Hunt v North Somerset Council

The Defendant is a district council. On 21 February 2012, at a meeting of the Full Council, it resolved as follows:-

“That the following recommendations of the Executive be approved –

(1)

That the Revenue Budget for 2012/13, including special expenses, be approved; and

(2)

That the Council utilise the Council Tax Freeze Grant and freezes the average Band D Council Tax charge in respect of North Somerset Council services for 2012/13 at £1146.40, plus special expenses charges, where such charges apply, giving an overall average charge of £1150.59;

(3)

That the final directorate budget position as set out in the body of the report be noted.”

The Claimant is 21 years old. He suffers from a condition known as ADHD; he also has learning difficulties. Every Wednesday the Claimant attends the Weston Youth Centre which is financed by the Defendant. In the Claim Form issued in these proceedings the Claimant asserts that the Defendant acted unlawfully insofar as it approved the Revenue Budget for 2012/13 “in relation to the provision of Youth Services”. As originally formulated in the Claim Form the Claimant seeks declaratory relief and an order quashing the decision to approve the Revenue Budget. The Claimant still seeks declaratory relief; however, he now claims a quashing order only in relation to an item of the Revenue Budget which relates to the financial provision for youth services, specifically, that part of the Budget given the reference CYPS-26. At the time he brought these proceedings the Claimant was fearful that the Defendant was intent upon closing the Youth Centre which he attends. As it happens the Centre has not been closed. Nonetheless the Claimant presses for the relief to which I have referred.

In support of his claim the Claimant relies upon two grounds. The first ground alleges that the Defendant failed to comply with 507B of the Education Act 1996 and with the statutory guidance issued in relation to that section; the second ground asserts that the Defendant failed to comply with its duty to have regard to the public sector equality duties under section 149 of the Equality Act 2010. The Defendant contests both grounds. Further, for reasons which I shall explain later in this judgment, it asserts that even if one or both grounds are made out this court should refuse relief.

The Full Council of the Defendant consists of sixty-one members (councillors). In order to determine the issues which arise in this case it is necessary for me to consider the thought processes and state of mind of those persons at and before the meeting of the Full Council on 21 February 2012 when the decision to pass the resolution set out above was made. However, the meeting of 21 February was the end point of a debate which had started much earlier. It seems to me to be clear that a proper understanding of what occurred on 21 February must depend upon a proper understanding of all the important steps which preceded that meeting. Accordingly, the next section of this judgment charts the important steps leading to 21 February 2012.

On 13 December 2010 the Secretary of State for Communities and Local Government made a statement to Parliament concerning finance settlements for local Government in the years 2011/12 and 2012/13. The Defendant, like all other local authorities, was faced with significant cuts in its allocation of funds. The cuts in funds included cuts in specific grants which related to the provision of services for children.

The spending cuts announced in Parliament were widely expected. Some months before the announcement senior officers of the Defendant had embarked upon a wide ranging review to identify how the Defendant’s expenditure could be reduced. From an early stage it became clear that there might be a need to consider making substantial financial savings in respect of the provision of youth services. In his first witness statement, dated 2 June 2012, Mr John Wilkinson, an assistant director within the Defendant’s Children and Young Peoples Services Directorate, says that as from late 2010/early 2011 a comprehensive assessment was undertaken of the services provided by the Defendant to young people and the ways in which those services might be provided in the future. Those undertaking the review soon realised that one option which needed careful consideration was that the Defendant would cease to provide many services directly but instead “commission” or “enable” other organisations to provide those services. It would also be necessary to consider with care how such services would be financed irrespective of who was to provide those services.

An initial report was considered by the Defendant’s Senior Leadership Team on 29 March 2011. The Senior Leadership Team consisted of a number of senior officers, including Mr Wilkinson. A number of decisions were made including a decision that a full review of youth service provision was required and that consideration would be given to some services being provided and financed by organisations other than the Defendant.

In June 2011 a further report was prepared in the light of additional assessments which had been undertaken. That report was considered by the Senior Leadership Team on 19 July 2011. The Team concluded that a complete redesign of youth services was warranted. At paragraph 27 of his witness statement Mr Wilkinson says:-

“In deciding which proposals to develop and put forward to elected members for ultimate decision, the Senior Leadership Team had to consider and weigh a range of factors. We recognised the proposed changes to the youth service would have a negative impact, however, we concluded that this impact would be less damaging for children and young people, especially the most vulnerable, than reducing other budgets further. We also concluded that through enabling others to provided positive activities, and retaining some capacity to provide targeted work, the impact of the reductions could be substantially mitigated.”

Mr Wilkinson asserts that throughout the process described thus far the Senior Leadership Team was well aware of its statutory duties under 507B of the 1996 Act and section 149 of the 2010 Act. He says that in order to ensure compliance with section 149 of the 2010 Act equality impact assessments (hereinafter referred to as “EIAs”) formed an integral part of the process. EIAs were produced in January 2011 and updated in the summer of 2011 in advance of the reports considered by the Senior Leadership Team. In 2010 officers of the Defendant had developed a template for the production of EIAs and the template was used when the EIAs were produced in 2011.

During late summer and autumn of 2011, the Defendant undertook what it regarded as a comprehensive consultation exercise about its emerging proposals for youth services and all other aspects of the expenditure cuts which it was contemplating. In August a local newspaper, the Weston, Worle and Somerset Mercury carried an invitation to its readers to provide suggestions to the Leader of the Council, Nigel Ashton, about how the Defendant might make budgetary savings. The invitation appeared in the newspaper itself and on the newspaper’s website.

On 13 September the Executive Committee considered the first draft of a document entitled Medium Term Financial Plan (hereinafter referred to as “MTFP”). It was intended to be a plan for the years 2011/12 – 2014/15. This document contained about 200 suggestions about how the Defendant might reduce its spending. It contained proposals about the provision of services to children and young people. It also contained an appendix - appendix 6 - which was a summary of all the EIAs which had been produced by that time in relation to the whole range of proposed expenditure cuts. The Executive Committee resolved that the draft MTFP should be published for consultation purposes. It was made available on the Defendant’s website so that members of the public could comment if they chose. In his witness statement Mr Wilkinson describes the extent of the consultation (see paragraph 30). It summary he says that there was a full public consultation although he acknowledges that “specific consultation directly with individual young people regarding the budget was admittedly limited”.

The draft plan was the subject of publicity in a magazine entitled “North Somerset Life” which is published by the Defendant. The edition published in October 2011 contained information about the draft MTFP. The magazine informed readers that one of the suggestions for reducing spending was to reduce the amount spent on youth services. Readers were invited to write to Councillor Nigel Ashton with their views upon the proposed spending cuts including the cuts in expenditure on youth services. The magazine was delivered to all the homes within the Defendant’s area.

On 21 September a meeting took place between officers of the Defendant and representatives of the nine youth clubs in North Somerset which had voluntary management committees. In the literature produced by the Defendant this meeting is described as a “briefing event”. Officers of the Defendant made a presentation about the changes which were being mooted for youth services and the implications of the changes.

On 9 November 2011 officers of the Defendant met again with some of the representatives of the management committees of the youth clubs within the Defendant's administrative area. The purpose of the meeting was explained in literature produced by the Defendant’s officers prior to the meeting. It was to confirm the budget position, explain the future role of the Defendant, explain the likely future model for commissioning services, set out a timeline and inform those present about available support and ask them about their needs.

To this point in the process, the involvement of members had been limited. In June 2011 the Scrutiny Panel for Children and Young Peoples’ Services established a member working group to investigate universal provision for young people. The group consisted of six councillors. That group was consulted about the draft MTFP; it accepted the plan albeit “reluctantly” but made various recommendations to mitigate the impact of the proposals contained within the plan. As I have said, the Executive Committee met on 13 September and approved the draft MTFP for consultation purposes.

On 15 November 2011 the Full Council of the Defendant considered a motion that the MTFP be endorsed as a policy document. The motion was carried. In advance of the resolution the Council heard representations specifically related to cuts in the youth service. The gist of the representations is recorded in the minutes of the meeting. There were representations from members of the public; two employees of the Defendant, Helen Thornton of Unison and Rowena Hayward of GMB, also addressed the members. Ms Thornton informed members that “impact assessments should be carefully considered and equality issues addressed”.

Five working days before 15 November 2011 the draft MTFP was sent to every member of the Council. The draft MTFP ran to more than eighty pages. It included a detailed table entitled “Appendix 3(i) - Schedule of Draft Budget Reduction Proposals 2011/12-2014/15.” The table contained approximately two hundred separate proposals for budget reduction. Each proposal was given a specific reference. There were 25 proposals, approximately, for reduced expenditure upon services for children and young persons. Each of those proposals was given a reference with the prefix CPYS. As I have said, (see paragraph 2 above) the proposal with which these proceedings are concerned was given the reference CYPS-26.

The proposal encompassed in CYPS-26 was described in the draft MTFP as follows:-

“Review youth service provision through promoting non-NSC funded positive activities, supporting transfer of responsibility to towns/parish councils and community groups or closing youth centres as a last resort (this will ensure that targeted youth support will continue for the most vulnerable)”

In different columns of the table in which that description appeared the proposed budget reductions were set out; the table showed that in the year 2011/12 there was a proposed budget reduction of £190,000 and that the proposed reductions for the years 2012/13 and 2013/14 were £364,793 and £260,566 respectively.

In November 2011 and prior to the meeting on 15 November the Defendant updated the EIAs which had been produced in June. I should record at this stage that one of the EIAs was concerned solely with the impact of the budget reduction proposals which related to the provision of services to children and young persons. This EIA was entitled “Initial Equalities Impact Assessment. Service Area: Integrated Children’s Services”. (see D/5/431).Part of that EIA was in tabular form. Under the reference CYPS 26 there was an explanation of the proposed changes to youth service provision (identical to that set out in the draft MTFP quoted in the previous paragraph) together with the figures for the budget reduction also set out in the draft MTFP. In an additional column headed “Service User Impact” the impact of the proposal was described as high.

It is common ground that the members of the Defendant were not provided with this EIA in advance of the meeting of 15 November 2011. Rather, the draft MTFP contained appendix 6 which was a summary of all the EIAs which had been produced to this point. The summary consisted of four pages. Members were informed within the summary how they could access all the actual assessments. The summary made specific reference to CYPS-26. The remodelling of youth service provision was described as a high impact area and proposals to mitigate the impact were described as follows:-

“Workshops and consultations with the aim of supporting and enabling the local community to continue to deliver services through a partnership model.

Ongoing targeted youth work to support the most vulnerable young people in the community.”

The minutes of the meeting of 15 November 2011 show that certain members presented alternative budget proposals to those contained within the draft MTFP. Those alternative budget proposals were contained in written documents and circulated either at or shortly before the meeting. It is clear, too, that expenditure cuts in youth services were one of the reasons why alternative budgets had been promoted.

On 1 December 2011 the Scrutiny Panel considered both the MTFP and the alternative budgets. The Panel referred both the MTFP and the alternative budgets for further consideration by the Executive Committee and the Full Council.

In January 2012 the EIAs were updated again. It is necessary to describe the updated version of the EIA concerned with the budget reduction proposals involving services to children and young persons in some detail since this was the last EIA produced before the meeting of 21 February 2012.

The description of the budget reduction proposal CYPS-26 was identical to the description contained in the EIA produced in November (see paragraphs 18 and 19 above for that description). Following the table in which proposal CYPS-26 appeared the document was divided into six sections. Section 1 asked the question “What is the potential impact of the proposals on diverse groups?” Section 1.2 was headed “Youth Service Budget”; it contained the following information and assessment.

“The proposal is to reduce the budget by 75% from the original £1.1 million and North Somerset Council will no longer deliver universal youth services within the community. This will mean the loss of Council provided universal provision across 15 youth centres. The youth service currently provides 72 sessions (182.75 hours) per week to approximately 2000 young people across north Somerset. The last National Youth Agency Audit of Youth Services in England indicated that the number of young people in contact with NSC Youth Service in 2007/8 was 4163. The reduction in the numbers reflects the move to targeted work that has taken place since 2008.

The reduction will exclude young people from accessing early intervention and prevention from services delivered by the Council and dependent on which targeted group work is retained may result in the loss of single gender work, work with girls and young women, work with Gay, Bi-Sexual, Lesbian young people, loss of work with young people with additional needs, and will exclude an impact on any young person seeking out access to a youth worker which would include those young people who are disadvantaged due to race, sexuality, gender and disability.

Young people in rural areas may be disadvantaged due to lack of public transport if local partnerships do not take on this service delivery within their own communities. There may be resulting social isolation and lack of access to information, advice and guidance beyond school and Connexions provision.

Future provision would depend on whether local partnership groups are able to deliver this work although they will receive support from the Council to develop new models of service provision (see section 4 below)”

Section 2 asked the question “What information do you have that demonstrates this impact? Under the heading “Youth” the answer given was:-

“Targeted Youth Support Provision, with a budget of £250k will focus on one on one casework with those young people identified as being part of the 300 most vulnerable families. There is a risk of loss of universal provision within areas of high economic social deprivation where communities may not be able or willing to develop alternative models of delivery. Young people accessing this provision are from disadvantaged backgrounds in Western Youth Centre, Western Town Centre, Banwell Youth Centre, Congresbury Youth Club, Clevedon Youth Provision, Castlebach Youth Club, Worle Youth Provision.”

There followed detailed information about children in need. The EIA considered, in terms, children in need by virtue of “age and gender”, ethnicity” and “disability”.

Section 4 asked the questions “What course of action could we take to mitigate the impact identified in Q1? Is the course of action justifiable?” Under the heading “Youth Service” the answer given was:-

“Workshops and consultation sessions will continue to take place across north Somerset with the aim of supporting and enabling local communities to continue to deliver services via a partnership model, supported by commissioners within the Council.

It is proposed to continue delivering targeted work to support more vulnerable people within our communities via 6.5 Young Peoples Support Worker Posts.”

I should also mention section 3 which considered the question “Have those affected by this budget reduction proposal been consulted?” The relevant parts read:-

“The Senior Leadership Team commissioned a piece of work to develop the approach to actively engaging children, young people, their parents and other service users in the Transformation Programme. A group was brought together including, service users, colleagues from all branches of CYPS, the voluntary sector and the PCT. The group has concluded that it will be very difficult to conduct meaningful consultations about the whole programme and therefore rather recommends that engagement is undertaken at a project level.

Management committees, town and parish councils, local communities (including young people) and representatives from the faith and voluntary sectors have/will have a range of workshops delivered this autumn to gain views and support the development of a new model of youth work delivery.

The results and outcomes following consultation with staff and specific groups will be communicated in due course.”

The section went on to record that the union Unite had made a specific complaint of insufficient consultation with young people. The author of the EIA responded by asserting that:-

“The pace of change has made it very difficult to fully consult. There has been consultation with Parish Councils and further consultation about how the new model will be implemented will take place.

All youth service staff received a copy of the consultation document.”

Section 5 set out “key messages”. They were:

On 17 January 2012 there was a meeting of the Full Council. A question was asked about whether all the youth clubs in North Somerset had applied for grants then available. The members were told that most had applied. The meeting was also addressed by Ms Thornton who expressed Unison’s opposition to the Defendant applying for and accepting a council tax freeze grant.

The Defendant’s Executive Committee met on 7 February 2012. Five working days before the meeting the members of the Executive Committee were sent a comprehensive report prepared by officers. The Committee was asked to approve the Revenue Budget for 2012/13 and refer it to the Full Council for approval.

As well as the report, members of the Executive Committee were also sent the alternative budgets which were to be canvassed before Full Council and a summary of the results of all the EIAs which had been undertaken. This summary was in the form of an update to the appendix 6 which had been part of the MTFP. For ease of reference I refer to this document as appendix 6 henceforth.

Appendix 6 began by stating that:-

“Equality impact assessments (EIAs) are undertaken to demonstrate that Council has paid ‘due regard’ to the need to eliminate discrimination, promote equality and foster good relations in all aspects of its work.

As part of the Councils' ongoing commitment to equality and diversity managers are updating the EIAs to identify any further potential impacts on their proposals included in the medium term financial plan (MTFP) on diverse or more vulnerable groups within our communities. The EIAs will also identify actions that have been or are proposed to be taken to mitigate that impact.”

It went on to specify those who had been consulted. A number of organisations were listed; no young persons or their representatives were consulted as a group.

The next section of appendix 6 informed the reader that copies of all the equality impact assessments could be found at www.n-somerset.gov.uk/equalities or obtained from the Defendant’s Equality and Diversity Manager, Louise Roberts.

Appendix 6 next contained a section headed “Consultation Comments on Potential High Impact Areas”. The text beneath the heading read:-

“The initial EIAs identify a number of areas as having potentially high impact on diverse or vulnerable groups and the table below highlights the main issues in respect of these areas. Full details are set out in the EIA document at www.n-somerset.gov.uk/equalities.”

The “table below” is reproduced.

It is also important to record that appendix 6 had a section entitled “Trade Union Comment”. Under this heading the following appeared:-

“The trade unions have been consulted over the development of the EIAs and are particularly concerned over the proposals which impact on Children’s Integrated Services. Where appropriate the Children’s Integrated Services EIA has been amended to reflect trade union comments.”

As I have said, members of the Executive Committee were sent these documents. It is also to be noted that the documents were sent to every member of the Council as was the invariable practice in relation to documentation provided to members of the Executive Committee.

At its meeting on 7 February 2011 the Executive Committee decided to recommend to the Full Council that it should approve the resolutions which are set out at paragraph 1 above. Before that decision was taken there was a debate. The minutes of the meeting record that Councillor Lake drew attention to appendix 6. The minutes also record that he commented that “the remaining Equality Impact Assessments were available on the Council’s website and suggested that members should look at those in advance of the budget setting Council meeting”. The minutes also record that Councillor Ashton referred to the EIA “in respect of the remodelling of youth service provision” and informed the members of the Committee that an update on changes to youth services would be included in an edition of “Members Only” which would be published in the following week and emailed to all members.

The meeting of 7 February 2012 was attended by members who were not members of the Executive Committee. There were twenty-nine such members present; in total, therefore, thirty-five members of the Defendant Council were present at the Executive Committee meeting.

By letter dated 13 February 2012 each member of the Defendant was summoned to a meeting of the Full Council on 21 February 2012. An agenda was included with the letter. Members were reminded that they had received all the papers which had been supplied to the members of the Executive Committee and they were “commended to review them prior to the Council meeting.”

Each councillor who attended the meeting of 21 February 2012 received a report prepared by officers in advance of the meeting. The report recommended approval of the three resolutions set out on paragraph 1 above.

The report contained a section headed ‘Equality implications’; the letters “N/A” appeared after the heading but it has not been suggested that this in itself has any particular significance in judging the legality of the decision made by the members on 21 February 2012. The report also referred to “background papers”; two of those papers were the draft MTFP published on 13 September 2011 and the MTFP approved on 15 November 2011.

All but five of the sixty-one councillors attended the meeting on 21 February 2012. The minutes show that there was significant discussion about the cuts in expenditure as they related to the youth service. The Defendant’s standing orders were suspended to permit Ms Thornton of Unison and Ms Stanley of Unite to address the meeting. The minutes record Ms Thornton’s address as follows:-

“Ms Thornton addressed Council. She urged the Council to refuse the Council tax freeze grant for 2012/13, and queried the need to have a high level of reserve at a time of large budget reductions. Ms Thornton also commented that the budget reductions would result in the loss of 280 full time equivalent Council posts.

Ms Thornton also expressed concern that the Council had not had proper regard to the equalities impact of the cuts particularly on young people, the disabled and the elderly. She added that time must be allowed for equality impact assessments to take place.”

Ms Thornton has made a witness statement in these proceedings. She takes no issue with the minutes. She says, correctly, that the EIA of January 2012 was not presented to the meeting; rather members were directed to a website to download the document. Ms Thornton says that two members, at least, do not use email – although that does not necessarily preclude those persons from downloading the EIA. In any event, of course, it may be reasonable to infer that that they knew that they could obtain all relevant EIAs from Ms Roberts, the Defendant’s Equality and Diversity Manager.

In her witness statement Ms Thornton says that on 14 February 2012 she had lodged a written submission. By that I take it that she means that she distributed a written document to all members. Certainly Councillor Lake, in his witness statement, says that she circulated a document to all members and presented the document at the meeting. Ms Thornton’s submission contained the following passages which are pertinent in this case:-

“Appendix 6 of the budget papers provides a summary of the Equality Impact Assessments (EIA). But it is our view that this does not contain enough detail for Councillors to make informed judgements about whether their current budget proposals will enable the Council to meet their equality duties, and that Councillors really should have read all Equality Impact Assessments in full before making their decision on the budget.

You will be aware that the new public sector equalities duties mean that public sector equalities duties mean that public sector employees must give “due regard” to the need to:

i)

Eliminate unlawful discrimination embarrassment and victimisation

ii)

Advance equality of opportunity between people who share a protected characteristic from those who do not.”

In the section immediately following Ms Thornton set out the protected characteristics verbatim from section 149(7) (see paragraph 52 below). Ms Thornton's document also dealt, specifically, with CYPS 26. She wrote:-

“The full Equality Impact Assessment makes clear that the cessation of universal provision will have high impacts on girls and young women, LGBT young people, young people with additional needs, young people from BME groups, young people with disabilities and young people living in rural areas. Your mitigating actions involve other organisations providing youth services, but you also note that many young people accessing youth provision are from the most deprived of north Somerset, and may not be able to take these services on, but you say nothing about what you will do if this turns out to be the case….councillors need to ask for an update on which parish councils and other organisations are going to take on which elements of the youth service from 1 April 2012 in order to assess whether cutting youth services would mean you are actively discriminating against particular groups of young people. It is also our view that ‘new look youth services’ will not be sustainable. Your EIA does not make clear who precisely will receive the targeted youth support that will remain, and again what is the equalities impact of this? There has also been no consultation with young people on the removal of their youth services.”

On any view, Ms Thornton's address to members and supporting document constituted a criticism of the Defendant's proposals as they related to the provision of youth services; Ms Thornton was also, clearly, asserting that the EIAs which had been undertaken were not adequate.

At the meeting on 21 February 2012 the Full Council considered whether to approve the recommendations made by the Executive Committee. A debate took place. No less than three amendments were proposed; one of the amendments was as follows:-

“To increase the budget of Children and Young Peoples Services by £350,000. The main purpose of this is to enable continuation of Youth Club provision, whether by direct North Somerset provision or in partnership with parish and town Councils.”

The amendment was defeated as were the other amendments which were proposed. In due course the resolutions set out at paragraph 1 above were approved.

There is no record in the minutes which demonstrates unequivocally that the members considered the matters contained within section 507B of the 1996 Act or section 149 of the 2010 Act during the course of their debate. It is not suggested that this is fatal to the Defendant's contention that it complied with its duties under those statutes. Mr Wolfe QC, on behalf of the Claimant, accepts and submits that this court must adjudicate upon whether or not the Defendant complied with its duties having regard to all the available evidence and the inferences properly to be drawn from that evidence.

Much of the relevant evidence has been summarised above. Additionally, however, Mrs Oldham, on behalf of the Defendant, draws attention to the following strands of evidence which she submits support the Defendant's case that it complied with its duty to have due regard to the public service equality duties under section 149 of the 2010 Act. First, there was in circulation a document entitled “Equality Scheme” published by the Defendant and which had been approved by the Executive Committee on 23 March 2010. The Scheme included chapters on the proper approach to equalities, integration into day-to-day decision-making and promoting equality. Second, the Defendant had a group - the Equality Scheme Implementation Group – which met quarterly. Two of the four meetings involved the Defendant's officers. The other two meetings involved Council members as well as representatives of other organisations. The purpose of the group was (and still is) to monitor progress in relation to equality issues. Third, members of the Defendant's staff at managerial level received training in relation to equality issues. Fourth, in 2010 a template for the production of EIAs specific to the budget setting process was created in line with the guidance contained in a document produced by the Equality and Human Rights Commission entitled “Using the equality duties to make fair financial decisions”. Finally, on 20 July 2011 a meeting took place, attended by approximately sixty managers, which explored the key provisions of the specific duties of the Equality Act 2010 and that which was required to complete robust EIAs. All this, submits Mrs Oldham, demonstrates that the officers and members of the Defendant were likely to be well versed in the public service equality duties under section 149 of the 2010 Act and the need to have due regard to them when making decisions of the type made on 21 February 2012.

Mrs Oldham also relies upon the evidence of Councillor Anthony Lake. He was at the material time and still is the executive member responsible for finance, human resources and asset management and he was and is the elected member who is responsible for equalities issues. Councillor Lake has received training relating to decision-making in compliance with the public sector equality duties.

In his witness statement dated 1 June 2012 Councillor Lake gives a description of the meeting of Full Council on 21 February 2012. The relevant parts of the witness statement are as follows:-

“14.

With respect to the budget setting Council meeting on 21 February 2012 I recall the comments of the trade unions representatives. Ms Thornton the representative for Unison made an address that she had previously circulated to all Councillors, including myself, regarding the budget savings in general which included reference to the reductions in youth services. Ms Thornton presented a paper at the meeting specifically concerning the Equality Impact Assessments. The paper that she presented at the meeting and which she had previously circulated to all Members set out what the requirements of the public sector equality duties are, including reciting the protected characteristics. Ms Thornton’s submission addressed youth services specifically and the cumulative effect of the budget proposals. In relation to Ms Thornton's statement it was clear to me the distinction between the facts that she recited for example the statutory requirements of the Equality Act 2010 and her submissions and opinions on those facts. These representations, whilst not a primary source of equality impact implications for Members to consider, it was nevertheless a reminder to members of our duties. I refer to Ms Thornton's written submission at pages 34 to 41 of exhibit AL1). In addition to Ms Thornton, the representative for the Unite union also addressed the meeting.

15.

I further recall that following the Council’s Leader tabling the motion for the approval of the Revenue budget an amendment was proposed by Councillor Leimdorfer to increase the Children and Young People’s Services budget by £350,000 to enable continuation of Youth Club provision. The amendment was debated and a named vote took place. From the minutes I note that 15 Members supported the amendment and 39 Members, including myself were opposed; the amendment was therefore lost (I produce the minutes at pages 42 to 58 of exhibit AL1).

16.

I voted against the amendment because I considered that the revised service would provide continuing youth services but in a different form with more community involvement and particularly that a more targeted approach would provide support for the most vulnerable young people.

17.

I can confirm that I was aware of the potential impacts of the proposals relating to youth services to diverse groups and users and the wider public generally. My awareness arose from a number of sources including the equality impact assessments which I had read in full and addresses made at Council meetings by members of the public including users and by the trade union representatives.

18.

In my opinion and taking into account the debates that took place at meetings throughout the budget setting process, the Equality Impact Assessments that were published and the impacts that were highlighted, the public participation and all other factors I believe that Members had sufficient information to discharge our Public Sector Equality Duties and to have due regard to impacts on diverse groups when setting the budget.

19.

I understand that it has been alleged that there was no conscious directing of the minds of Members to the Public Sector Equality Duties and I cannot see how this can have been the case. I urged Members to read the full Equality Impact Assessments and the summary reports highlighted the proposals that were potentially high impact, including those relating to youth services. Those Equality Impact Assessments in my view directed Members to the relevant issues. The tabled amendment pertaining to increasing the youth service budget fuelled debate on this issue and the competing demands on the Council’s available resources just prior to the budget setting vote.

20.

The budget this year was incredibly difficult to set. Taking into account the unprecedented financial challenges we were facing I believe that I and my colleagues took into account all the potential impacts of all the necessary cuts across the full range of Council services, and taking account of the public sector equality duties and all other relevant considerations did the best that we could to ensure delivery services to all the residents of North Somerset. I would echo the words of the Council’s Leader in his foreword to the Medium Term Financial Plan (I would refer to the foreword at page 59 of exhibit AL1), we did not wish to be in the position to bring forward a budget making such levels of cuts to services and we acknowledged that the package of cuts across services would have impacts of many residents; we endeavoured to preserve essential services and mitigate impacts wherever possible and this was the case with the youth service budget and all other service budget we had to take into account in this process.”

Mrs Oldham submits that this is powerful evidence which demonstrates that the members had the public service equality duties well in mind when considering the resolutions on 21 February 2010.

Section 507B of the Education Act 1996 provides:-

“(1)

A local authority in England, must, so far as reasonably practicable, secure for qualifying young persons in the authority’s area access to –

(a)

sufficient educational leisure-time activities which are for the improvement of their well-being, and sufficient facilities for such activities; and

(b)

sufficient recreational leisure-time activities which are for the improvement of their well-being, and sufficient facilities for such activities.”

Sub-section 2 defines “qualifying young persons”. Sub-section 3 defines the minimum content of what is meant by “sufficient educational activities” and “sufficient facilities for such activities”. Sub-section 5 illustrates how a local authority can comply with its duty under sub-section 1. In summary, a local authority may make arrangements for others to provide access to facilities and/or activities. Sub-sections 7 and 8 are of some importance. It provides:-

“Before taking any action for the purposes of sub-section (1) (“the proposed action”), a local authority must

a)

Consider whether it is expedient for the proposed action to be taken by another person, and

b)

Where the authority considers that it is so expedient, take all reasonable steps to enter into an agreement or make arrangements with such a person for that purpose.

8)

For the purposes of sub-section 7(A) a local authority must consult such persons as the authority think appropriate as to whether it is expedient for the proposed action to be taken by another person.”

Sub-section (9) is critical to the arguments in this case relating to ground 1. It provides:-

“(9)

In exercising their functions under this section a local authority must –

(a)

take steps to ascertain the views of qualifying young persons in the authority’s area about –

(i)

positive leisure-time activities, and facilities for such activities, in the authority’s area;

(ii)

the need for any additional such activities and facilities;

(iii)

access to such activities and facilities; and

(b)

secure the views of qualifying young persons in the authority’s area are taken into account.”

Finally, sub-section 12 makes it obligatory for a local authority exercising its functions under the section to have regard to any guidance given from time to time by the Secretary of State.

The Secretary of State has issued statutory guidance on section 507B of the 1996 Act. The relevant extracts from the guidance are set out in the skeleton argument presented on behalf of the Claimant. Insofar as it is necessary to refer to extracts from the guidance in this judgment, I will do so when considering whether or not the Claimant has made good his claim that the Defendant failed to have regard to such guidance when exercising a function said to arise under section 507B.

Section 149 Equality Act 2010 is in the following terms:-

“(1)

A public authority must, in the exercise of its functions, have due regard to the need to -

(a)

eliminate discrimination, harassment, victimisation and any other conduct that it is prohibited by or under this Act;

(b)

advance equality of opportunity between persons who share a relevant protective characteristic and persons who do not share it;

(c)

foster good relations between persons who share a relative protective characteristic and persons who do not share it.

…..

(3)

Having due regard to the need to advance equality of opportunity between persons who share a relevant protected characteristic and persons who do not share it involves having due regard, in particular, to the need to –

(a)

remove or minimise disadvantages suffered by persons who share a relevant protected characteristic that are connected to that characteristic;

(b)

take steps to meet the needs of persons who share a relevant protected characteristic that are different from the needs of persons who do not share it;

(c)

encourage persons who share a relevant protective characteristic to participate in public life or in any other activity in which participation by such persons is disproportionately low.

(4)

The steps involved in meeting the needs of disabled persons that are different from the needs of persons who are not disabled include, in particular, steps to take account of disabled persons’ disabilities.

(5)

Having due regard to the need to foster good relations between persons who share a relevant protected characteristic and persons who do not share it involves having due regard, in particular, to the need to –

(a)

tackle prejudice, and

(b)

promote understanding.

(6)

Compliance with the duties in this section may involve treating some persons more favourably than others; but that is not to be taken as permitting conduct that would otherwise be prohibited by or under this Act.

(7)

The relevant protective characteristics are –

Age;

Disabilities;

Gender reassignment;

Pregnancy and maternity;

Race;

Religion or beliefs;

Sex;

Sexual orientation.”

As I have said, the duties specified in this section are commonly referred to, collectively, as the public sector equality duties and a local authority must have due regard to those duties when exercising its functions.

The Defendant is a “billing authority” within Local Government Finance Act 1992. Section 30 of that Act provides as follows:-

“(1)

For each financial year and each category of dwellings in its area, a billing authority shall, in accordance with sub-section (2) below set an amount of Council tax.

(2)

An amount so set shall be calculated by taking the aggregate of –

a)

the amount which, in relation to the year and the categories of dwellings, has been calculated (or last calculated) by the authority in accordance with –

i)

in the case of a billing authority in England, sections 31A, 31B and 34 to 36 below

…. and

b)

any amounts which, in relation to the year and category of dwellings –

i)

in the case of a billing authority in England, have been calculated in accordance with sections 42A, 42B and 45 to 47 below and have been stated (or last stated) in accordance with section 40 below in presets issued to the authority by major precepting authorities…..

…..

(8)

No amount may be set unless the authority has made in relation to the year the calculations required by this Chapter.

(9)

A purported setting of an amount, if done in contravention of sub-section (7) or (8) above, shall be treated as not having occurred.”

Section 31A(1) requires a billing authority in England to make certain calculations. Sub-section 2 provides:-

“(2)

The authority must calculate the aggregate of:-

(a)

the expenditure which the authority estimates it will incur in the year in performing its functions and will charge to a Revenue account, other than a BID Revenue Account, for the year in accordance with proper practices,

(b)

such allowance as the authority estimates will be appropriate for contingencies in relation to amounts to be charged or credited to a Revenue account for the year in accordance with proper practices,

(c)

the financial reserves which the authority estimates it will be appropriate to raise in the year for meeting its estimated future expenditure,

(d)

such financial reserves as are sufficient to meet so much of the amount estimated by the authority to be a Revenue account deficit for any earlier financial year as has not already been provided for,

(e)

any amounts which it estimates will be transferred in the year from i8ts general fund to its collection fund in accordance with section 97(4) of the 1988 Act, and

(f)

any amounts which it estimates will be transferred from its general fund to its collection fund pursuant to a direction under section 98(5) of the 1988 Act and charged to a Revenue account for the year.”

Sub-section 3 provides:-

“(3)

The authority must calculate the aggregate of:-

(a)

the income which it estimates will accrue to it in the year and which it will credit to a Revenue account, other than a BID Revenue Account, for the year in accordance with proper practices,

(b)

any amounts which it estimates will be transferred in the year from its collection fund to its general fund in accordance with section 97(3) of the 1988 Act,

(c)

any amounts which it estimates will be transferred from its collection fund to its general fund pursuant to a direction under section 98(4) of the 1988 Act and will be credited to a Revenue account for the year, and

(d)

the amount of the financial reserves which the authority estimates it will use in order to provide for the items mentioned in sub-section (2)(a), (b), (e) and (f) above.”

Assuming that the aggregate calculated under sub-section (2) exceeds that calculated under sub-section (3) the calculated difference is to be the Council Tax requirement for the year.

Section 66 of the Act provides:-

“(1)

The matters mentioned in sub-section (2) below shall not be questioned except by an application for judicial review.

(2)

The matters are –

a)

…..

b)

….

c)

a calculation made in accordance with any of sections 31A to 37….or any of sections 42A to 51….

cc) …..

cd) …..

d)

the setting under Chapter III of this Part of an amount of Council Tax for a financial year, whether originally or by way of substitute;

e)

.......

(3)

If on an application for judicial review the court decides to grant relief in respect of any of the matters mentioned in sub-section 2(b) to (e) above, it shall quash the ..., calculation, setting or precept (as the case may be).”

In recent years there have been a large number of decisions, particularly at first instance, in which judges have considered whether public authorities have had due regard to equality duties under legislation relating to race, sex and disability discrimination. A number of different judges at first instance have distilled the principles upon which a court should act. The most recent example is R (Williams and Dorrington) v Surrey County Council [2012] EWHC 867 (QB) in which Wilkie J set out the relevant principles both by reference to cases decided under earlier legislation and by reference to section 149A of the 2010 Act. At paragraph 16 and 17 of his judgment Wilkie J said this:-

“16.

These provisions and their predecessors have been the subject of considerable judicial consideration both at first instance and, in a small number of cases, at appellate level. Save for one particular issue, to which I return below, there appears to be little dispute between the parties as to the approach the Court should take in considering the question of “due regard”. They have been brought together conveniently in paragraph 31 of the decision of Mr Justice Blake in the case of R v (Rahman) v Birmingham City Council [2011] EWHC 944 (Admin). I summarise them briefly below:

i)

Due regard requires more than simply giving consideration to the issue and councillors should be aware of the special duties a council owes to the disabled before they take a decision R (Chavda) v LB Harrow EWHC 3064 (Admin).

ii)

“Due regard” is the regard that is appropriate, in all the particular circumstances in which the public authority concerned is carrying out its function as a public authority. The public authority must also pay regard to any countervailing factors. The weigh to be given to the countervailing factors is a matter for the public authority concerned rather than the Court, unless the assessment by the public authority is unreasonable or irrational. (Dyson LJ (as he then was) in R (Baker) v SS Communities and Local Government [2008] LGR 239 and R (Brown) v SS Work and Pensions [2008] EWHC 3158 (Admin).

iii)

No duty is imposed to take certain steps or to achieve certain results. The duty is only to have due regard to the need to take the relevant steps. The Court will only interfere if the local authority has acted out with the scope of any reasonable public authority in the circumstances. The public authority will need to take steps to gather all the relevant information (Brown).

iv)

The law does not impose a statutory duty on public authorities requiring them to carry out a formal disability equality impact assessment (EIA) when carrying out their functions. At the most it imposes a duty on a public authority to consider undertaking an EIA along with other means of gathering information (Brown).

v)

The due regard duty must be fulfilled before and at the time that a particular policy, which will or might affect disabled people, is being considered by the public authority. It involves a conscious approach and state of mind. It must be exercised in substance, with rigour and with an open mind. It is not a question of ticking boxes (Brown).

vi)

The duty imposed on the public authority is non delegable. It remains on the public authority charged with it (Brown).

vii)

The duty is a continuing one (Brown).

viii)

It is good practice for those exercising public functions in public authorities to keep an adequate record, showing they had actually considered their disability equality duties. If records are not kept it may make it more difficult evidentially for a public authority to persuade a Court that it has fulfilled the duty imposed (Brown).

ix)

Some of these principles have been drawn together as follows. There is no statutory duty to carry out a formal EIA. The duty is to have due regard, not to achieve certain results. Due regard does not exclude having regard to countervailing factors but is “the regard that is appropriate in all the circumstances”. The test of whether a decision-maker has had due regard is a test of substance and not of mere form of box ticking. They duty must be performed with rigour and with an open mind and is non delegable. Members are heavily reliant on officers for advice in taking these decisions. That makes it doubly important for officers not simply to tell members what they want to hear but to be rigorous in both enquiring and reporting to them R (Domb and Others) v LB Hammersmith and Fulham [2009] EWCA 941 Civ.

x)

The clear purpose of (Section 149) is to require public bodies to give advance consideration to the issue of (race) discrimination before making any policy decisions that may be effected by such an issue. This is a salutary requirement which must be seen as an integral part of the mechanisms for ensuring the fulfilment and aims of anti discrimination legislation. It is not possible to take the view that non compliance is not a very important matter. Section 149 has a significant role to play R (Elias) v SS for Defence [2006] EWCA Civ 1293.

xi)

Due regard must be an essential preliminary to any important policy decision, not a rearguard action following a concluded decision R (Bapio Action Ltd) v SSHD [2007] EWCA Civ 1139.

xii)

Consideration of the duties must be an integral part of the proposed policy not justification for its adoption R (Kaur and Others) v London Borough of Ealing [2008] EWHC 2062 (Admin).

xiii)

The Section 149 duty must be kept in mind by decision-makers throughout the decision making process. It should be embedded in the process but can have no fixed content bearing in mind the range of potential factors and situations. What observance of that duty requires of decision-makers is fact sensitive and varies considerably from situation to situation and from time to time and from stage to stage R (Bailey) v LB Brent [2011] EWCA Civ 1586 para 83.

xiv)

The importance of complying with Section 149 is not to be understated, nevertheless, in a case where the council was fully appraised of its duty and had the benefit of a most careful report and EIA an air of unreality may descend. Councils cannot be expected to speculate, or to investigate, or to explore, such matters ad infinitum, nor can they be expected to apply, indeed they are to be discourage from applying, the degree of forensic analysis for the purpose of an EIA and of consideration of their duties under Section 149 which a QC might deploy in Court. The outcome of such cases is ultimately of course fact specific (Bailey para 102 Davis LJ)

17.

An extremely helpful and concise summary of many of the above statements on the appropriate approach for the Courts in considering whether or not there has been due regard to Section 149 is to be found in R (on the application of JM and others) v Isle of Wight Council [2011] EWHC 2911 (Admin), Mrs Justice Lang at paragraphs 95-108).”

I propose to apply the principles elucidated by Wilkie J and Lang J in reaching my conclusion in this case.

In my judgment, Wilkie J was also correct when he concluded that it was for the court to determine whether the Defendant had complied with its duty to have due regard to the matters specified in section 149A of the Act (see paragraphs 18 to 25 of his judgment in Williams and Dorrington). By that I mean that it is for the court to make a judgment about whether the Defendant did or did not comply with its duty. This issue is not to be judged by reference to “Wednesbury unreasonableness”; rather the court reaches a conclusion upon the whole of the evidence placed before it.

During the course of her submissions Mrs Oldham relied upon the very recent decision of the Court of Appeal in R (Greenwich Law Centre) v Greenwich LBS [2012] EWCA Civ 496. In that case the Claimant challenged a decision of the local authority which was to the effect that the Claimant would not be awarded a contract by the Defendant to provide legal services within specialist legal areas to persons in need of such services but who could not afford legal assistance. The contracts were awarded to a “rival” law centre. The Claimant's challenge before Cranston J failed and its appeal to the Court of Appeal also failed.

During the course of his judgment in the Court of Appeal (with which the other members of the court agreed) Elias LJ pointed out that the decision taken by the local authority i.e. to award contracts for the provision of legal services to different organisations from those which had provided such services hitherto did not constitute any significant change of policy on the part of the local authority. Rather, it was a shift in the way in which the objectives of the policy were achieved which was designed to ensure greater savings for the good of the beneficiaries of the service. A change from one provider to another without more would not usually engage equality considerations. In reaching this conclusion, Elias LJ specifically approved the decision of Ouseley J in R(Barrett) v London Borough of Lambeth [2012] EWCA Admin para 92 which was to the same effect.

Obviously, I am bound by the decision of the Court of Appeal in the Greenwich Law Centre case and I would be most reluctant to depart from the decision of Ouseley J in the Barratt case. It seems to me, however, that the instant case is markedly different. In the Greenwich and Barratt cases there was no suggestion that the change in provider would cause any detriment to any of the potential users of the services in question. There was no basis for concluding that there was an impact, even potentially, upon the protected categories specified within section 149 the 2010 Act. In the instant case the Defendant's own documentation acknowledges frankly that there is a high impact, potentially, upon users of youth services as a consequence of a reduction in the budget as it relates to youth services (CYPS-26) and an impact, at least potentially, upon some of the protected categories under section 149 of the 2010 Act is also identified in the EIAs produced by the Defendant. In my judgment, there is no sound legal basis for the submission made by Mrs Oldham that there was no reason for the Defendant to consider the public service equality duties at all when deciding whether or not to approve the Revenue Budget for 2012/13.