Nash, R (on the application of) v Capita Plc & Ors

The Claimant is a resident of the London Borough of Barnet. By these proceedings, which were commenced on 10 January 2013, she seeks to challenge the lawfulness of one decision and one “impending decision” by the Council to outsource (Footnote: ¹) to private- sector organisations a high proportion of its functions and services. The decisions in question are:

The functions and services which the Council proposes to outsource are wide-ranging: I give more details below. The proposals have been controversial locally and have also attracted some publicity at national level. Opponents such as the Claimant are concerned that if they are implemented they will lead to a serious deterioration in the Council’s services, partly (though not only) because they believe that private-sector organisations cannot evince the public service ethos which is so important in the delivery of the Council’s service. It is not, however, for the Court to decide whether those fears are justified. The decisions can only be challenged on the basis that the Council has not acted in accordance with its legal obligations. As to that, the Claimant advances three grounds of challenge. Again, I give more details below, but in headline terms they are as follows:

On 21 January 2013 Ms Elisabeth Laing QC, sitting as a deputy High Court Judge, directed an urgent rolled-up hearing, and the matter has come before me on that basis. The Claimant has been represented by Mr Nigel Giffin QC, leading Mr David Gollancz, and the Council has been represented by Ms Monica Carss-Frisk QC, leading Mr Iain Steele. The Interested Parties have not participated. The submissions of both teams of counsel, both oral and in writing, have been of very high quality.

The nature of the evidence before me can be summarised, in broad outline, as follows:

Another resident of Barnet, Ms Susan Sullivan, by her father and litigation friend John Sullivan, was proposing to bring similar proceedings. Those have not been proceeded with in the light of the issue of the present proceedings. However an application was made on behalf of Ms Sullivan to intervene in the present proceedings to the extent of filing evidence, pursuant to CPR 54.17, in the form of witness statements from Mr Sullivan and her solicitor. I granted that application, and the statements in question have formed part of the evidence which I have taken into account. There is an ancillary question arising out of Ms Sullivan’s intended claim to which I will return at the end of this judgment.

In this section I will set out the procedures by which the Council reached the impugned decisions, together with some other related formal steps. I will deal with the other facts, so far as necessary, in the context of the particular issues to which they are relevant.

On 6 May 2008 the Council’s Cabinet resolved:

“that the Chief Executive be authorised to lead a review of the organisational form of the Council and to report back to Cabinet with options for change by December 2008”.

This became known as the “Future Shape” programme.

On 3 December 2008 the Leader presented a report to Cabinet headed “Future Shape of the Council”. The essential message of the report, at least so far as concerns the present proceedings, is sufficiently represented by para. 9.3, which is headed “The Role of the Council in Future”. Para. 9.3.1 reads, so far as material:

“In order [to] maximise the value to citizens of Barnet’s public services, the Council should focus its energy on the activities where it alone can add value. It should therefore enable other organisations to do those things that they can do as well or better than the Council. Fundamentally, the Council should conduct those activities that only the Council can. This implies a number of principles on which to base the future shape of the organisation:

1.

....

2.

The future Council should be strategic rather than operational, focused on convening and working with its partners to prioritise and commission the public services that should be provided in the borough, rather than delivering services itself.

3.- 6. ...”

(The emphases are in the original.) The Cabinet resolved:

“that the proposal for officers to develop a detailed assessment of the overall model for public service commissioning, design and delivery be agreed.”

The process of developing that assessment came to be referred to as “phase II” of Future Shape.

On 21 October 2009 the Leader submitted to Cabinet his formal report on phase II of Future Shape. One of its recommendations was the creation of a “Customer Services Organisation” consolidating all “access functions” of the Council. The report noted that:

“The background paper to this report sets out a high-level options analysis for how we might achieve the development of a customer services organisation. There are three options:

•

Council remains the main delivery vehicle;

•

Co-ownership model (Employees, Customers, Members are the major shareholders);

•

Joint Venture/Outsourcing.

Work on deciding which option to pursue will be undertaken as part of the Future Shape implementation process.”

The Cabinet accepted the recommendation to proceed with that process.

On 29 November 2010 the Cabinet considered a report from the Cabinet Member for Customer Access and Partnerships entitled “One Barnet Framework”. The terms “One Barnet”, “One Barnet Framework” and “One Barnet Programme” are all used in the report and in subsequent documents generated by the Council, and it is not clear whether they are wholly interchangeable; but it is in any event common ground that a number of different projects and programmes came to be referred to under the umbrella label term “One Barnet”. Part at least of One Barnet was, in effect, a relabelling of the Future Shape programme (as indeed the report expressly acknowledges); and the document entitled “One Barnet Framework” which is attached to the report contemplates, among other things, that the Council will be proceeding with “working with partners”; i.e. outsourcing. The Cabinet resolved to approve “the One Barnet Programme Framework”.

At the same meeting there was a report from the Cabinet Member for Housing Planning and Regeneration headed “Development and Regulatory Services Project: Initiation of Procurement”. This recorded that, as part of the Future Shape programme, consideration had been given by “the One Barnet Transact Group” to whether “a cluster of services deemed to fall outside the core competences of the Council” could be provided differently than under “the current model of service provision”; and that various options for such alternative service provision had been appraised. The conclusion of the report was that the Council should:

“... bring together the following functions into an environmental management, regulatory and design function, and seek a partnership with the private sector:

Planning, Housing and Regeneration

•

Building Control and Structures (including Street Naming & numbering)

•

Planning (Development Management)

•

Strategic Planning

•

Regeneration

•

Land Charges

•

Environmental Health (Residential and Commercial sectors)

•

Cemetery & Crematorium.

Corporate Services

•

Registration of Births, Marriages and Deaths

Environment and Operations

•

Trading Standards & Licensing

•

Highways Network Management

•

Highways Traffic & Development

•

Highways Strategy

•

Transport & Regeneration.”

The Cabinet resolved:

“That the Commercial Director be authorised to commence the procurement process to identify a strategic partner for the delivery of the Development and Regulatory Services project.”

This decision constitutes the formal beginning of the process leading to the DRS decision which is under challenge in these proceedings.

The procurement process for a strategic partner fell within the terms of the Public Contracts Regulations 2006 and accordingly required publication of a notice in the Official Journal of the European Union. An OJEU notice for the DRS contract was duly published on 19 March 2011.

On 2 March 2011 the Cabinet Resources Committee considered a report entitled “Customer Services Organisation and New Support Organisation: Options Appraisal”. This attached a document entitled “Options Appraisal for Customer Service Organisation and New Support Organisation”. The Customer Services Organisation (“CSO”), as already referred to (see para. 9 above), was intended “to bring together customer-facing staff from across the Council” into a single organisation. The New Support Organisation (“NSO”) was concerned with the back-office functions of the Council. The appraisal gave scores in relation to both the CSO and each of the backoffice functions which were “in scope” for the NSO, for each of three options for their future organisation, namely “in-house”, “public sector partnership” and “private sector partnership”: the third option was itself divided into three, namely “strategic partnership”, “incremental partnership” and “private sector joint venture”. On the basis of the scores shown on that evaluation the report recommended:

“1.1

That the Director of Commercial Services be authorised to produce a business case for the following:

a.

The procurement of a private sector partner(s) to deliver the following services - Customer Services, Estates, Finance, Human Resources, Information Services, Procurement, Revenues and Benefits.

b-d. ....

1.2

That the details of business case 1.1(a) be referred to and considered by a future meeting of Cabinet Resources Committee.

1.3

That the Director of Commercial Services be authorised to initiate the procurement of a private sector partner(s) to deliver the following services:

•

Customer Services, Estates, Finance, Human Resources, Information Services, Procurement, Revenues and Benefits

1.4

That this procurement process will only proceed into the dialogue phase once the business case identified in 1.1(a) above be approved by Cabinet Resources Committee.”

The recommendation was accepted. This decision constitutes the formal beginning of the process leading to the NSCSO decision which is under challenge in these proceedings.

Again, the procurement of a private-sector partner required the publication of an OJEU notice, which was duly published on 21 June 2011.

On 29 June 2011, as required by recommendation 1.2 as set out at para. 13 above, the Cabinet Resources Committee considered a detailed business case for what was now called the “New Support & Customer Services Project”. The case was set out under cover of a report from the Cabinet Member for Resources and Performance and theCabinet Member for Customer Access and Partnerships. The relevant minute reads as follows:

“New Support and Customer Services Organisation Business

Case

For the reasons set out in the Cabinet Member’s report, andhaving given due regard to the statutory Public Sector EqualityDuty and the outcomes of equality impact assessments referredto within the report, the Committee

RESOLVED -

(1)

That the committee approves the New Support and Customer Services Business Case in order that the council can begin the competitive dialogue process, following the previously approved placing of the OJEU notice.

(2)

That the authority to award contract remains with the Cabinet Resources Committee.

(3)

That the committee give due regard to the statutory equality duties under the Equality Act 2010 and the outcomes of the equality impact assessments referred to in this report.”

The applicable public procurement procedures ran their course. In both cases the Council adopted the competitive dialogue procedure. Although the NSCSO process had started somewhat later it came to fruition sooner. Final tenders were received from two bidders, BT and Capita, and the outcome of the evaluation in accordance with the published criteria was in favour of Capita as the preferred bidder.

On 6 December 2012 the Deputy Leader of the Council presented a report to the Cabinet entitled “New Support & Customer Service Organisation: Recommendation for Preferred and Reserved Bidder and Full Business Case”. The report annexed a Full Business Case and Equalities Impact Assessment. Section 9 of the report summarises the benefits, based on the Full Business Case, of accepting Capita’s final tender and recommends that it be “taken forward to contract signature as the preferred bid”. The Cabinet is reminded that it has the option not to proceed with the procurement process, but the disadvantages of that course are set out. The Cabinet approved the recommendation. The formal resolution reads (so far as material) as follows:

“1 That Cabinet note the outcome of the evaluation stage of the New Support and Customer Service Organisation (NSCSO) Project and accept Capita’s Final Tender as the preferred bid, with reference to the Full Business Case . ,

Equalities Impact Assessments ..., List of Principal Legislation ., and Evaluation Scores ... .

2

That Cabinet approve the appointment of the recommended reserve bidder.

3

That Cabinet delegate contract completion and signature (and ancillary documentation) finalisation and execution to the [Chief Financial Officer] ...

4-5 ....”

By the date of the issue of these proceedings the procurement process in relation to the proposed DRS contract had not been concluded. Following the competitive dialogue stage, there were, as noted above, two shortlisted bidders, Capita Symonds and EC Harris, and a decision was due to be made on 31 January this year.

In summary, if both contracts proceed, the Council will have outsourced:

The Claimant asserts that outsourcing on this scale is extraordinary, involving “the wholesale export of the Council’s core functions”. She also contends that it is in practice irreversible. She cites references in the Council’s own documentation to a “major and unprecedented transformation”. The Council denies that what it is doing is in any way unique and Ms Randall in her witness statement points to the long history of outsourcing of local government services and functions, with the encouragement of successive governments, over the last three decades. I need not enter on this debate save to say that this is on any view outsourcing on a very large scale.

I have identified at para. 2 above the Claimant’s three heads of challenge to the impugned decisions. The Council denies that it has acted unlawfully in any of the ways alleged. But its primary contention is that the claim, or most of it, is in any event grossly out of time. I should consider the time point first, since it goes to whether I should grant permission; but it is not in fact practicable to do so without a rather fuller outline of the nature of the claims, and the Council’s answer, under each of the three heads. I take them in turn.

Consultation

It is the Claimant’s primary case that the proposals to enter into the outsourcing arrangements in question attracted the consultation obligations imposed by section 3(1) of the Local Government Act 1999 (which I set out at para. 61 below). She has a secondary case based on alleged promises of consultation made by the Council. She says that what that duty entailed in the circumstances of the present case was that the Council should conduct a “Gunning-compliant” (Footnote: ³) consultation specifically about these proposals. Mr Giffin contended that the Council should have initiated such consultation prior to, as regards the DRS contract, the Cabinet decision of 29 November 2010, and, as regards the NSCSO contract, the Cabinet Resources Committee decision of 2 March 2011 (or in any event the decision of 29 June 2011) - see paras. 10, 13 and 15 above: I refer to those decisions as “the 2010/2011 decisions”. (I should note, however, that he emphasised, for reasons which will become apparent, that since the 2010/2011 decisions did not in any way irrevocably bind the Council it could still in principle have initiated consultation at any point up to the placing of the contracts - albeit that the later it left it the more difficult it might be to demonstrate that the consultation was genuine.)

The Council, in its case as elucidated in Ms Carss-Frisk’s oral submissions, accepts that it has not at any stage conducted a consultation exercise directed specifically to the outsourcing proposals with which these proceedings are concerned. But it denies that it was under any obligation to do so. It contends that the requirements of section

(2) of the 1999 Act are sufficiently satisfied by the general consultation exercises which it carried out from time to time to ascertain the views of residents and other users of Council services, and particularly those conducted annually in connection with the preparation of the Budget and Medium Term Financial Strategy (“the MTFS”) - in the present case the relevant budgets are those for 2010/11 (agreed on 2 March 2010) and 2011/12 (agreed on 14 February 2011) (Footnote: ⁴).

Public Sector Equality Duty

I need not at this stage rehearse the requirements of section 149 of the 2010 Act: I set out the relevant parts at para 78 below. The various reports referred to at paras. 7-15 above acknowledge the need to conduct an equality impact assessment (“EIA”) in order to ensure (and demonstrate) compliance with the statutory requirements in relation to the outsourcing proposals. As regards the NSCSO, the report to Cabinet on 29 November 2010 indicated that EIAs “will be included in the business cases for each project”. In the event, however, an EIA was only carried out for the NSCSO project at a significantly later stage, namely in connection with the assessment of Capita’s bid, following its success in the evaluation process, and it is first published, as noted above, as an appendix to the report produced for the Cabinet meeting of 6 December 2012. As for the DRS contract, no EIA has apparently yet been carried out: presumably the intention is to do so once a preferred bidder has been chosen, as with the NSCSO contract.

The Claimant’s case on those facts is twofold:

The Council denies that it was useful or in any event necessary to produce an EIA any earlier than it in fact has (or will). It also denies that it was necessary to seek further information. I need not give further details at this stage.

Breach of fiduciary duty

In the NSCSO Options Appraisal (see para. 13 above) the Council avowedly chose between the three options (in-house delivery of the services in question, public-sector partnership and private-sector partnership) by taking a “broad qualitative view on the costs and benefits of each service delivery option”. It said that it had not at that stage performed “a detailed analysis of risk”: it said that that would “be completed through the development of the business cases”. In those circumstances, the Claimant contends, the Council’s decision to proceed with outsourcing, particularly on such a scale, was in truth reckless and in breach of the Council’s “fiduciary duty” - as to which, see most recently the decision of the Court of Appeal in Charles TerenceEstates v Cornwall Council [2013] 1 WLR 466 (and in particular the judgment of Maurice Kay LJ, at paras. 11-17 (pp. 471-4)).

Again, I need not give details of the Council’s rebuttal at this point. It does not accept that any criticism that might be made of the relevant decisions comes even within striking distance of the rare cases in which a breach of fiduciary duty by a local authority has been found.

Having thus outlined the issues, I can turn to consider the question whether the claim is in time.

It is the Council’s case that, although nominally what the Claimant is challenging in these proceedings is the decisions (actual or impending) to award the NSCSO and DRS contracts to particular partners, in substance her challenge is to the earlier decisions to proceed with the procurement process for the outsourcing of the functions and services in question. As I have said, hose decisions were taken, in relation to the DRS contract, in November 2010, and, in relation to the NSCSO contract, in March 2011 (or possibly - but nothing turns on this - in June 2011); and any challenge to them should have been made at that time. CPR 54.5 requires that in proceedings for judicial review the claim form must be filed promptly “and ... in any event not later than 3 months after the grounds to make the claim first arose”. Accordingly, permission to apply for judicial review should be refused.

As a fallback the Council would if necessary rely on limb (b) of section 31 (6) of the Senior Courts Act 1981, which reads as follows:

“Where the High Court considers that there has been undue delay in making an application for judicial review, the court may refuse to grant—

(a)

leave for the making of the application; or

(b)

any relief sought on the application,

if it considers that the granting of the relief sought would be likely to cause substantial hardship to, or substantially prejudice the rights of, any person or would be detrimental to good administration.”

I consider this issue in relation to each of the three grounds of challenge separately.

TIME: THE CLAIM OF FAILURE TO CONSULT

Viewing the question as one of principle, and without reference to authority, I would regard the claim based on failure to consult as out of time. In my view it is clear that if the Council was under the duty relied on by the Claimant it should have consulted prior to the decisions taken in 2010/2011 to proceed with outsourcing and to initiate the procurement procedures accordingly; and if it was in breach of that duty that breach crystallised when those decisions were taken without any consultation having occurred. It seems to me, on an ordinary reading of the words of CPR 54.5, that that was when “the grounds to make the claim first arose”. Mr Giffin says that there was a continuing breach of the duty, in the sense that at any time before it was finally contractually committed the Council could have decided, however belatedly, to institute consultation and could have reconsidered its decision in the light of that consultation. That may be so, but it does not help: time runs from when the grounds first arose.

I accept that, in so far as the decision of 6 December 2012 and the impending decision in relation to the DRS contract might involve distinct questions on which there was an obligation to consult which had not been complied with, the Claimant would be in time to complain of that breach. But it seems clear that they do not involve any such questions: whatever the precise scope of the duty to consult, which I discuss at paras. 61-76 below, it can only be concerned with questions of policy and approach and not with such specific operational matters, important though they may be, as the identity of the outsourcing “partner” or the detailed terms of the contract to be entered into.

That approach also seems plainly right as a matter of fairness and good administration. In the year or more following the 2010/2011 decisions the Council has invested, on the evidence of Mr. Cooper, over £4.5m in developing the NSCSO and DRS projects. It has planned and proceeded on the basis that the functions and services in question would be outsourced from 2013/14. That assumption, which was entirely legitimate on the basis of the decisions taken, was built into the MTFS adopted in 2011 and renewed in 2012. Big savings are anticipated from the outsourcing: Mr Cooper quantifies them for the first year at £12.5m from the NSCSO contract and (a minimum of) £1.5m from the DRS contract. Under both contracts the partners are also committed to making very substantial investments (principally, though not only, in IT provision) of which the Council will get the benefit. If the Claimant is permitted at this stage to challenge the outsourcing decisions, and does so successfully, the least that will happen is that the benefits which are anticipated from entering into the contracts will be deferred during the time taken to conduct a proper consultation, which will inevitably cause significant disruption to the Council’s finances; and if the result were, as I have to assume is a real possibility, that some or indeed all aspects of the outsourcing did not proceed the disruption to the Council in having to re-think its strategy from the start would be enormous, and the sums invested in developing the proposals would be wasted. I was given no evidence about the resources invested by the Interested Parties, but it is plain that these too will have been very substantial. It is in order to avoid precisely this kind of uncertainty and disruption that CPR 54.5 and its predecessor rule were made.

But Mr Giffin submits that that conclusion is not open to me as a matter of authority. He relies on the decision of the House of Lords in R (Burkett) v Hammersmith andFulham London Borough Council [2002] 1 WLR 1593. In that case a local authority resolved in September 1999 to authorise a designated council official to grant outline planning permission for a development, subject to the conclusion of a section 106 agreement and the decision of the Secretary of State whether to call the decision in. On 6 April 2000 the applicant, Mrs Burkett, sought permission to apply for judicial review of that decision on the basis that the developers’ environmental statement was inadequate. Shortly afterwards a section 106 agreement was concluded and the Secretary of State decided not to call the application in; and outline permission was duly granted. Richards J refused permission, on the basis that time ran from the date of the resolution in September 1999 and that the application was accordingly out of time; and his decision was upheld by the Court of Appeal. Both Richards J and the Court of Appeal (see [2001] Env LR 39, at p. 691) quoted with approval an observation by Laws J in R v Secretary of State for Trade and Industry, ex pGreenpeace Ltd [1998] Env LR 415 to the effect that there was:

“a ... principle, whose nature is not dependent upon an appeal to the rules relating to delay . that a judicial review applicant must move against the substantive act or decision which is the real basis of his complaint. If, after that act has been done, he takes no steps but merely waits until something consequential and dependent upon it takes place and then challenges that, he runs the risk of being put out of court for being too late.”

However, the House of Lords allowed Mrs Burkett’s appeal on the basis that even if the challenge to the resolution was out of time she would be in time to challenge the subsequent unconditional grant of planning permission.

The leading speech in Burkett is that of Lord Steyn. His discussion of the issue, at paras. 36-51 (pp. 1606-10), is lengthy, but it can be summarised for present purposes as follows:

Lord Slynn was the only other member of the House who addressed the delay issue. He said, at para. 5 (p. 1596):

“In my opinion, for the reasons given by Lord Steyn, where there is a challenge to the grant itself, time runs from the date of the grant and not from the date of the resolution. It seems to me clear that because someone fails to challenge in time a resolution conditionally authorising the grant of planning permission, that failure does not prevent a challenge to the grant itself if brought in time, i.e. from the date when the planning permission is granted. I realise that this may cause some difficulties in practice, both for local authorities and for developers, but for the grant not to be capable of challenge, because the resolution has not been challenged in time, seems to me wrongly to restrict the right of the citizen to protect his interests. The relevant legislative provisions do not compel such a result nor do principles of administrative law prevent a challenge to the grant even if the grounds relied on are broadly the same as those which if brought in time would have been relied on to challenge the resolution.”

Mr Giffin submitted that the present case was on all fours with Burkett. No doubt the Claimant could have challenged the 2010/2011 decisions, but they were of a preliminary character and did not in themselves create legal rights or obligations. That being so, fresh “grounds for making the claim” arose (or would arise) when the actual decision to authorise the contracts in question was made. It made no difference, any more than it did in Burkett, that the actual ground for challenging the later decision - namely the failure to consult - had existed as the date of the earlier decision.

Mr Giffin also sought support from the decision of the Court of Appeal in R (RiskManagement Partners Ltd) v Brent London Borough Council [2010] PTSR 349. In that case the defendant authority “resolved in principle” on 9 October 2006 to participate in an indemnity mutual insurance scheme (“LAML”) and on 13 November 2006 resolved definitively to do so; it actually joined the LAML on 18 January 2007, but it did not begin to make payments until on, or shortly after 7 March. On 6 June 2007 the Claimant, an insurance company which had tendered for the authority’s insurance business, issued proceedings for judicial review on the basis that theauthority was not lawfully entitled to enter into the LAML. The authority’s contention that the claim was out of time because the claimant could and should have challenged the earlier decisions was rejected at first instance and by the Court of Appeal. Pill LJ, at paras. 145-8 (pp. 392-3), referred to Burkett and said that although the instant case was different “some of the same considerations apply”. The essential point in his reasoning was that only after 7 March 2007 were the authority “committed to taking policies from LAML”. Similarly, Moore-Bick LJ, at para. 253 (p. 421), held that “it was not until early March that the council finally decided to obtain insurance from LAML rather than the market”. Mr Giffin submitted that likewise in the present case there was no actual commitment to the private-sector partners until the impugned decisions were taken (and indeed, strictly, not even then).

Mr Giffin developed those points clearly and cogently, but I do not accept them. I do not believe that Burkett is authority for the proposition that in every situation in which a public-law decision is made at the end of a process which involves one or more previous decisions - what I will refer to as “staged decision-making” - time will run from the date of the latest decision, notwithstanding that a challenge on identical grounds could have been made to an earlier decision in the series. In my judgment it is necessary in such a case to analyse carefully the nature of the latest decision and its relationship to the earlier decision(s). I believe the true position to be as follows. If the earlier decision is no more than a preliminary, or provisional, foreshadowing of the later decision, Burkett does indeed apply so that the later, “final”, decision falls to be treated as a new decision, the grounds for challenging which “first arise” only when it is made. But if the earlier and later decisions are distinct, each addressing what are substantially different stages in a process, then it is necessary to decide which decision is in truth being challenged; if it is the earlier, then the making of the second decision does not set time running afresh. I accept that the distinction may in particular cases be subtle, but it is in my view nonetheless real and important.

This distinction is not explicitly made by either Lord Steyn or Lord Slynn in Burkett. But it did not need to be. The focus of their reasoning is on the particular situation with which the House was dealing, namely one where planning permission has been preceded by a resolution approving the award subject to certain conditions: the essential point made is that since the resolution was indeed only conditional it decided nothing. The House was not considering the case of staged decision-making. Likewise in Risk Management the essential point was that no actual decision had been taken before the beginning of March 2007. It is true that, as Mr Giffin emphasised, Lord Steyn regarded it as important that the conclusion reached by the House should be “capable of applying to the generality of cases” or “across the board”. But it is important to consider the examples which he gives at para. 43 of his speech of cognate situations outside the planning field: they are cases of avowedly provisional decisions, where the decision-maker indicates that he is minded to make a particular decision but invites further representations. I do not think that he meant any more than that cases of conditional resolutions to grant planning permission are to be treated like other cases of provisional or preliminary decision-making in public law.

I find support for the approach suggested above in the decision of Eady J in R (Unison) v NHS Wiltshire Primary Care Trust [2012] EWHC 624 (Admin). In that case a group of primary care trusts embarked on a process with a view to entering into contracts with a body called NHS Shared Business Services Ltd. to provide family health services. The process started in early 2011 and the trusts made “decisions to proceed” at various dates in September. The Claimant trade union alleged that the proposals fell within the terms of the Public Contracts Regulations 2006, the procedures of which had not been followed. A claim for judicial review was filed on 19 December 2011. The trusts contended that the challenge was (in the cases of several of the trusts at least) out of time, since the decisions which were in substance being challenged had been taken before 19 September. The union relied on Burkett and Risk Management, contending that, even if a challenge could have been brought earlier, fresh “grounds” would arise at the moment that the contracts with SBS were actually made, so that a claim for quia timet relief in relation to that act was within time. Eady J addressed the point as follows:

“43.

The references to the Burkett and Risk Management cases were clearly helpful in identifying the principles but they cannot be dispositive in themselves. ... [M]uch may turn on the individual facts of the particular case. To what extent is it right on the evidence before me to regard the decisions as final?

44.

I do not think it appropriate to take too legalistic a view on finality. As I have pointed out already, if the Defendants chose not to go ahead at some point, after signing the "instruction to proceed" documents, there would be financial consequences. Because they could be released from their commitment on payment of the appropriate sum, does that mean that the decisions taken at that stage had only been conditional ? I think not. It seems to me that those binding agreements, en route to the final agreements then contemplated, cannot be equated to conditional agreements. They reflect contractual obligations.

45.

Final decisions had already been taken in September, ... which might in theory have been reversed, but there was no indication that this would happen. The 29 September minute referred to contract discussions on how (not whether) to take matters forward. If an agreement is truly conditional, one can envisage at least two possibilities occurring. There will come, as it were, a fork in the road at some point. Either the condition(s) will be fulfilled or not. There is an inherent degree of uncertainty. Here, the decisions were "final", although there were arrangements to be worked out. There could be a change of heart. One or more of the Defendants could have extracted themselves from the commitment - perhaps on making the appropriate contractual payments. But that seems to me to be qualitatively different from a resolution to go ahead only on the fulfilment of certain conditions.”

The analysis is not expressed in precisely the terms that I have used, but it seems to me to be essentially the same: the earlier decision, i.e. the substantive decision to proceed taken in September, was a decision in its own right (“final” in Eady J’s terminology) and could not be treated as merely a conditional or preliminary foreshadowing of the eventual decision to award the contract. And that was sonotwithstanding the possibility that no contract might in the end eventuate. Eady J evidently - and I would respectfully say rightly - did not regard Burkett as laying down a universal rule that in the case of a staged decision-making process time for a challenge will always start to run afresh when the final decision in the process is made.

Ms Carss-Frisk also referred me to a number of other authorities in the procurement context in which a challenge to a decision made at the end of a process has been held to be out of time on the basis that it was in truth a challenge to a decision made at an earlier stage in the process. They can be summarised as follows:

Three of those cases pre-date Burkett and in the three Legal Services Commission cases it is not referred to. They are only therefore of limited value as direct authority on the present issue. But they do nevertheless give some support to the Council’s case. It would in my view be rather surprising if Burkett had silently over-ruled the well-established line of authority culminating (as at that date) with Jobsin, or if in the more recent cases an important argument for the claimant had simply been overlooked.

Having reached this point, I should say something more about the judgment of Laws J in the Greenpeace case. As noted above, Lord Steyn in Burkett disapproved the application by the Court of Appeal of the observations by Laws J which I have quoted at para. 36. The facts in Greenpeace can be summarised as follows. The applicant had sought judicial review of a decision by the Secretary of State to award licences to a number of oil companies to drill in a large number of “blocks” off the Scottish coast in circumstances which it contended involved a breach of the EU Habitats Directive. The licences were granted on 7 April 1997, and proceedings were issued on 30 June 1997. Laws J held (see p. 437) that the application was out of time because the grounds for making the claim first arose on 21 November 1995, when the government formally announced (by way of an answer to a parliamentary question) that it intended to invite tenders for licences in relation to the blocks in question: he described the announcement as a “specific act by government ... which at once affected third party rights [because] the oil companies could only bid for the tranches then promulgated” (p. 430). He also held (p. 437) that, if that were wrong, grounds in any event arose on 24 December 1996, being the date that the tender process was formally initiated by a notice in the OJEU (p. 422). There are thus plain parallels with the facts of the present case (although no-one here has troubled to make a distinction between the date of the decision to outsource and the date of the OJEU notice). What is more, Laws J referred explicitly to the decisions in Terry Adams and Gooding, being the first two of the procurement cases relied on by Ms Carss-Frisk. If Greenpeace was disapproved in Burkett does that not necessarily undermine my reasoning thus far ?

I do not, however, believe that the treatment of Greenpeace in Burkett is decisive of this question. What Lord Steyn took issue with was the passage quoted at para. 36 above, which the Court of Appeal had adopted and applied. Lord Steyn set that passage out in full at para. 40 of his speech and addressed it in paras. 42 and 47. What he disputed was the proposition that a claimant must challenge the decision “which is the real basis of his complaint”; it was this formulation which he held conduced to uncertainty. But there is no consideration in his speech of the actual facts of the Greenpeace case or of the Terry Adams or Gooding decisions (which do not indeed appear to have been cited). In my judgment what Lord Steyn was disapproving was the proposition as it had been understood and applied by Richards J and the Court of Appeal in the case before the House, viz as applied to a conditional resolution of grant planning permission - and, I certainly accept, to cognate cases involving preliminary or provisional decisions. He was not, as I have already observed, considering a case of staged decision-making of the kind with which we are here concerned.

I was not referred to any substantial academic discussion of the effect of Burkett. I note, however, that Lewis Judicial Remedies & Public Law (4^th ed) says, at para. 9-17, that:

“The claimant should challenge the decision which brings about the legal situation of which complaint is made. There are occasions when a claimant does not challenge that decision but waits until some consequential or ancillary decision is taken and then challenges that later decision on the ground that the earlier decision is unlawful. If the substance of the dispute relates to the lawfulness of that earlier decision and if it is that earlier decision which is, in reality, determinative of the legal position and the later decision does not, in fact, produce any change in the legal position, then the courts may rule that the time-limit runs from that earlier decision.”

The footnote to that passage cites Terry Adams and Gooding and observes that they “still appear to be compatible with the principles laid down by the House of Lords in [Burkett]”. What is said to have been disapproved in Burkett is the proposition derived from Greenpeace that time can start to run “before the decision that is constitutive of legal effects comes into being”. That appears broadly consistent with my analysis.

Applying that approach, in my view the 2010/2011 decisions plainly constituted distinct substantive decisions, namely decisions to outsource the functions and services identified, and for that purpose to commence the formal procurement procedure under the 2006 Regulations by the placing of notices in the OJEU. They were not preliminary, provisional or contingent in the sense discussed in Burkett. They were not simply proposals for consultation or declarations of principle: they involved action, and the expenditure of the Council’s resources in preparing for and engaging in the procurement process. They are thus clearly distinguishable from the conditional resolution in Burkett: they had immediate legal effect. No doubt it was possible that the process might prove abortive for some reason; but, as Eady J held in the Unison case, that did not make the decision any the less “final”. The decisions made in December 2012, or impending in January 2013, are, or would be, different decisions, namely decisions to award a particular contract to a particular contractor. On that basis, it is clear that the Claimant’s challenge is in truth to the earlier decisions, on grounds that existed from the moment that they were made.

In my judgment, therefore, the challenge on the basis of failure to consult is out of time.

Mr Giffin submitted that if I came to that conclusion I should extend time. He made five points:

I should explain the background to the third of those points. Mr Dix, to whose witness statement I refer at para. 4 (4) above, and who was a prominent activist in the borough, asked on several occasions between 2009 and 2011 what consultation the Council proposed to engage in with regard to “Future Shape” and “One Barnet”. I refer to the following statements in particular:

I am not prepared to extend time. On the approach which I have taken, these proceedings were brought eighteen months or more after they should have been. As set out in para. 35 above, during that time the Council has been proceeding on the basis that the decision to outsource the functions and services in question was lawful, and it would be contrary to all principles of good administration for that basis now to be put in doubt. It would also, on the evidence, risk considerable wasted expenditure. There has been nothing covert about the Council’s proceedings. The 2010/2011 decisions were formally taken and recorded. They have been common knowledge to interested persons in the borough and on the evidence have been controversial since they were first proposed.

As to Mr Giffin’s particular points:

TIME: THE PUBLIC SECTOR EQUALITY DUTY CLAIM

As appears at para. 25 above, the Claimant puts her case on breach of the public sector equality duty in two ways. I take them in turn.

As regards her primary case - namely that the Council failed to have regard to the specified matters at the formative stage of its outsourcing policy - that is plainly a challenge to the 2010/2011 decisions and is out of time for the reasons already given. The Claimant does not advance, nor can I see, any reasons peculiar to this ground why time should be extended.

As regards the alternative case, however, Mr Giffin submitted that this challenge was plainly in time, because it is directed at the EIA actually produced in December 2012 - or, more precisely, to the decision taken (in part) in reliance on it. I accept that that is correct, though the challenge can only be to those aspects of the decision of 6 December which are genuinely distinct from what had already been decided.

TIME: BREACH OF FIDUCIARY DUTY

The position here seems to me identical to that in relation to the allegation of failure to consult. The Claimant’s case is that it constituted a breach of duty for the Council to decide to outsource the functions and services in question without undertaking a detailed analysis of risk: see para. 27 above. On the basis of my reasoning above, that ground first arose at the time of the 2010/2011 decisions.

For the reasons given above I believe that the grounds of all of the pleaded claims, with the exception of the alternative claim in relation to the public sector equality duty, first arose more than three months before the issue of proceedings, and I should not extend time in relation to them. I accordingly refuse permission.

Notwithstanding that conclusion, I believe that I should give my conclusions on the substantive questions. I do so partly in case the matter goes further but also because, so far as the issues under section 3 of the 1999 Act are concerned, I am told that there is no case-law, and in view of the thorough and expert submissions made to me it may be of some wider value if I expressed my views. On the other points, however, it seems to me appropriate to express my conclusions much more summarily than if I had not refused permission.

CONSULTATION

Part I of the Act imposes a “best value duty” on a wide range of public authorities, including local authorities such as the Council (see section 1 (1) (a)). Section 3 (as amended by the Local Government and Public Involvement in Health Act 2007) reads as follows:

“ The general duty

(1)

A best value authority must make arrangements to secure continuous improvement in the way in which its functions are exercised, having regard to a combination of economy, efficiency and effectiveness.

(2)

For the purpose of deciding how to fulfil the duty arising under subsection (1) an authority must consult—

(a)

representatives of persons liable to pay any tax, precept or levy to or in respect of the authority,

(b)

representatives of persons liable to pay non-domestic rates in respect of any area within which the authority carries out functions,

(c)

representatives of persons who use or are likely to use services provided by the authority, and

(d)

representatives of persons appearing to the authority to have an interest in any area within which the authority carries out functions.

(3)

For the purposes of subsection (2) “representatives” in relation to a group of persons means persons who appear to the authority to be representative of that group.

(4)

In deciding-

(a)

how to fulfil the duty arising under subsection (1),

(b)

who to consult under subsection (2), or

(c)

the form, content and timing of consultations under that subsection, an authority must have regard to any guidance issued by the Secretary of State.”

In July 2008 (Footnote: ⁵), following the coming into force of the Local Government Public Involvement in Health Act 2007, which amended the 1999 Act, the Secretary of State issued statutory guidance (in accordance with section 3 (4) entitled Creating Strong Safe and Prosperous Communities. Para. 6.4 refers to the best value duty. Paras. 6.5 and 6.6 read:

“6.5

To fulfil the duty of best value, authorities should seek to achieve a balance between potentially, but not necessarily, competing objectives in particular:

•

responding to the needs of all sections of the community including those groups with complex or specialist needs

•

seeking to address the whole-life costs of decisions, focusing on early intervention and achieving sustainable outcomes

•

exploiting economies of scale

•

achieving locally-responsive services.

6.6

Achieving the right balance will require - as set out in section 2 on the duty to involve - appropriate consultation and involvement (ideally led by elected members) with representatives of local people including potentially the local authority’s own workforce, and - where there is an impact upon LAAs - also require consultation with the relevant partner authorities.”

(The reference to a “duty to involve” is to a distinct duty introduced by the 2007 Act, which attracts its own guidance in chapter 2.) Fresh guidance, entitled Best Value Statutory Guidance, was issued in September 2011. The passage relating to consultation reads:

“To achieve the right balance - and before deciding how to fulfil their Best Value Duty - authorities are under a Duty to Consult representatives of a wide range of local persons; this is not optional. Authorities must consult representatives of council tax payers, those who use or are likely to use services provided by the authority, and those appearing to the authority to have an interest in any area within which the authority carries out functions. Authorities should include local voluntary and community organisations and small businesses in such consultation. This should apply at all stages of the commissioning cycle, including when considering the decommissioning of services.”

In neither form does the guidance appear to advance matters much for the purpose of the issue before me.

As noted at para. 23 above, the essential dispute between the parties is whether the duty imposed by section 3 (2) required the Council to consult with representatives of the kind there identified specifically about the proposals which led to the impugned decisions or whether the kind of general consultation exercise conducted in relation to the 2010/2011 and 2011/12 Budget and MTFS sufficed. I should give a little more detail about what that consultation comprised. This is largely drawn from Mr Cooper’s first witness statement (subject to some correction in his third statement) and the documents referred to in it. The account given there was not very clear, and several points of detail remain obscure; but both Mr Giffin and Ms Carss-Frisk helpfully took me through the documents, and I have an adequate overall picture.

The 2010/2011 process. The essential elements can be summarised as follows:

The 2011/2012 process. The essential elements can be summarised as follows:

Although I have, out of deference to the attention given to it in the evidence, and to some extent also at the hearing, summarised the nature of the consultation about the 2010/11 and 2011/12 budgets, there is no real dispute that it did not constitute consultation about outsourcing as such. “Alternative service provision” was mentioned in the materials supplied, at least for the latter year; but no relevant information was supplied, and the exercises were plainly not designed to elicit views about it. The real question is thus whether the Act requires more than that. That requires a careful analysis of the statutory language in its legislative context.

I start with the background to the Act. Part 1 gives effect to proposals entitled Modernising Local Government - Improving Local Services Through Best Value. Those proposals provide for the replacement of the previous compulsory competitive tendering regime with a system which achieves the same benefits but more flexibly. It is clear from the White Paper (see in particular chapters 1 and 2) that, although “best value” is a very general concept, the principal means by which it was envisaged that it would be achieved was through “innovative partnership developments” with organisations in the private and voluntary sectors - in short, by outsourcing. As it is put in para. 2.1:

Against that background I turn to consider the language of sub-sections (1) and (2) of section 3.

I start with sub-section (1), which establishes the substantive best value duty. I would analyse it as follows:

Sub-section (2) imposes a duty to consult “for the purpose of deciding how to fulfil” the duty under sub-section (1). Ms Carss-Frisk attached importance to that formulation. In a helpful note addressed specifically to the construction of section 3, she submitted that a requirement to consult “for the purpose of deciding” what arrangements to make with a view to securing improvements is substantially different from a requirement to consult “about” the arrangements, or the improvements, themselves. The formulation adopted leaves it open to the authority to judge what kind of consultation will assist it in deciding how to fulfil the best value duty: indeed in her note the duty is paraphrased as being “to consult for the purpose of assisting theauthority to decide how to fulfil its duty ... [original emphasis]”. It may judge - and the Council in the present case did judge - that consultation about “specific models by which it could exercise its functions” or “particular service delivery proposals” would not assist it, essentially because of the need to consider particular proposals or particular functions in the context of the whole range of services and the authority’s overall financial position. It would also be impracticable to have to consult about every particular proposed change in the way in which it was performing its functions.

Building on that foundation, Ms Carss-Frisk submitted that an authority could normally choose to satisfy the section 3 (2) duty by conducting a consultation aimed at establishing priorities over the whole range of its activities. In her note she describes the advantages of proceeding in that way as follows:

“If consulted about the authority’s Human Resources function in isolation, residents might say that it is important to them that it remains being carried out by employees of the authority itself. But if consulted about that function in conjunction with others, and against a backdrop where the authority has explained that its financial position is such that savings must be made by one route or another, residents might be considerably more amenable to outsourcing of the Human Resources function, in preference to cutting frontline services elsewhere.”

She continues:

“Where an authority has decided that the appropriate way to consult for the purpose of assisting it in deciding how to fulfil its duty to “make arrangements” is through consultation relating to the full range of its functions, the obvious means of carrying out that consultation is through the process of setting the authority’s Budget, the Corporate Plan and the Medium Term Financial Plan. That is the stage at which the authority must itself make difficult decisions on how best to allocate its limited resources. It is of the essence of this stage that it is directed towards securing improvement in the way which the authority’s functions are exercised. It is therefore the stage at which consultation will best assist the authority in deciding how to make arrangements to secure that improvement.”

That is what, in essence, the Council did the present case: see paras. 64 and 65 above.

Ms Carss-Frisk sought support for that argument from Hansard. In the course of a committee debate on the bill which became the 1999 Act in the House Commons on 28 January 1999 the responsible Minister answered a question about consultation by emphasising that the bill was not prescriptive. She said:

“Authorities have to use common sense. The Bill does not say “you must consult in this way on that aspect. ... We should credit local councils with a bit of common sense. That is why we are making the bill more flexible. Our proposals will not involve a consultation process that is over-prescriptive, over-bureaucratic or, quite honestly, useless.”

She also referred to the section in the White Paper dealing with consultation. Paras 3.10 and 3.11 read as follows:

“3.10

Legislation could prescribe a framework for the form and timing of consultation. Consultation could be achieved, for example, through general publicity, through specific mailing of individuals and businesses, through regular feedback related to specific services, or in respect of the whole impact of the council’s services on particular groups or communities. A combination of such methods, decided locally, might be feasible. The timing of the consultation process would ideally be related to the budget cycle, although this might be difficult to achieve across all services on an annual basis. The process of consultation might, therefore, need to have a longer term focus recognising that it could sometimes be difficult to adjust services instantaneously.Either way the local consultation process will be effective only insofar as it secures and sustains a positive response from local people. This will depend in part on local authorities’ responsiveness, and the skill and transparency with which the issues are presented. But it will also depend on public perception of progress in restoring fiscal responsibility to councils and in involving local people in local decisions.

3.11

A formal requirement to consult in a particular way would not in itself guarantee a responsive and sensitive process, or guarantee a sense of interest and involvement by local people. There is probably no one mechanism that will be appropriate in all circumstances: individual local authorities and people will need to consider what suits their local circumstances best, building on the good practice that authorities have been developing through initiatives such as Local Agenda 21. The Government therefore favours a duty to consult cast only in general terms, leaving the process open to local discretion and the development and dissemination of best practice, including that learnt from the pilot schemes. It will take into account, however, responses to its proposals to involve local communities in shaping local services such as those described in the consultation paper on local democracy and community leadership.”

It may be debatable whether at least the Minister’s observations in committee are admissible as an aid to the construction of section 3; but for reasons which will appear I do not need to form a view about that.

I do not accept Ms Carss-Frisk’s submissions. In the first place I do not think that the use of the formulation “for the purpose of deciding how to fulfil” as opposed to, say, “about how to fulfil” will bear the weight that Ms Carss-Frisk puts on it. Of course it is important to pay close attention to the statutory language, but I do not see how you can consult “for the purpose of’ making a decision without inviting views on the substance of the decision itself. And even if that is theoretically possible, I do not see how it is possible to consult for the purpose of deciding whether to undertake a major outsourcing programme without inviting views on the proposal to undertake that programme. Consultation only about “priorities”, or about other general matters that might “assist” the authority in deciding whether to outsource, is not the same thing and is not what is required. (Footnote: ⁶)

That seems to me not only the natural reading of the statutory language but what I would expect Parliament to have intended. It is hard to see why authorities should be entitled to fulfil their duty to consult in a way which avoided seeking views on the central issues raised by the substantive duty. Ms Carss-Frisk was of course obliged to put her case in the way that she did because it is clear that in the present case the Council did not make any attempt to consult on the specific question of whether the functions and services covered by the NSCSO and DRS contracts should be outsourced. (Indeed if what Mr Dix was told, as quoted at para. 52 (1) above, is to be taken at face value, the Council had taken the view that it would not consult on “the principles of the Future Shape programme”.)

I do not believe that the view which I have taken would put authorities under any unreasonable burden. The statutory language leaves them with a very broad discretion as to how to satisfy the obligations under section 3, as indeed it appears that the Government intended. I would make four particular points:

It follows that if the application for judicial review had been made in time I would have held that the Council had not complied with its obligations under section 3 (2) of the 1999 Act in respect of the decisions taken in 2010/11 to outsource the performance of its functions and services, covered by the proposed NSCSO and DRS contracts. It does not, however, follow that I would necessarily have quashed those decisions or the decision of 6 December 2012. I would have wished to give serious consideration to the Council’s argument that even if the claim was in time on a Burkett basis it would be right nevertheless to withhold relief on the basis that, because substantially the same challenge could have been made to the earlier decisions, there could be said to have been undue delay within the meaning of section 31 (6) (b) of the 1981 Act (see para. 31 above): certainly, a case of detriment to good administration could be made out. Lord Steyn made it clear in Burkett that the House was not concerned with the effect of section 31 (6), though he described it at para. 18 of his speech as conferring “a useful reserve power” (p. 1600B). However, whether that power is available in a case like the present is not a straightforward question, and since I need not go down that route I prefer not to explore it further.

It is unnecessary, having reached this point, to consider the alternative - legitimate expectation - basis on which the Claimant alleged that the Council was obliged to consult in relation to its proposals to outsource.

PUBLIC SECTOR EQUALITY DUTY

For present purposes I need only set out the core provisions of section 149 of the 2010 Act, which are as follows:

“(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 is prohibited by or under this Act;

(b)

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

(c)

foster good relations between persons who share a relevant protected characteristic and persons who do not share it.

(7)

The relevant protected characteristics are -

Age;

Disability;

Gender reassignment;

Pregnancy and maternity;

Race;

Religion or belief;

Sex;

Sexual orientation.”

As already noted, there are two distinct aspects to this part of the claim. I take them in turn.

The Claimant submits first that the Council should have conducted an EIA prior to making the 2010/2011 decisions. As trailed above, I shall address this point only briefly. If I had granted permission I do not believe that I would have found a breach of the public sector equality duty in this respect. Such impact as the outsourcing of the functions and services in question might have on persons with protected characteristics was not liable to affect the basic decision to proceed: detailed consideration would only be required when the details of the outsourcing arrangements were being worked out.

I have held that the claim that the EIA in fact carried out as regards the NSCSO contract was defective is within time and I must accordingly consider it on the merits.

The EIA appears as an appendix to the report submitted to the Cabinet on 6 December 2012. It is some 49 pages long and in fact comprises four distinct assessments - in respect of “customers” of Customer Services, Revenue and Benefit Services and Estates, and in respect of employees - under cover of an introductory section. The overall conclusion is stated in the introduction as follows:

“Having considered these issues in detail, it is the Council’s view that the overall impact on all groups with protected characteristics in the borough in terms of their access to and use of these services, the Council’s ability to tackle discrimination and advance equality of opportunity, is likely to be positive.There is likely to be a neutral impact on good relations between those sharing and those not sharing protected characteristics. However these assessments will be kept under review throughout the mobilisation and contract period.”

It continues, so far as customers are concerned:

“The reasons for the current positive and neutral assessments are as follows:

•

No service reductions are proposed in Capita’s Final Tender. In particular, face to face provision will be retained as is, in terms of location, staff numbers and opening hours.

•

Capita has defined key over-arching design objectives for the NSCSO designed to ensure that Customer needs are met and groups with protected characteristics are protected including:

(a)

Building Service Delivery Differently - Capita will enable multi-channelled delivery and the ability to bundle services in ways that relate to customer need and put that at the heart of service delivery. Capita will consult closely with all stakeholders and employ a co-design process with customer groups that represent the residents of Barnet so services fit into customer’s lives and are easy to use.

(b)

Managing Service Delivery Differently - Capita will transform the way Customers interact with our services (and the Council) by transferring control to them and engaging them in service design. Insight will form the basis of the new service delivery model by investment in understanding the customer, understand need, understanding access to services and the requirements of the more vulnerable.

•

Where there could be negative impacts, in terms of location, service structures and new technology, Capita has committed to a range of measures that will prevent changes from adversely impacting the quality of service provision on any customer, and introducing equalities training for staff and advocacy for vulnerable customers to make a positive contribution to equalities. Capita has also committed to conducting EIAs when any changes to services are being considered, prior to their approval and implementation.

•

Capita has committed to adhering to equalities legislation and the Council’s equalities policy, and producing an annual equalities report.

•

Activities or measures currently undertaken by the services which promote the public sector equalities duty will be retained by Capita.

•

Capita is introducing a number of service improvements that will enable better data about customers to be collected, analysed, and shared so that services can be better designed and targeted to customers needs, and committing to significant improvements to customer service outcomes such as first contact resolution and customer satisfaction.

•

Capita will use the intelligence gathered through codesign and their on-going management of processes and operations to create dynamic and personalised service delivery for all customer groups. This rich understanding of customers drawn from behavioural analysis, and combined with their experience and Barnet specific Insight will enable them to identify and understand patterns of Customer behaviour and specific customer needs and tailor service accordingly.”

I need not set out the equivalent passage as regards employees, since the Claimant’s concern appears to be entirely about service users.

On the face of it the points there summarised (which are developed in more detail in the individual assessments) seem plainly to demonstrate due regard to the matters required by the statute. But the Claimant’s case is that the Council had inadequate information on which to reach the opinions expressed and should have consulted in order properly to inform itself about the potential impact of the changes (cf. R (Hurley) v Secretary of State for Business Innovation and Skills [2012] EWHC 201 (Admin)). What is said is that the Council relied on data from a service user satisfaction survey, but that that survey had only been answered by a small, and very doubtfully representative, number of service users of whom only 16% (some 588) had completed the equalities and diversity section of the survey: what is more, that section had not been asked questions about all the protected characteristics - those omitted being gender reassignment, marital status, pregnancy and maternity, religion or belief and sexual orientation.

The problem with that criticism is that it has no bearing on the actual basis on which, as set out above, the Council concluded that the proposals would have no adverse impact, namely - at the risk of being over-summary - that the Capita contract contained provisions which preserved existing levels of service and, in the event that there might subsequently be changes in modes of delivery, ensured that service users with protected characteristics would not be disadvantaged. Whether that assessment is correct, or in any event reasonable, does not depend on numbers or other information of the kind which the Claimant says is lacking, but on whether the contractual provisions in question are effective, as the Council evidently believes they are. I do not believe that it is arguable that the Council was in breach of duty in this regard.

I asked Mr Giffin in the course of his oral submissions to identify what, if any, are the concrete and specific issues underlying this head of challenge - that is to say, what kinds of person with protected characteristics have what specific concerns about the potential impact of outsourcing. Public sector equality challenges are rather too easily advanced in vacuo. He relied principally on the concern expressed in the evidence that outsourcing will accelerate the trend towards what, in the jargon, is described as “channel-shifting” - that is, in practice, trying to have as many contacts as possible between service suppliers and service users conducted by automatic responses and/or online: while that has obvious advantages both for the supplier and for many service users it may be disadvantageous to people, such as the Claimant, with disabilities and indeed to others with protected characteristics. I can understand this concern, but it is explicitly addressed in the EIA. Among the “relevant or significant changes being proposed by Capita” is “greater use of automated and web self-service channels and social media”. In a column headed “action needed to ensure no negative impact on citizens with protected characteristics” the need is identified to make self-service channels as accessible as possible and to support people who cannot use them. A final column spells out in considerable detail “relevant Capita commitments”. I dare say that the Claimant is sceptical about the reliability of those commitments, but the question for the Court is only whether the Council has paid “due regard” to the issue. In my view it is unarguable that it has. Mr Giffin also mentioned other concerns, such as the impact of relocation of staff, but the same answer applies.

I should record that Mr Giffin did not in the end advance any argument that required me to consider the particular terms of the proposed contract in order to assess for myself the effectiveness of Capita’s various commitments. I am sure that that was a wise decision. The judgment as to whether the provisions of the contract adequately address the interests of groups with a protected characteristic is for the Council, and not the Court, to make; and its assessment could only be challenged if it fell outside the wide discretion which it enjoys.

I accordingly refuse the Claimant permission to challenge the decisions on the basis that they have been (or will be) reached in breach of the public sector equality duty.

BREACH OF FIDUCIARY DUTY

I deal particularly briefly with this ground not only because I believe that the claim is out of time but also because Mr Giffin passed over it very lightly both in his skeleton argument and still more in his oral submissions. This was realistic. Views can no doubt legitimately differ about the degree of financial analysis appropriate before taking a decision to proceed with outsourcing as opposed to the other options which were appraised. Mr Dix, who has some expertise in this field, believes that the analysis undertaken by the Council was quite inadequate. But the evidence does not come close to establishing the kind of reckless disregard of the principles of financial planning or management that is necessary to make good a claim of this kind. I would have refused permission on the merits even if the claim had been within time.

I accordingly refuse permission to apply for judicial review in respect of all the grounds argued.

I should mention one other matter. Mr Sullivan (see para. 5 above) applied through his solicitors to be released from the confidentiality obligation which he had undertaken in relation to the Capita contract which had been disclosed to him. I can see no basis for such an order. Neither the contract itself nor the confidential witness statements purporting to summarise its terms were in the event referred to before me, since Mr Giffin - I am sure after careful consideration - sought to advance no submissions based on the details of its provisions.