord Wilson had said two paragraphs earlier in his judgment at paragraphs 27 and 28, where he appears, on the face of it, to indicate that it is only in certain circumstances that fair consultation will require that interested persons be consulted not only upon the preferred option, but also upon arguable yet discarded alternative options. I note also that Lord Reed, in his judgment at paragraph 40, appears to indicate that a duty to consult does not invariably result in the provision of information about options which have been rejected.

Whatever may be the outcome of that debate, it does not, in my judgment, arise in this case. The judge in the course of her careful judgment made findings at paragraphs 72 to 76 about the extent of the consultation upon alternatives. It is right to say that the judge may have been misled or been confused as to the exact chronology when she took into account consultation on the draft budget, which was a separate consultation exercise, which took place, as I understand it, subsequent or substantially subsequent to the consultation upon the specific nursery education provisions. But nonetheless the judge made other findings as to the nature of the consultation exercise at both paragraphs 72 and 74 and she formed the view that the only realistic alternative was put to the public and that there was a proper opportunity for the public to make a meaningful response. Again, as it seems to me that amounts to the judge's evaluation of the precise nature of this consultation exercise. That is an evaluation the outcome of which this court is most unlikely to regard as flawed in any way, and in my judgment no question of principle here arises as to the proper ambit of the consultation exercise having regard to the judge's findings.

The last point I hope Mr Giffin will forgive me for characterising as something of a make weight. The point is made that the consultation was to an extent misleading insofar as it characterised the withdrawal of free transport as an inevitable consequence of a switch from full-time to part-time nursery education. Plainly it was not an inevitable consequence because the Council could have decided to make available free transport in the middle of the school day in addition to the transport which is already available at the beginning and the end of the school day. The Council did in fact recognise when it came to the moment of decision that they were in error in that regard and they considered in a proper manner whether or not it was appropriate to adhere to the indication that free transport would not be available, just as they gave separate consideration to the question of free school meals, which it had been indicated would inevitably be removed in these circumstances but which the Council decided on reflection not to implement.

Mr Giffin came close to accepting that if this point stood alone, it is unlikely that the application for permission to appeal would be pursued, and it seems to me that this very tiny point, important though it is no doubt, is not something which, in the overall scheme of things, is sufficient to justify reconsideration of the entire decision making process of the Council.

For all those reasons, therefore, whilst I recognise, as did Bean LJ, that this is a matter of importance, it seems to me that the prospect of this court reaching a conclusion different from that reached by Patterson J is remote, and for those reasons I decline to grant permission to appeal.

LORD JUSTICE FLOYD: I agree.