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

Having decided to consult where there is no statutory requirement to do so, it is well established that an authority must carry out the consultation fairly. That means that, as was said in R v North and East Devon Health Authority ex p Coughlan [2001] QB 213 at [108]:

“It is common ground that, whether or not consultation of interested parties and the public is a legal requirement, if it is embarked upon it must be carried out properly. To be proper, consultation must be undertaken at a time when proposals are still at a formative stage; it must include sufficient reasons for particular proposals to allow those consulted to give intelligent consideration and an intelligent response; adequate time must be given for this purpose; and the product of consultation must be conscientiously taken into account when the ultimate decision is taken (R v Brent LBC ex parte Gunning [1986] 84 LGR 168).”

The obligation on the consulting authority is:

“112.

… to let those who have a potential interest in the subject matter know in clear terms what the proposal is and exactly why it is under positive consideration, telling them enough (which may be a good deal) to enable them to make an intelligent response. The obligation, although it may be quite onerous, goes no further than this.”

The test for whether a consultation is fair has been revisited on several occasions. Sullivan J (as he then was) in R (Greenpeace) v Secretary of State for Trade and Industry [2007] EWHC 311 (Admin) defined it when he said:

“63.

In reality, a conclusion that a consultation exercise was unlawful on the ground of unfairness will be based upon a finding by the court, not merely that something went wrong, but that something went "clearly and radically" wrong.”

He revisited that in R (JL & AT Beard) v The Environment Agency [2011] EWHC 939 (Admin) when he agreed with Ouseley J as to the test to be applied. He said at [51]:

“The test is whether the process was so unfair as to be unlawful. In Greenpeace, I was not seeking to put forward a different test, but merely indicating that in reality a conclusion that a consultation process has been so unfair as to be unlawful is likely to be based on a factual finding that something has gone clearly and radically wrong.”

The seminal case on consultation is now Moseley (supra). Given the debate between the parties it is important to set out certain parts of that judgment. Although that was a case about statutory consultation it visited the requirements for a fair consultation. Lord Wilson said:

“23.

… But irrespective of how the duty to consult has been generated, that same common law duty of procedural fairness will inform the manner in which the consultation should be conducted.

24.

Fairness is a protean concept, not susceptible of much generalised enlargement. But its requirements in this context must be linked to the purposes of consultation. In R (Osborn) v Parole Board [2013] UKSC 61, [2013] 3 WLR 1020, this court addressed the common law duty of procedural fairness in the determination of a person's legal rights. Nevertheless the first two of the purposes of procedural fairness in that somewhat different context, identified by Lord Reed in paras 67 and 68 of his judgment, equally underlie the requirement that a consultation should be fair. First, the requirement ‘is liable to result in better decisions, by ensuring that the decision-maker receives all relevant information and that it is properly tested’ (para 67). Second, it avoids ‘the sense of injustice which the person who is the subject of the decision will otherwise feel’ (para 68). Such are two valuable practical consequences of fair consultation. But underlying it is also a third purpose, reflective of the democratic principle at the heart of our society. This third purpose is particularly relevant in a case like the present, in which the question was not ‘Yes or no, should we close this particular care home, this particular school etc?’ It was ‘Required, as we are, to make a taxation-related scheme for application to all the inhabitants of our Borough, should we make one in the terms which we here propose?’”

He continued:

“26.

Two further general points emerge from the authorities. First, the degree of specificity with which, in fairness, the public authority should conduct its consultation exercise may be influenced by the identity of those whom it is consulting. Thus, for example, local authorities who were consulted about the government's proposed designation of Stevenage as a ‘new town’ (Fletcher v Minister of Town and Country Planning [1947] 2 All ER 496 at p 501) would be likely to be able to respond satisfactorily to a presentation of less specificity than would members of the public, particularly perhaps the economically disadvantaged. Second, in the words of Simon Brown LJ in the Baker case, at p 91, ‘the demands of fairness are likely to be somewhat higher when an authority contemplates depriving someone of an existing benefit or advantage than when the claimant is a bare applicant for a future benefit’.

27.

Sometimes, particularly when statute does not limit the subject of the requisite consultation to the preferred option, fairness will require that interested persons be consulted not only upon the preferred option but also upon arguable yet discarded alternative options. For example, in R (Medway Council and others) v Secretary of State for Transport [2002] EWHC 2516 (Admin), [2003] JPL 583 , the court held that, in consulting about an increase in airport capacity in South East England, the government had acted unlawfully in consulting upon possible development only at Heathrow, Stansted and the Thames estuary and not also at Gatwick; and see also R (Montpeliers and Trevors Association) v Westminster City Council [2005] EWHC 16 (Admin), [2006] LGR 304, at para 29.

28.

But, even when the subject of the requisite consultation is limited to the preferred option, fairness may nevertheless require passing reference to be made to arguable yet discarded alternative options. …”

Lord Reed was generally in agreement with Lord Wilson but preferred to express his analysis in a way which emphasised the statutory context and purpose of the particular duty of consultation. He said:

“37.

… In the present context, the local authority is discharging an important function in relation to local government finance, which affects its residents generally. The statutory obligation is, ‘before making a scheme’, to consult any major precepting authority, to publish a draft scheme, and, critically, to ‘consult such other persons as it considers are likely to have an interest in the operation of the scheme’. …”

He continued:

“38.

Such wide-ranging consultation, in respect of the exercise of a local authority's exercise of a general power in relation to finance, is far removed in context and scope from the situations in which the common law has recognised a duty of procedural fairness. The purpose of public consultation in that context is in my opinion not to ensure procedural fairness in the treatment of persons whose legally protected interests may be adversely affected, as the common law seeks to do. The purpose of this particular statutory duty to consult must, in my opinion, be to ensure public participation in the local authority's decision-making process.

39.

In order for the consultation to achieve that objective, it must fulfil certain minimum requirements. Meaningful public participation in this particular decision-making process, in a context with which the general public cannot be expected to be familiar, requires that the consultees should be provided not only with information about the draft scheme, but also with an outline of the realistic alternatives, and an indication of the main reasons for the authority's adoption of the draft scheme. That follows, in this context, from the general obligation to let consultees know ‘what the proposal is and exactly why it is under positive consideration, telling them enough (which may be a good deal) to enable them to make an intelligent response’: R v North and East Devon Health Authority, Ex p Coughlan [2001] QB 213, para 112, per Lord Woolf MR.

40.

That is not to say that a duty to consult invariably requires the provision of information about options which have been rejected. …In the present case, on the other hand, it is difficult to see how ordinary members of the public could express an intelligent view on the proposed scheme, so as to participate in a meaningful way in the decision-making process, unless they had an idea of how the loss of income by the local authority might otherwise be replaced or absorbed.

41.

Nor does a requirement to provide information about other options mean that there must be a detailed discussion of the alternatives or of the reasons for their rejection. The consultation required in the present context is in respect of the draft scheme, not the rejected alternatives; and it is important, not least in the context of a public consultation exercise, that the consultation documents should be clear and understandable, and therefore should not be unduly complex or lengthy. Nevertheless, enough must be said about realistic alternatives, and the reasons for the local authority's preferred choice, to enable the consultees to make an intelligent response in respect of the scheme on which their views are sought.”

Baroness Hale and Lord Clarke opined that there was very little between Lord Wilson and Lord Reed and agreed with both judgments.

The claimants note that 87.1% of respondents disagreed with the proposed changes to the funding of nursery education. 83 people contended that cuts should be made elsewhere in services.

The claimants make two substantive submissions. First, that the test for a consultation is always whether the consultation is fair. The fact that not everything has been done does not mean that the consultation is flawed. There is no freestanding test of whether the consultation is radically wrong: see Baird (supra). The issue of unfairness is for the Court to determine.

Second, the focus of a consultation can be on an authority’s preferred option. It is not the claimants’ case that a lawful consultation has to address all possible alternatives or that the alternatives have to be addressed in some great detail. However, the claimants submit that Moseley establishes a general proposition that it is necessary to invite views on possible alternatives so as to enable an intelligent response. The issue then is what is the real subject matter of the consultation? Here it is either a stay at home approach to nursery education, the preservation of the status quo or the implementation of some part-time intermediate position.

What needs to be said by the consulting authority may be influenced by who the consultees are. In R (United Company Rusal PLC) v London Metal Exchange [2014] EWCA Civ 1271 the consultation was addressed to a limited number of highly specialist consultees who were steeped in the subject matter. They were able, therefore, to respond meaningfully without a consideration of the alternatives in the consultation document.

That is very different to the instant consultation which is more akin to the situation in Moseley. To elicit a proper response from the public in the instant context would require reference to some alternatives.

On the claimants’ analysis of cases on consultation post Moseley there were three notable cases. The cases of R (Robson) v Salford City Council [2015] EWCA Civ 6 and R (L & P) v Warwickshire County Council [2015] EWHC 203 (Admin) were on analysis not about alternative options. The final case was R (T) v Trafford Metropolitan Borough Council [2015] EWHC 369 (Admin) which was about whether the defendant was under a common law duty to consult on rejected options. The case was dealing with cuts to adult social care services. Alternatives suggested were increasing council tax and using money from the defendant’s reserves. Stewart J said at [38]:

“It cannot be the case that if an authority does not consult on rejected options, and only presents a preferred option for consultation, then that must be misleading. It is one thing positively to mislead as in Moseley. It is quite another for the Council, in all the circumstances of the case, to have and to put forward, after careful and detailed consideration, a point of view that circumstances dictated that it was not realistic to increase council tax or to use reserves and therefore to focus the consultation on savings in services.”

The other points on consultation are relied upon by the claimants as freestanding points. The most important is the withdrawal of free transport for children receiving nursery education. The absence of any consultation on the withdrawal of free transport, it is submitted, meant that the consultation material presented to the public was as a fait accompli. The fact that there may be rational reasons for not providing free transport did not mean that it was not necessary for consultees to be asked about it. The equality impact assessment indicated that at January 2015 some 25 pre-nursery and some 285 nursery children were receiving free home to school transport.

Second, it was contended that beyond the bare estimate of savings to be made with implementation of the proposal there was no information about how that figure had been calculated. Information on that was particularly important as the figure had changed from what the defendant said it would save in 2014. Consultees were unable to comment on underlying assumptions made by the defendant.

Third, the consultation leaflet said that the defendant needed to find £31 million in 2015/16 to bridge the funding gap. Yet the initial report had stated that the gap to bridge had been reduced to £23million. By December 2014 that had been reduced further to £21.3 million. But neither the leaflet nor the further information were updated leaving consultees under the impression that the defendant still needed to find £10 million more in savings that was actually the case. The impression given to consultees was misleading.

Fourth, the leaflet said nothing about any measures that the defendant was proposing to take to comply with its child care duty so that consultees had no opportunity to comment on suggestions that ultimately featured in the report upon which the decision was based.

The CSA suggested, according to the leaflet, that there was sufficient provision to met childcare needs. The fact that the audit was subject to an annual refresh meant that additional work would be carried out in the consultation period. That was positively misleading in circumstances where not many people would search out the CSA and would take what the leaflet said at face value. The key points were, first, that the CSA had been prepared when children of three had their nursery education full time and hence their childcare needs met in a school setting. It was not concerned with a situation where there was reduced provision for nursery education. Second, even when nursery education was provided to three year olds the responses to the CSA showed real issues on affordability. 70% of respondents had said that childcare was too expensive. The reference to the CSA was not therefore fair, balanced or accurate.

The defendant submits that there was plenty of consultation in the entire process. The defendant authority is facing a challenging financial situation. It has a legal obligation to balance its budget. It has, therefore, a responsibility to look for cuts across its services to enable it to do so. Separate consultation has been carried out on Phase One and Phase Two service cuts. Even with those the defendant is still short of where it needs to be financially. Other cuts to services are, therefore, in addition to, and not in substitution for, those which are proposed to the nursery service. Cuts have been made across a range of services; council tax has been increased, charges for trade waste have been increased, the Council’s financial reserves are to be used. There is no magic wand that can solve the defendant’s financial difficulty.

One of the problems with the claimants’ approach is that it would involve a very large consultation across the board. That has already taken place on the draft budget.

The defendant has had regard to special importance of nursery education as reflected in its decision to consult. All knew what was being consulted upon and why it was being done. Conscientious consideration has been given to the consultation responses as evidenced in the decision to reinstate free school meals after the consultation exercise.

On Moseley there was nothing in the current consultation like Lord Reed’s concerns at [42]. Alternatives had been considered on how nursery education could be cut. Any other savings that could be found in other areas were in addition to those delivered through the changed nursery education policy. In reality, the claimants’ complaint was about another consultation i.e. it was a submission that there should have been a consultation on other cuts: that had already taken place on the draft budget. The situation was similar to L and P v Warwickshire (supra) at [11] and [12].

Fair consultation is highly context specific. A Local Authority’s choice as to where to make necessary cuts to balance its books is a political one where Courts should be cautious before intervening.

The consultation exercise involved no clear unfairness as is required to hold a consultation exercise unfair: see R (Royal Brompton and Harefield NHS Foundation Trust) v Joint Committee of Primary Care Trust [2012] EWCA Civ 472 at [10] and [13] and R (United Company Rusal PLC) v The London Metal Exchange [2015] 1 WLR 1375 at [27] to [29].

The consultation which took place was extended specifically to address alternative options, including maintaining the status quo on nursery education. Further, the claimants contended that other ways of making savings in the region of £2 million should have been considered. The defendant submits that it is not just £2 million which is of concern when there is an initial budgetary gap of £31.2 million to consider.

The fact that the consultation involved consideration of a preferred option was quite proper: see Royal Brompton at [10]. Once it was accepted that the status quo was a suitable alternative that was the end of the case. In fact, many options were considered. As part of a duty of fairness if other services were cut that would need consultation also. That had already happened as part of the consultation on the draft budget.

As to the wording of the consultation materials the Council was fully entitled to state in summary terms why an option was not recommended which is what the materials did.

As to the possibility of raising council tax, in addition to the scale of the budgetary deficit there were at least three difficulties:

As to the other criticisms made of the consultation, first, it was not necessary for the consultation to provide detailed information about financial modelling about how expected savings had been calculated in order for consultees to understand the proposal or to make sensible comments upon it. The consultation was about whether the Council should fund education for three year olds on a full or part time basis.

Consultees were given information as to what saving the Council expected to make if nursery education funding was altered. Over a full year the savings would be £2.166 million and in the year 2015/16 £1.330 million. Alternative savings figures were set out for each of the alternative options.

Second, the claimants were wrong to assert that the Council left consultees with a mistaken impression about overall savings that needed to be made. Both the October report and the consultation correctly stated that the actual budget gap for 2015/16 was £31.2 million. By the time of the October report the actual budget gap have notionally reduced to just over £23 million. As a result of further planned service cuts by December the budget gap was notionally in the region of £21.4 million.

Third, the consultation asked the right questions and specifically addressed the question of childcare in its online survey in targeted questions for parents and carers.

Fourth, there was nothing misleading in the consultation booklet.

On transport the implications were made clear in the consultation. There was a consequential loss of free transport which was an incidental aspect of the whole package. It did not require a separate consultation exercise.

In my judgment the case of Moseley, as has been said, generally states the previous principles on consultation. That means that once a consultation has been embarked upon for it to be fair it has to:

As R (Royal Brompton and Harefield NHS Foundation Trust) v Joint Committee of Primary Care Trust [2012] EWCA Civ 472 makes clear at [10]:

“Another aspect of fairness is that it must present the available information fairly. In this case, because the JCPCT had to collect information from the centres to present the available information it would have to make clear to the centres what information it needed. A further aspect of fairness lies in the presentation of the information on which the views of consultees should be sought. The options for change must be fairly presented. Nonetheless, a decision-maker may properly decide to present his preferred options in the consultation document, provided it is clear what the other options are: Nichol v Gateshead Metropolitan Borough Council (1988) 87 LGR 435. ”

As part of presenting information in a clear way, the decision maker may present his preferred option. Part of the available information to be presented to the public may be alternative options for change. What is an alternative option will depend on the factual and context specific circumstances of the consultation in question.

The case of Robson (supra) concerned a consultation exercise by Salford City Council to close its passenger transport unit which provided a transport service for disabled adults between their homes and adult day centres and to make alternative transport arrangements. The closure formed part of a package of cost cutting measures and was budgeted to save £600,000 a year. The consultation exercise was criticised on the basis that the information contained in the consultation booklet was materially misleading, that it presented an incomplete picture by concentrating on the users of the passenger transport unit service to see if alternative transport options could be used. The Court of Appeal found that what was important was the type of transport arrangements made in the case of service users. To do that regard had to be had for the wider picture. When that was done there had been no significant misleading of the consultees which was the case in Moseley.

The case of L & P (supra) confirms the political nature of budgetary considerations and how a Court has to be cautious about trespassing over the line which is the boundary of a democratically made decision. The case before Mostyn J involved cuts to be made to the integrated disability service which would be implemented when its “local offer” to set out social care services was approved. Mostyn J found that the case did not come remotely close to conspicuous unfairness amounting to an abuse of power. It was a case where the budget was regularly and constitutionally set by a Local Authority in the present climate of austerity. All democratic procedures and safeguards were followed. That ground of challenge failed on the basis of delay but, had he considered the merits, Mostyn J said that he would have found firmly against the consultation exercise being unfair.

The case of T (supra) was a challenge to budget cuts made to Trafford’s adult social care budget which, it was contended, directly affected the claimant who had a diagnosis of autism and learning disabilities, was extremely vulnerable and would be at risk should any of his support be reduced. The issue was whether the defendant was under a common law duty to include information about realistic alternative options in its consultation on the proposed cuts to adult social care. Stewart J emphasised at [32(iv)] and [32(v)] in commenting on the decision in Moseley:

“(iv)

(paragraph 27) ‘Sometimes, particularly when statute does not limit the subject of the requisite consultation to the preferred option, fairness will require that interested persons be consulted not only upon the preferred option but also upon arguable yet discarded alternative options.’

(v)

(Paragraph 28) ‘But, even when the subject of the requisite consultation is limited to the preferred option, fairness may nevertheless require passing reference to be made to arguable yet discarded alternative options.’ He then refers in support of this to two authorities, one of which is the Royal Brompton case.”

In the circumstances of the case before him Stewart J concluded that fairness did not require consultation on arguable but discounted alternative options. Where there was an intention to have public participation in the decision making process and its context was one with which the public may not be familiar fairness can sometimes require that a consulting body consult upon possible alternative ways in which a specific objective might be capable of being met but that was not a general principle. The defendant had considered carefully increasing council tax and using Council reserves and there was information available to some extent as to why that was rejected. There was a real doubt in the case before Stewart J that an indication of alternatives, what they might be and why they had been discarded would have made any real difference. The Local Authority was entitled to consult on its preferred option and the best way to achieve that but was not under any duty to do more.

After the decision in Moseley it is clear that the issue of fairness in a consultation exercise is very context specific. The three cases that the claimant refers to illustrate that point. The case of T is the most similar to that before me but given that all judgments have turned on their factual context I cannot derive any universal principle or principles of application that assist here. That being the case I turn to the application of the law to the facts in the specific consultation exercise carried out.

It is evident from the financial information before the Court that, together with many other Local Authorities, the defendant was in a difficult and challenging financial situation. There was a need to balance a substantial gap in its funding even after the implementation of Phase Two service change proposals.

As part of its overall approach the defendant carried out annual consultation on its draft budget and on its proposals in relation to changes to council tax. It carried out consultation also on service changes. The consultation on Phase One proposals included a proposed change to nursery education funding. That proposal was adopted in modified form and was the subject of the first judicial review.

It was against that background that the situation in relation to nursery education was considered in October 2014. In the consultation booklet the financial situation of the Council was clearly set out so that stakeholders in the consultation can have been under no illusion as to the difficult financial situation which the Council faced.

The consultation was extended until 30 January 2015 with extra material provided to be read in conjunction with the initial consultation materials. In the extract from the supplementary material, options one and two, which were in essence the status quo together with the reasons for their rejection, were set out with it being made clear that the options would result in no savings or in minimal savings respectively. The presence of those options, in my judgment, provided consultees with alternatives to the preferred option. There is no error in consulting on the preferred option provided it is clear to consultees how that has been derived which, from the materials that I have set out above, it was. There is no suggestion that the defendant did anything other than keep an open mind during the consultation as is evidenced from its decision after consultation to re-instate free school meals.

The issue of alternatives here needs to be considered against other steps that the defendant had taken to be able to come to a view as to the scope of realistic alternatives. The defendant had consulted on the draft budget which meant that all financial options were out for public consultation as part of that exercise. Council tax increase was part of that draft budget strategy. So too, was the use of moneys from the Medium Term Financial and Service Transformation Reserve, as also was an increase in trade waste charges. They were all suggested as possible alternatives by the claimants. To hold that the defendant should have consulted on those options again as part of the proposed change to nursery funding would be both onerous for the defendant but also unrealistic. It would also have been confusing to consultees as it would have diverted the focus of the consultation from nursery education funding. Further, as the defendant submitted, those matters had been agreed after consultation and there was still a budget gap that had to be met: they were not realistic alternatives.

Consultation had taken place also on service changes. Changes to funding of nursery education had been approved as part of the Phase One changes. Although the decision on that option had been found to be flawed the real question remained of how that change was to be achieved. One option was that it would not be. Whether it could be was to be determined after consultation. In other words, here, what was required was consultation on the draft scheme. That involved the do nothing option which was put to consultees as part of the extended consultation process. That was the only realistic alternative that, in my judgment, was required to be put to the public at that time. If the decision on the part of the defendant was not to proceed then other ways of implementing financial savings could be considered as part of the next draft budget or service change exercise. They did not need to be included as part of the nursery funding consultation exercise.

In short, there is no inviolable rule established by Moseley that alternatives must be consulted upon in every consultation exercise. Sometimes fairness may require it to be the case so that consultees can make sense of the consultation exercise. When that is the case the alternatives will have to be realistic alternatives. What is realistic will always depend upon the particular circumstances of the consultation to be carried out.

It follows that on the first part of the claimants’ challenge on consultation that I find against them.

As to the specific points within the consultation that the claimants criticise, Mr Giffin QC, on the part of the claimants, with the exception of free transport and matters set out in [43] and [45] above, did not make them part of oral argument but relied upon his skeleton argument.

On free transport the fact of its proposed removal was made clear in the consultation documents. It was a consequential part of the proposed removal of funding for nursery education. It was costed separately but within the overall savings that were anticipated to flow from the changed nursery arrangements. The fact of the proposal, what it entailed and its cost were clearly before the public. It was easy to understand. A similar process applied to the issue of free school meals. I can see no basis for it to be said that the proposed withdrawal of free school transport required a separate consultation exercise. That would have been more confusing than including it within the nursery funding proposals. Consultees were able to respond just on the transportation proposals if that is what they wished to do. The defendant was quite able to take that element out of the proposals as it did with school meals if persuaded that was the right decision.

The absence of financial modelling data was criticised by the claimants. It was contended that without the financial modelling information underlying the headline figures that were disclosed it was impossible for consultees to respond in an informed way. I reject that submission. Such information would be too complex for inclusion in a consultation exercise that sought responses from the public. Financial modelling is complex and would introduce a degree of unnecessary sophistication in a consultation exercise of the sort undertaken.

Increases in council tax, use of the council reserves and increases in trade waste charges I have dealt with above; they were considered within the draft budget.

The changing position about the extent of the deficit and the funding gap that the defendant had to fill were criticised as being misleading. There were changes to the figures, as one would expect, as various measures were implemented but the basic position which was one of a substantial gap in the public finances remained constant. I can see nothing misleading in the figures published by the defendant. Rather, they were figures that reflected the up to date position at the time of the relevant publication.

The claimants contend that the consultation leaflet said nothing about the measures that the defendant proposed to take to comply with its duty to secure, as far as reasonably practicable, sufficient childcare for its area. Worse still the defendant relied upon the CSA which suggested that there was sufficient provision to meet childcare demands which was misleading as it was produced when 99.5% of children aged three had their nursery education met in a school setting but even then the CSA showed that many families were unable to afford the child care that was on offer.

Part of the purpose of the consultation was to find out what childcare needs might arise and how they might be met so as to assess how the childcare sufficiency duty might be met. The consultation asked specific questions in its online survey such as, “if nursery education for 3 year olds is funded part time what impact (if any) will this have on your ability to work, undertake training or education?” The answers to the questions were then inputted into the analysis of the childcare sufficiency duty in the Report of February 2015 which Cabinet considered prior to reaching its decision.

The CSA was relied upon as suggesting that there was sufficient provision to meet childcare demands but it was refreshed annually to ensure childcare provision remained adequate and additional review work was anticipated to be carried out during the consultation period. As a result, it cannot be said that the CSA had made any determination on the childcare sufficiency duty under the proposed changes. Rather, read fairly the CSA incorporating its annual refresh kept the provision under a rolling review. That was a fair approach prior to implementation of an actual proposal.

The issue of sufficiency of childcare was dealt with in the CSA where 99 providers said that they could meet demand for places in the three to four age group and three said that they could not. Again, that would be something kept under annual review and the fact that families might choose to use informal childcare arrangements was a different issue to reporting the findings of the survey in the CSA. As a result I can find nothing misleading on that part of the consultation.

I conclude that the consultation exercise carried out by the defendant was fair in all of the circumstances. It dealt adequately with the issue of realistic alternatives. It follows that this ground fails.

Section 22(1) of the Childcare Act 2006 provides:

“(1)

A Welsh local authority must secure, so far as is reasonably practicable, that the provision of childcare (whether or not by them) is sufficient to meet the requirements of parents in their area who require childcare in order to enable them—

(a)

to take up, or remain in, work, or

(b)

to undertake education or training which could reasonably be expected to assist them to obtain work.”

Section 22(2) further provides that:

“(2)

In determining for the purposes of subsection (1) whether the provision of childcare is sufficient to meet those requirements, a local authority—

(a)

must have regard to the needs of parents in their area for—

(i)

the provision of childcare in respect of which the child care element of working tax credit is payable,

(ii)

the provision of childcare which is suitable for disabled children, and

(iii)

the provision of childcare involving the use of the Welsh language, and

(b)

may have regard to any childcare which they expect to be available outside their area.”

The Welsh Government has published guidance on the Childcare Act 2006 under WAGC 013/2008. That provides:

“2.14

Local Authorities are required to secure childcare of sufficient duration and reliability to enable parents to make a real choice about work. Local Authorities are required to act to secure sufficient childcare that is registered by the Care and Social Services Inspectorate Wales (CSSIW).

…

2.17

The effect of the wording “reasonably practicable” within the Childcare Act is to allow the Local Authorities to take into account their resources and capabilities in making decisions about when to intervene to address gaps in the childcare market. Local Authorities will have to meet needs as far as they are able to within those constraints, but it allows for some flexibility - what might be practicable will depend on the particular circumstances of a Local Authority.”

Under section 26 there is a power to require a Local Authority to assess childcare provision. The aim is to generate an overall picture of parents’ use of and demand for childcare in the Local Authority area. The purpose of a Local Authority’s assessment of childcare provision is to cover both the demand and supply sides of the market locally. In that way a Local Authority and its partners are able to identify gaps in childcare provision where parents’ needs are not being met. Amongst the factors to be taken into account in analysing the gap between demand and supply is that of affordability of childcare. Paragraph 2.42 of the guidance says:

“2.42

To fulfil the sufficiency duty in Section 22 of the Childcare Act, Local Authorities will be expected to do what they can within their powers and resources to ensure that sufficient childcare is available to meet the needs of working parents, now and in the future. As part of this, Local Authorities will need to identify groups of parents who are finding it most difficult to access appropriate childcare at the current market price and who may face the greatest difficulties in future, and to consider what additional assistance can be given to them. This should include maximising take-up of the free entitlement, understanding where more affordable childcare is available, and offering subsidies where that is appropriate and reasonably practicable. Local Authorities also have an important role in publicising the financial support available through the childcare element of the Working Tax Credit and, where appropriate, providing advice and guidance to eligible families on how to access it.”

Affordability is dealt with from paragraph 2.76, where it is said to be difficult to define universally. Paragraph 2.77 reads:

“2.77

Childcare services have been made more affordable for more families because of additional supply-side and demand-side funding. Supply-side spending has increased the numbers of places available and attempted to reduce the structural costs of childcare. However, despite investment in developing the capacity and infrastructure of the childcare market, fees to parents have increased rapidly and remain high in some sectors. So, while supply has increased, demand has grown faster, and “operating costs” are high and still rising.”

The claimants submit that although childcare is not the same as nursery education the extent to which nursery education is provided will have an obvious impact on what childcare is needed by families. Since an Authority’s duty is to “secure”, so far as is reasonably practicable, that the provision of childcare is sufficient to meet the requirements of parents in their area who require childcare in order to enable them (a) to take up or remain in work; or (b) to undertake education or training which could reasonably be expected to assist them to obtain work, an Authority which reduces nursery education will, at the very least, need to consider how that additional need is to be met and may well have to take measures to that end.

The interrelationship between nursery provision and childcare was recognised in R (Littlefair) v Darlington Borough Council [2013] EWHC 2744 (Admin) where the Court considered the equivalent duty for English Local Authorities under section 6 of the Childcare Act. The challenge was to a decision by the relevant Local Authority to close a particular nursery. The Court held at [40] that:

“Put in blunt terms the cabinet had to ask themselves: if we close the nursery, are we able to comply with our statutory duty to ensure adequate childcare for those covered by the Act? Plainly, if that issue had not been addressed when it made its decision, the Cabinet … would have been susceptible to a strong challenge.”

The claimants submit the same question arises here. The Council had to direct itself correctly as to the nature of its duty and it had to take reasonable steps to arm itself with the relevant information. On 12 February 2015 the Council resolved:

“To note that in officers’ opinion the Council would be acting in compliance with its relevant statutory duties (as outlined in the report together with the appendices) should Cabinet proceed with implementation of the proposal as set out in paragraph 4 of the report.

1.2.

That implementation of the proposal would ensure the provision of a nursery education for children from the term after their third birthday is sufficient for the children from Rhondda Cynon Taf.”

The claimants submit that the first difficulty the defendant faces is that the Cabinet did not reach a conclusion as to whether the decision would comply with the Council’s duties under section 22. It resolved only to note officers’ opinion that the Council would be acting in compliance with its duties if the decision were to be adopted.

Even if it were to be inferred that the Cabinet adopted the officers’ opinion as its own the report was flawed in its reasoning.

In the initial report in October 2014 the statutory duties imposed on the Council were set out but did not include any assessment of whether those duties would be complied with in the event that nursery education was cut to part time only. Rather, it said that officers would need to investigate the matters further and an assessment would be carried out.

In the February 2015 report the conclusions on the Council’s duty to secure “sufficient” childcare for working parents were set out at paragraph 8.62 and 8.63:

“8.62.

Against the above background, it is clear the Proposal would change the market for childcare across the Council’s area by raising the demand for childcare places both because of reduced school hours for some children, and because the Council has increased the number of hours of funded childcare from 10 hours to 15 hours for those children that cannot secure a childcare place at a suitable local school. At this point, officers’ best assessment is that the Council would nevertheless be able to meet its duty under section 22 of the 2006 Act, if the Proposal were to proceed, based on the following matters:

i.

As stated in paragraphs 8.55-8.57 a very high proportion of providers are interested in providing wrap-around care. A large majority of the childcare providers consulted indicated they were either planning on providing wraparound care provision or would do so subject to interest/demand. From the sample of childcare providers contacted 94.4% of respondents stated that they were interested in exploring wraparound care provision. 72.2% of these said they were planning to offer or would probably offer wraparound care provision.

ii.

Schools also appear to be working with parents to address the demand for wraparound care (paragraph 8.48), and the numbers of schools either willing to provide wraparound care themselves, or to offer it through a local childcare provider as referred to in paragraph 8.50 highlights this. The survey has demonstrated that schools have consulted with parents as regards to whether there would be a demand for wraparound care provision in light of possible changes to provision of nursery education and that some schools would offer such a facility onsite if possible.

iii.

At least a substantial minority of schools (and potentially, a majority of schools) are likely to continue to provide full time education for 3-year-olds, even if it is not funded by the Council. The best estimate at this stage about how many schools are likely to continue to provide full-time education (as highlighted in paragraphs 7.32-7.35 above), is between 40% and 60% based on (i) the decision schools took following the January 2014 Decision and (ii) the results of the Council’s headteacher’s survey.

iv.

EYFSS is able to identify and target those areas where there appears to be no obvious provider at present who is offering or may be interested in offering wrap-around provision. In these areas, further work will be undertaken by EYFSS to find suitable providers/solutions to address the childcare needs of those areas and/or individual schools. This may include advertising opportunities for providers to establish new provision via an ‘Expression of Interest’ application process or by offering support and advice to existing providers in neighbouring areas.

v.

It is acknowledged that the Proposal will alter the number of parents who need to find childcare. However, the relatively low proportion of respondents to the Council’s CSA that presently consider childcare is a barrier to them accessing employment (approximately one quarter of respondents to the CSA had children of nursery age) offers some reassurance that the Council is starting from a relatively good position in seeking to secure sufficient childcare for its area.

8.63.

It would of course be necessary for officers to keep the position stated above under review, and to report back to Cabinet should their views on childcare sufficiency change in light of further information. Officers also recognise that there is an issue with the affordability of childcare for some parents. Officers would ensure that the EYFSS addressed problems with affordability, as far as practicable. The Council has also addressed issues of affordability, so far as reasonable, by increasing the numbers of funded childcare hours from 10 to 15 for those children who cannot secure a childcare place at a suitable local school. It is not considered practicable to provide further funding for childcare provision without undermining the costs savings sought to be made by the Proposal.”

The claimants submit that the report is in error because it does not deal with people who were previously catered for through the provision of free nursery provision and now would not be. As a result, the report misses out a necessary step.

The CSA makes it clear that there is already a systemic problem with the affordability of childcare. The proposed change will make that issue worse. The defendant’s own report recognises affordability as a key element. Childcare which is not affordable is not sufficient for the area.

The defendant has still not engaged with its duty under section 22 because it remains unwilling to examine the real choices which have to be made. Until the defendant demonstrates that there is no practicable alternative to cutting nursery education there is an error of law. Merely pointing families to benefit entitlement services is no solution.

Apart from the issue of affordability the Council did not have sufficient information to enable it to come to a decision on the childcare sufficiency issue. It did not know:

There was no knowledge on the part of the defendant as to how many schools, if any, would offer “wrap-around” care, nor any knowledge as to how many registered childcare providers would offer “wrap-around” care. Consultation with them was limited: 22 childminders out of 107. At no time did the defendant ask parents whether the average hourly cost for “wrap-around” care was affordable. As a result the Cabinet reached its conclusion on the basis of hope and optimism rather than any analysis.

The defendant submits that it is doing more than other Local Authorities in terms of nursery provision. It is an Education Authority which can, in principle, reduce its discretionary educational provision provided it addresses any childcare implications.

The defendant submits that there is no need to follow the structured approach suggested by the claimants which is to ask whether there are sufficient places, whether those places are affordable and, if not, what is reasonably practicable. Although that approach can be followed there is no obligation to do so.

In Friends of the Earth v Secretary of State for Business Enterprise and Regulatory Reform [2009] EWCA Civ 810 Maurice Kay LJ said:

“What Calgin [2006] 1 All ER 112, Sacupima (2001) 33 HLR 1 and the earlier Court of Appeal authority of S (above, paragraph 25) all demonstrate is the relevance of current resources when considering reasonable practicability, whilst acknowledging that there is a minimum standard below which the authority must not drop.”

On 23 June 2014 the Council considered a report of the Group Director Children and Community Services on the CSA 2014 to 2017. The executive summary included the following:

“Proposed changes to the nursery education provision in RCT has led to a growth in demand for session and wrap-around care and the authority is urgently funding a childcare and schools board officer for a year to ensure all schools are supported to meet the childcare needs of families. Officers from the Early Years and Family Support Services departments (EYFSS) are working with the Education Department, headteachers and third sector organisations in order to meet the increase in the demand for childcare created by the potential reduction in nursery hours. This is likely to lead to an increase during the year ahead in the number of sessional childcare places available in RCT. …Providers who responded to the request for information identified an increase in the number of vacancies again this year. Parents continue to use family/friends to meet their childcare needs. The increase in childcare costs and an increase in the number of all day care provisions that are being established when there is clearly no identified need for new provision in most areas contributes to the challenges. We are also aware that there is an overconcentration of day nurseries in some areas causing an oversupply of places and a subsequent financial risk to new and existing childcare providers.”

Under priority 2 of the Childcare Development Delivery Plan April 2014 to March 2015 the priority was defined to ensure that there was sufficient affordable childcare available to meet the needs of working/training parents and those wishing to return to work including those in minority and ethnic groups. ‘Actions required’ set out work that needed to be done to bring that about including early childhood and play partnership review taking account also of the issues of oversupply, and grant criteria reviewed. In addition, priority 5 was to work collaboratively with Job Centre Plus to ensure the lack of childcare was not a barrier to employment and criteria 7 was to improve the quality of information held on the FIS database about available childcare.

That demonstrated that there was compliance with section 22 of the Childcare Act which included addressing issues of affordability via its Childcare Delivery Plan. That was all part of the relevant background of which members were aware in February 2015. The duty had to be seen in the context of steps being taken to address the issue of affordability.

It was clear from the content of the duty and the guidance that the childcare sufficiency was a target duty. The defendant accepts that the childcare sufficiency duty is relevant in the context of a decision on nursery education and this is why it is addressed in detail and at length in the reports before Cabinet. The childcare sufficiency duty cannot fetter the Council’s choice as to what nursery education to fund. It is untenable to suggest that the only option available to the Council to satisfy the childcare sufficiency duty could ever be to fund free full time nursery education for three year olds.

Subject to a Wednesbury challenge, which there is not, there has been manifest compliance because:

It was entirely rational for the defendant to conclude that fifteen hours of nursery education free of charge was sufficient for children in its area. As a target duty it was sufficient that the defendant was taking appropriate steps at a strategic level within available resources to address the needs of working parents in their area. When considering what steps were appropriate a Local Authority was entitled to make that consideration by reference to current budgetary considerations.

As to the particular criticisms the Council was entitled to place weight upon its knowledge that over 60% of schools had decided in 2014 that they would continue to provide full time nursery education. Its assessment that some 40-60% of schools were likely to do so in 2015 was, in the circumstances, a reasonable and indeed conservative assumption.

Mr Bradshaw, who was the defendant’s Director of Education and Lifelong Learning, made it clear in his witness statement that the estimate that between 40-60% of schools would continue to provide nursery education as before was relatively conservative and one which reflected both the results of a sample of headteachers who were approached for their views on the proposal and the Council’s knowledge of what schools had planned in response to its earlier (quashed) decision of 8 January 2014 on nursery funding. The defendant had contacted a representative sample of headteachers as it had with childcare providers contacting approximately 25% of each childcare provider type.

As the Welsh Assembly Guidance Circular 013/2008 provides it is not the intention of the duty to oblige Local Authorities to meet the individual childcare needs of every working family but to ensure that, at a community level, an Authority is taking strategic action with its partners to address gaps in childcare. The childcare sufficiency duty is a target duty so that it is owed generally in respect of the Local Authority’s area.

The clause “so far as reasonably practicable” allows Local Authorities to take into account their resources and capabilities in making decisions about when to intervene to address gaps in the childcare market: see Friends of the Earth at [30] and paragraph 217 of the guidance.

There is no duty on the Local Authority to directly provide childcare. Rather it is intended that formal childcare should, in the main, be provided by providers in the private and voluntary sectors and schools with the cost being met by parents, some of whom will be eligible to claim Tax Credits in respect of qualifying childcare.

Unless there is something to indicate otherwise where members accept recommendations made by their officers it can be inferred that members adopt the reasoning of an officer report. There is nothing in the point, therefore, that the resolution is simply that the members noted the officer assessment and did not necessarily agree with it.

The Council’s duty to secure sufficient childcare for working parents is dealt with in some detail in section 8 of the officer report of 12 February. Within that section, having set out matters that the Cabinet had to have regard to, the role of the CSA, completed on a tri-annual basis and complemented by an annual refresh, was clearly identified. The 2014/15 Childcare Delivery Development Plan had eleven key priorities driving partnership work over the next three years to ensure there was even more childcare available. It showed that areas of identified need had been considered and approved by members. That was all of particular relevance to the proposal which members had to consider and both the CSA and the Childcare Delivery Plan were annexed to the officer report.

Cabinet was reminded about the guidance from the Welsh Government in circular 013/2008 which I have set out above. The steps that the Council was taking generally to address its statutory duty were set out on the face of the report.

The report then considered key points raised in the consultation exercise. Key themes included a perceived lack of sufficient childcare/wrap-around provision, the need to stop or reduce work training or education, the impact on working families and the fact that ample notice needed to be given of any changes. Specific reference was made to the fact that parents and carers commented on the affordability of childcare and the difficulty in moving a child from a school setting to a childcare setting during the day particularly if they were in employment. That was recorded as having a negative impact on the ability to work full time. It was recognised that the proposal could lead, therefore, to a much heavier reliance on informal childcare within Rhondda Cynon Taf. The report noted that should the proposal be agreed the provision of affordable childcare would be a key element in mitigating the potential impact on females and their employment patterns in the district (see 8.32). The report continued that officers had investigated, as best as they could, what childcare needs would be created by the proposal and what provision was either in place to meet the needs now or could be put in place (and within what time frame it could be put in place). The Childcare Delivery Plan informed that process, as did consultation with childcare providers across the county borough and head teachers.

The fact that the report to Cabinet on 23 June 2014 and the CSA were completed when the Council funded schools so that they were able to provide full time nursery education was noted, as was the requirement for the Council to ensure that, at a community level, it was taking strategic action with its partners to address gaps in childcare. The factors set out in paragraphs 8.62 and 8.63 of the report (above) provided the basis for officers expressing satisfaction as to the discharge of the section 22 duty. That was a reasonable conclusion that they reached in light of the information that they had obtained.

The report continued and set out the various factors which meant that childcare needs in general were likely to be met, for example, the number of childcare providers interested in providing wrap-around care and the number of schools likely to continue to provide full time nursery education. The report was alive to the issue of affordability. Officers were to ensure that EYFSS addressed problems of affordability as far as practicable. Although the report did not specify exactly how affordability problems might be overcome it set out the steps that the defendant proposed to take.

The report cannot be seen in isolation from the general childcare sufficiency documentation of which the Cabinet were aware and which was before them as annexes to the officer report. The Childcare Delivery Plan, in particular, explained the steps that the Council was taking and how the situation was to be kept under general review. The assumptions that the Council made as to what would happen in the future were reasonable, in my judgment. The assumptions made could not be based upon certain knowledge as the effect of the decision could only be monitored when in place. It was reasonable, therefore, to set out how the changed situation was proposed to be monitored and steps taken in response to that monitoring exercise.

The steps that the Council was taking in relation to affordability were ones which had to be taken, as far as it was practicable to do so. Mr Bradford’s witness statement makes it clear that appropriate contact had been made with head teachers and childcare providers. Through the aegis of the CSA and annual refresh the issue of affordability could both be addressed and kept under review. As a result, in my judgment, the defendant discharged its duty to secure sufficient childcare so far as it was reasonably practicable to do so.

The position had moved on, therefore, from the decision of Supperstone J in West & Ors (supra). On this occasion the issue of childcare was, in my judgment, approached on the basis of a correct appreciation of the Local Authority’s statutory duty. The defendant asked itself the right question and took reasonable steps to acquaint itself with the relevant information to enable it to answer the questions correctly: see Secretary of State for Education and Science v Tameside Metropolitan Borough Council [1977] AC 1014 at [1065B]. The absence of the 2011 to 2014 CSA and the 2013 refresh documents before the members on the previously successful challenge was not repeated here.

In the circumstances this ground fails also.

In the circumstances I would have granted permission for the case to proceed to a substantive hearing but for reasons set out I have dismissed the judicial review.