DAT & Anor, R (on the application of) v West Berkshire Council

This is an application for judicial review of a decision of the Defendant (‘the Council’) made on 1 March 2016 (‘decision 1’), and of a further decision made on 31 May 2016 (‘decision 2’). Both decisions were taken by the full Council. Decision 1 was an aspect of the decisions which the Council made, as part of the process of setting its budget, to cut funding to voluntary sector organisations who provide short breaks for disabled children (‘short breaks’). Decision 2 was taken after the Claimants were given to permission to challenge decision 1. Decision 2 re-affirmed decision 1. In making the budget, the Council was required (in simple terms) to balance its duty to make a lawful budget against the competing needs of 47 different aspects of its services to the public in its area. I am not concerned with the merits of these obviously difficult decisions. I must consider, instead, whether the Council acted lawfully in making decisions 1 and 2.

The relief the Claimants ask for is set out in paragraph 91 of their skeleton argument, and in more detail in their amended grounds of claim. It is:

The Claimants have been given permission to challenge decision 1, but not decision 2. I must therefore decide whether or not to grant permission to challenge decision 2 and whether the decisions (in so far as the Claimants have permission to challenge them) are unlawful. For reasons which will I explain, the challenge to decision 2 is arguable. Whether or not I should give the Claimants permission to challenge it depends on whether I am prevented from granting permission by section 31 of the Senior Courts Act 1981 (‘the 1981 Act’).

The Claimants were represented by Mr Broach and the Defendant by Mr Knafler QC. I am very grateful to both counsel for the lengths to which they went to give me the greatest possible help, both in their lucid written, and eloquent oral, submissions (and for their post-hearing notes on unmet demand, and on the significance of the way in which decision 2 came before the full Council). I am also grateful to their instructing solicitors and to their clients for supporting them to help me in this way.

There are three main questions, in addition to the question about permission to challenge decision 2.

The Council has made provision for short breaks for disabled children since 2008. That provision was increased between 2008 and 2015, as the Council’s Short Breaks Services Statement describes. Between 2008 and 2011 that provision was supported by specific funds from the Government. Despite the absence of that specific money, the Council increased its provision between 2011 and 2015. It consulted on this provision every year between 2008 and 2013.

The Council provides children with short breaks where the Council’s assessment is that they have a statutory need for a short break. It also has a power to provide such breaks for children who do not have such a statutory need, which it exercises when it considers it appropriate. Many of the services are provided by voluntary sector organisations. Those organisations receive funding from the Council and from other sources. Some charge for those services and some do not.

The Council had contracts for the provision of such services with several voluntary sector organisations. The Council ended those contracts by a letter dated 25 September 2015. The Claimants and two other families then intimated a claim against the Council. But they did not bring one, as the Council said it had not then made a decision on funding for 2016/17.

As is clear from the officers’ report for the meeting on 1 March 2016, and from other documents in the case, the Council faced an exceptionally difficult financial position late last year; and that position got worse in March of this year. As the executive summary of the report for the 1 March 2016 meeting explained, the Council has already made savings of £36m over the last six years. Two thirds of its income comes from council tax. The Council had anticipated a 25% cut in revenue support grant (‘RSG’) but the provisional settlement for the next four years (received on 15 December 2015) was much worse than that. The Council was to receive 44% less money from the Government in 2016-17. That is the third largest cut for any English unitary authority. The Council will get no grant for freezing council tax. In effect, the Government has introduced, without warning, a new formula for funding councils. The Council loses from the new formula. Council tax appeals have also had a significant effect; the Council has incurred a loss of £3m from backdated appeals and will sustain a continuing loss of £850,000 per year.

The Care Act 2014 has obliged the Council to expand its eligibility criteria for adult social care. The Government has not met the full cost of this. Various other examples of pressures on the Council are mentioned in the documents. The provisional figure for savings which needed to be made went up from £10.8 to £19m as a result of those unexpected changes by Government. The Council was able to reduce that amount to £14m by increasing council tax, by adopting a social care precept of 2% and by other changes. But not funding some cost pressures increases risk (see paragraph 5.11 of the report). That risk led to significant proposals for savings. The Council decided that 127 employees were at risk of redundancy (96 full-time equivalents); and 27 posts were deleted from the Council’s establishment.

In the result, the Council decided, on 1 March 2016, to increase council tax by the maximum it could (1.99%), to impose the maximum social care levy, which led to a further 2% increase in council tax, to increase fees and charges, and to make cuts to 47 different public-facing services. Those cuts included a 12.8% cut in the Council’s budget for short breaks. The funding given to voluntary sector organisations was cut by 52%. The Council also decided to make 127 employees redundant.

Because of the anticipated need to make savings, the Council consulted with a wide range of people and entities between 3 November and 14 December 2015. This became known as ‘the Phase 1 consultation’. Its premise was that RSG would be reduced by 25%. When the Council was told, in December 2015, that the reduction was to be 44%, it initiated its Phase 2 consultation, which proposed further savings of £2.1m.

The page of the Council’s website for the Phase 1 consultation has links to 47 separate consultations for each area in which the Council proposed a cut in spending. It explained that the Council needed to save £4.6m from services. The specific consultation on short breaks enabled consultees to fill in a questionnaire on-line (or to post it). It explained that support for families with disabled children was provided through contracts with various partners. ‘Much’ of this activity was said to be ‘non-statutory’. I accept Mr Knafler’s submission that in its context, this phrase is a term of art. It does not bear its literal meaning, but means ‘provided pursuant to a statutory duty’, and does not include activity which is provided in the exercise of a statutory discretion. The consultation document said that the activity was provided alongside direct payments, and allows what is on offer to disabled children to be subsidised. The proposal was to end all the current contracts and to revise and reduce provision, to focus on the children and families with the greatest assessed needs. The Council thought that the impact would be that children and their families might not be able to receive the same support as they were receiving.

The Council emailed its 900-strong community panel, and used Twitter, Facebook and local newspapers.

The Council’s officers also consulted the voluntary sector organisations who provided short breaks on 30 November, 4 December 2015 (Crossroads only) and 4 February 2016. There was a meeting with affected families. The notes of the meeting of 30 November show that some providers said they would not be able to provide a service if funding were reduced. Others said that they had other funding (some of it uncertain) or that they did make charges and could increase them, or that they did not make charges and would not do so, or that they might. Providers said that some services would continue. Some providers said that funding from other sources depended on funding from the Council, but Homestart had not found this a problem. NAS could deliver the same by using more volunteers. Both Mencap and NAS said they would submit a parents’ survey to the Council. Officers said that Castlegate (the Council’s residential facility) would be part of the offer but that a broader offer for those with lower needs might no longer be affordable.

On 4 February 2016, Mr Heath from the Council told providers that the Council would ensure it met statutory obligations but it hoped to provide more than a statutory minimum. He encouraged providers to co-ordinate their provision to avoid duplication and to work out what provision made the most difference. This was echoed later in the meeting by ‘JS’ from the Council. The providers summarised their services at this meeting. JS, for the Council, said that parents had said they would pay more to keep their services, and providers needed to think about charging, or increasing charges for parents who could afford it and potentially subsidising those who could not. Providers took those observations on board. Mencap said about 50% of families were not known to the Council as their needs were not critical, but they would not be able to pay, and some could tip over into crisis. Mencap could raise money to meet those costs. They recognised that they might need to ask parents for a contribution. They were considering means tests and fund raising. Mr Heath suggested that providers map their services, which could help inform the necessary decisions.

On 25 February 2016, the Council’s executive met. It considered the draft revenue budget and decided to recommend it to the full Council (which was the body which had to make a decision on it). Councillor Croft explained that by lobbying the Government, the Council had obtained a transitional funding grant of £2.8m over the next two financial years. This enabled the Council to respond to feedback from the consultation. The executive recommended that the full Council made £170,000 of this available for short breaks. After considering the feedback from the Phase 2 consultation, the executive (subject to Council approval) would then decide how to use the rest of that grant. The report for the meeting on 1 March said that this would happen on 24 March (paragraph 5.17). Councillor Doherty declared an interest at all the relevant meetings as her employer received short breaks funding from the Council. I mention this only to give one example of how close members were to the practical reality of these decisions.

The Council on 1 March 2016 had a report from officers, with many detailed Appendices (listed in paragraph 7 of the officers’ report). The material included two Appendices about the Council’s reserves, which I will consider below, an equalities impact assessment (‘EIA’) and an Appendix about the consultation. That Appendix included Appendix N(A) (supporting information), a summary of the recommendations for savings and of officers’ recommendations about them (under many headings, including ‘Short Breaks’ the text said, ‘Feedback has not uncovered any further issues which would prevent the Council from proceeding with this proposal. To proceed with this savings proposal’), a ‘Summary of the Feedback Received and Key Findings’ about short breaks, a full, verbatim account of the consultation responses, an ‘Overview of Responses and Recommendations’ by Ms Penley, the Service Manager, and two stages of an EIA, each on a template, and done on 30 October 2015 and on 29 December 2015 by Ms Penley. There were 58 responses to the consultation on short breaks, including 46 from parents or carers. The Council also took into account work done by Mencap and Crossroads (two providers) on families’ views (see above) and an on-line petition.

I will now consider this material in a relatively limited way, in order to summarise only the material which is relevant to the Claimants’ grounds of challenge.

The first point is that there is no reference in this material to the terms of any of the legal provisions on which the Claimants rely, or (in a literal way) to the questions which those provisions did, or might, pose for a council which was considering cuts to its provision of short breaks. Mr Knafler was constrained by these limits in the relevant material to submit that it nonetheless enabled members to consider, and to decide, the substance of the relevant legal questions. I will consider this submission below.

By contrast, there is significant material which is relevant to the legality issue (as addressed by Mr Knafler’s submission), and to the arguments based on section 149. The starting point is paragraph 3.4 of the report. The side heading is ‘Legal’. This paragraph refers to the duty to set a budget. It then says, ‘The savings proposals have been out to public consultation in order to meet the Council’s public sector equality duty and responses considered in setting the budget. Challenges may be made to certain proposals by means of judicial review as well as under employment legislation…All cases have been assessed in order to reduce risk of challenge regarding lawfulness of proposals’. Paragraph 5.15 of the report signposted the material which was attached to the report and which I have referred to above. Paragraph 5.16 said, ‘Members are fully aware of the Public Sector Equality Duty which requires “decision makers” to keep the welfare of service users and their families at the forefront of their mind, particularly those that are most disadvantaged’. This formula is not accidental. It is repeated in other places in the documents before the Council: see paragraph 3.4 of Appendix N, paragraph 4.2 of the more detailed explanation of section 149 in Appendix N(A), and paragraph 7.3 of Appendix (A). In two of those places (not in the main report, or in Appendix A) this formula accompanies, as if explaining, the text of section 149(1). I have read the other materials, and in my judgment they are a careful and conscientious attempt to gather relevant information and present them to members. I need say no more about the details of that material, for reasons which should become clear later on in this judgment.

The Council decided to reconsider decision 1 after permission to apply for judicial review of decision 1 was granted. The motion before the Council was that Council consider the report and appendices and ‘resolves that the decision of the 01st March 2016 be reaffirmed’. The minutes of the meeting of 31 May 2016 record an exchange between Councillor Macro and the Council’s Monitoring Officer. Councillor Macro said that the decision of 1 March 2016 was subject to the “six-month rule”, and could not therefore be rescinded under the Council’s constitution. The Monitoring Officer told him under paragraph 4.16.1 of the Council’s constitution, a motion to rescind a decision made at a meeting of the Council within the preceding six months could not be moved unless notice of the motion was given under rule 4.9 and the motion was signed by at least one quarter of members of the Council. However, the Monitoring Officer continued, ‘As members were being asked to re-affirm the decision made on the 1^st of March and not to rescind it, the ‘six-month rule’ did not apply’. After the end of the hearing I asked counsel for their submissions on the significance (or otherwise) of this material, and asked two questions about it. I received no submissions from the Council, but a witness statement from the Monitoring Officer. The witness statement did not answer those questions.

The material councillors considered included all the material they considered on 1 March 2016. They also considered various materials sent by the Claimants: a witness statement from the Claimants’ solicitor, giving (among other information) a table of the effects on each Claimant of decision 1, witness statements by the Claimants’ carers, explaining these effects, and the effects on them, and witness statements from Mencap, from Crossroads, and from the Council of Disabled Children, making similar points. The officers’ reports contained a full explanation of all the relevant statutory provisions, and of what considerations they required members to take into account. Councillors also had a detailed report from the short breaks services manager giving as much detail as the Council could (obtained from the organisations which provide the service funded by the Council) about the potential need for and use of short breaks. I say more about those reports below.

Section 17(1) of the 1989 Act imposes on local authorities a general duty (see R (G) v Barnet London Borough Council [2003] UKHL 57; [2004] 2AC 208) to safeguard and promote the welfare of children in their area who are in need by providing a range and level of services appropriate to those children’s needs. A child ‘in need’ includes a disabled child (section 17(11)). ‘For the purpose principally of facilitating the discharge of’ that general duty, every local authority ‘shall have the specific duties and powers set out in Part 1 of Schedule 2’ to the 1989 Act (section 17(2)).

Paragraph 6(1) of Schedule 2 to the 1989 Act imposes a duty on every local authority to provide services ‘designed… (c) to assist individuals who provide care for [disabled children] to continue to do so, or to do so more effectively, by giving them breaks from caring’. That duty must be performed in accordance with regulations made by Secretary of State (paragraph 6(2)). The relevant regulations are the Breaks for Carers of Disabled Children Regulations 2011 SI No 707 (‘the 2011 regulations’).

Regulation 2 defines ‘carer’ and ‘disabled’. Regulation 3 is headed ‘Duty to make provision’. Regulation 3(1) provides that in performing the duty imposed by paragraph 6(1)(c) of the 1989 Act, "a local authority must

Regulation 4 is headed ‘Types of services which must be provided’. It provides:

“(1)

In performing their duty under paragraph 6(1)(c) of Schedule 2 to the 1989 Act, a local authority must provide, so far as is reasonably practicable, a range of services which is sufficient to assist carers to continue to provide care or to do so more effectively.

(2)

In particular, the local authority must provide, as appropriate, a range of—

(a)

day-time care in the homes of disabled children or elsewhere,

(b)

overnight care in the homes of disabled children or elsewhere,

(c)

educational or leisure activities for disabled children outside their homes, and

(d)

services available to assist carers in the evenings, at weekends and during the school holidays.”

Regulation 5(1) requires an authority, before 1 October 2011, to prepare a statement for carers in their area (‘a short breaks services statement’) which gives details of the range of services provided in accordance with regulation 4, eligibility criteria, and how the range of services is designed to meet the needs of carers. That statement must be published, kept under review, and, where appropriate, revised (regulation 5(2) and (3)). The Council published such a statement in 2011, and updated it in 2014. It seems that it has not been revised since the decisions which are challenged in this claim.

Section 11(2) of the 2004 Act applies to a local authority, among others (section 11(1)). It imposes a duty to make arrangements for ensuring that the functions of the bodies to which it applies are discharged having regard to the need to safeguard and promote the welfare of children. A naïve reader of this provision might suppose that it imposes a duty to take general steps at an organisational level to ensure that functions are exercised in a particular way. Both counsel agree that such a reader’s interpretation is wrong. On the contrary, section 11(2) imposes a duty on a local authority to have regard to those factors when exercising any function in a way which affects a child: see Nzolameso v Westminster City Council [2015] UKSC; [2015] PTSR 549, a case about the exercise of housing functions in relation to a homeless mother with dependent children.

Section 27(1)(a) of the 2014 Act imposes a duty on a local authority to keep under review, among other things, its social care provision for children with disabilities. Section 27(2) requires it to consider the extent to which that provision is sufficient to meet the social care needs of the young people concerned. Section 27(3) of the 2014 Act imposes a duty on a local authority to consult with a wide range of local bodies when it exercises the functions imposed by section 27. I have not been referred to any statutory guidance or other material which explains the purpose of these duties, or the frequency with which they are expected to be exercised. In the absence of such material, and despite my misgivings about the practical consequences of a such a view, I am driven to the conclusion that they must bite, where, as here, a local authority makes a decision which will necessarily affect the scope of the provision referred to in section 27.

Section 3(1) of the 1999 Act imposes, in somewhat abstract terms, a duty on a local authority to ‘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’. Section 3(2) requires a local authority to consult various people ‘for the purpose of’ deciding how to fulfil the duty imposed by section 3(1). In deciding how to fulfil that duty, and in making decisions about consultation, a local authority must have regard to guidance issued by Secretary of State. In R (Nash) v Barnet London Borough Council [2013] EWHC 1067 (Admin); [2013] BLGR 515 it appears to have been accepted that this duty applied to a major decision by a local authority to outsource functions. It is not immediately obvious that its language is apt to apply to a decision by a local authority to reduce the amount of services a local authority procures from voluntary sector organisations, but I bear in mind the trend exemplified by Nzolameso. Mr Knafler did not suggest that section 3 did not apply here.

Statutory guidance is not admissible for the purpose of construing primary legislation. It is interesting, for what it is worth, that the recently amended statutory guidance is drafted on the assumption that section 3 applies to decisions made at a lower level than major outsourcing decisions. The guidance is short. It is aimed specifically at, and ‘sets out clear expectations for’ councils which are ‘considering changing funding to local voluntary or community groups’. Paragraph 7 says that ‘Authorities should seek to avoid passing on disproportionate reductions – by not passing on larger reductions to the voluntary and community sector and small businesses as a whole than they take on’. Three particular requirements are then listed which are not relevant to this challenge, as the Council has met them.

Section 149(1) of the 2010 Act requires a public authority in the exercise of its functions to have due regard to the three needs listed in section 149(1)(a), (b) and (c). Those are the need (a) to eliminate discrimination, harassment, victimisation and any other conduct prohibited by or under the 2010 Act, (b) to advance equality of opportunity between those who have a relevant protected characteristic and those who do not, and (c) to foster good relations between those who have a relevant protected characteristic and those who do not. Section 149(3) explains what having due regard to need (b) entails. Section 149(4) explains further, by reference to section 149(3)(b), that taking steps to meet the needs of disabled people that are different from the needs of people who are not disabled includes, in particular, steps to take account of their disabilities. Section 149(5) explains further what need (c) entails. Complying with section 149 may involve treating some people more favourably than others, but that does not permit conduct which would otherwise be prohibited by the 2010 Act (section 149(6)). Section 149(7) provides that the ‘relevant protected characteristics’ are listed in section 149(7) of the 2010 Act. They include age and disability. They differ from those listed in section 4, because ‘marriage and civil partnership’ is absent. ‘Disability’ is defined in section 6.

Section 149, and the specific equality duties imposed by earlier legislation, have been the subject of many decisions. The duty is repeatedly referred to as a duty to have regard to, or to consider, a duty. It is not. It is a duty to have ‘due’ regard to the listed equality needs. Various glosses have been added to the words of the statute, and many adjectival duties have been superimposed on the duty expressed in section 149(1). There is no dispute in this case, rightly in my judgment (as it happens), that section 149 imposes on public authorities, by necessary implication, a duty of reasonable inquiry. See, for example, paragraph 89 of the decision of the Divisional Court in R (Hurley) v Secretary of State for Business, Innovation and Skills [2012] EWHC 201 (Admin); [2012] HRLR 13. The extent of this duty will necessarily vary from case to case, and there may be cases where it will not be breached, even when there is no, or little ‘hard’ evidence about likely effects: see paragraph 121 of R (Unison) v Lord Chancellor [2015] EWCA Civ 935; [2016] 1 CMLR 25. Mr Broach accepted in his oral submissions in this case that there was no duty to have precise mathematical information.

‘Due regard’ is such regard as is appropriate in all the circumstances. Dyson LJ (as he then was) said in R (Baker) v Secretary of State for Communities and Local Government [2008] EWCA Civ 141; [2009] PTSR 809, at paragraph 31,

“In my judgment, it is important to emphasise that the section 71(1) duty [one of the equality duties which was replaced by section 149] is not a duty to achieve a result, namely to eliminate unlawful racial discrimination or to promote equality of opportunity and good relations between persons of different racial groups. It is a duty to have due regard to the need to achieve these goals. The distinction is vital. Thus the inspector did not have a duty to promote equality of opportunity between the applicants and persons who were members of different racial groups; her duty was to have due regard to the need to promote such equality of opportunity. She had to take that need into account, and in deciding how much weight to accord to the need, she had to have due regard to it. What is due regard? In my view, it is the regard that is appropriate in all the circumstances. These include on the one hand the importance of the areas of life of the members of the disadvantaged racial group that are affected by the inequality of opportunity and the extent of the inequality; and on the other hand, such countervailing factors as are relevant to the function which the decision-maker is performing.”

At paragraph 36 of his judgment, Dyson LJ rejected a submission that the inspector’s failure to refer expressly to section 71 was decisive (section 71 is one of the statutory predecessors of section 149). He said, at paragraph 37, that the question was whether the duty had been complied with in substance. Just as the repetition of a mantra referring to the provision did not of itself show that section 71 had been complied with, so a failure to refer to the provision did not show that the duty was not discharged. In my judgment this approach was approved by the House of Lords in R v (McDonald) v Kensington and Chelsea Royal London Borough Council [2011] UKSC 33; [2011] 4 All ER 881 per Lord Brown at paragraphs 23 and 24. Baker was a case about a decision of a planning inspector, and McDonald concerned a local authority’s decision to reduce the provision of care to a disabled woman. Neither case, as Mr Broach reminded me, was a challenge to a decision to cut a service which affected many people, but I do not consider that this can undermine the two principles to which Dyson LJ referred.

There is an apparent tension, if not a conflict, however, between those two principles and a trend in some of the other cases on the equality duties, exemplified most recently in R (Bracking) v Secretary of State for Work and Pensions [2013] EWCA Civ 1345; [2014] Eq LR 60 and in Hotak v Southwark London Borough Council [2015] UKSC 30; [2015] 2 WLR 1341. That general trend is to expound principles (often without relevant argument) which impose requirements on public bodies which are not expressly present in the language of section 149. In Bracking, at paragraph 25, McCombe LJ (with whom Kitchin LJ agreed) recorded that two lever arch files of authorities had been put before the Court, including 13 on the equality duties. ‘Fortunately’, he said, ‘the relevant principles are not significantly in dispute between the parties’. He gave a summary of those principles at paragraph 26 of the judgment. Principle 5(i), for example, that ‘The… decision maker must be aware of the duty to have regard to relevant matters’ is inconsistent with Baker, and to some extent inconsistent with principle 5(iii). Principle 6 ‘…general regard to issues of equality is not the same as having specific regard, by way of conscious approach to the statutory criteria’ is also, on one reading, inconsistent with Baker.

At paragraph 26(8) the Court of Appeal cited, with apparent approval, paragraphs 77 and 78 of Hurley. In paragraph 77 of Hurley Elias LJ said, ‘Provided the court is satisfied that there has been a rigorous consideration of the duty, so that there is a proper appreciation of the potential impact of the decision on equality objectives and the desirability of promoting them, then, as Dyson LJ in Baker… made clear, it is for the decision maker to decide how much weight should be given to the various factors informing the decision’. In paragraph 78, he said, ‘The concept of “due regard” requires the court to ensure that there has been a proper and conscientious focus on the statutory criteria… In short, the decision maker must be clear precisely what the equality implications are when he puts them in the balance….’.

In paragraph 60 of Bracking McCombe LJ said, ‘In the end, drawing together the principles and the rival arguments, it seems to me that section 149 imposes a heavy burden on public authorities, in discharging the PSED and in ensuring that there is the evidence available, if necessary, to demonstrate their discharge. It seems to me to have been the intention of Parliament that these considerations of equality of opportunity (where they arise) are now to be placed at the centre of formulation of policy by all public authorities, side by side with all other pressing circumstances of whatever magnitude’.

Paragraph 60 of Bracking recognises that there may be circumstances in which the evidence it refers to is not necessary, and that there may be circumstances in which considerations of equality do not arise. These are important provisos. Nonetheless, it seems to me, also, that if and in so far as paragraph 60 suggests that public authorities must give equal weight to equality considerations and to other ‘pressing circumstances of whatever magnitude’ it is not supported by the language of section 149, and is inconsistent both with the passage from Hurley which is cited with apparent approval in paragraph 26(8) of Bracking, and with Baker. I consider, therefore, that paragraph 60 of Bracking cannot have been intended to have that effect.

The practical question, or questions, posed by section 149 in relation to a particular decision will depend on the nature of the decision and on the circumstances in which it is made. It is clear from the authorities that the fundamental requirement imposed by section 149 is that a decision maker, having taking reasonable steps to inquire into the issues, must understand the impact, or likely impact, of the decision on those of the listed equality needs which are potentially affected by the decision. On appropriate facts, this may require no more than an understanding of the practical impact on the people with protected characteristics who are affected by the decision (see, for example, paragraph 91 of R (MA) v Secretary of State for Work and Pensions [2014] EWCA Civ 13; [2014] PTSR 614, and paragraph 92, ‘In my view it was clear that, in conducting this process, the Secretary of State did have due regard to his statutory duties. It was obvious that he was aware of the serious impact of the bedroom criteria would have on disabled people’). Further, where an impact is obvious, as a matter of common sense, but its extent is inherently difficult to predict, there may be ‘nothing wrong in making a reasonable judgment and then monitoring the outcome with a view to making any adjustments that may seem necessary: the section 149 duty is ongoing’ (per Underhill LJ at paragraph 121 of R (Unison) v Lord Chancellor (No 3) [2015] EWCA Civ 935; [2016] 1 CMLR 25.

I am conscious of the intense pressures, financial, and of timing, to which the decisions 1 and 2 were a response. I cannot ignore the time constraints which affected the Council in making decision 1, given, in particular, the tight framework for making a decision on the budget, the 47 different areas in which cuts were proposed in Phase 1, and the unexpected and late further reduction in Government funding which forced the Council to initiate the Phase 2 consultation. I do not, I hope, understate any of those factors. They are, however, not relevant to the legality issue, in my judgment. The only question on that issue is whether, in substance, members were given the help they needed on the legal issues which they had to consider before making a cut to the funding for short breaks.

These factors are relevant to the section 149 issue to some extent, because they are the background against which I must decide whether or not the Council had ‘due regard’ to the listed equality needs. The local authority context is also relevant to the question of due regard in a further way. The full council, unlike a government minister, is a collective body. It is made up of councillors, who (apart from members of the executive) are not full-time politicians. Those who are not retired, or not in work, often have full-time jobs outside local government. They fulfil important public duties part-time, often at meetings in the evening, often after a full day’s work. They are entitled to expect, and very often are given, excellent help by full-time expert officers to understand the policy and legal issues which will equip them to make lawful decisions. I readily accept Mr Knafler’s submission, based on paragraph 36 of the judgment of Baroness Hale in R (Morge) v Hampshire County Council [2011] UKSC 2; [2011] 1 WLR 268, that courts should not impose too demanding a standard on officers’ reports. Councillors are democratically elected. They do a difficult and at times unpopular job under tight time constraints. Parliament has given them, and not the courts, the job of making difficult decisions such as setting the annual revenue budget for their area. I also accept his submission that officers are entitled, if they can, to simplify and make concrete, for the purposes of the decision at issue, what may be complex legal issues. It may not always help councillors to give them the text of a statute. A pithy summary, if it is accurate, is often much more use.

I also accept that Mr Knafler’s submissions that the Council discharged the duty of reasonable inquiry imposed by section 149 by consulting with providers and parents/carers, and that the materials provided by officers to members (the summary of the consultation and the collection of the verbatim comments) could, in the circumstances of this case, and given the inherent future uncertainties, and the information gathered by officers from providers, have enabled members to understand the likely practical impact of the cut in funding on parents carers and children. I reject Mr Broach’s various submissions, based on a variety of different suggested deficiencies in the gathering and analysis of the relevant information by officers (for example on the question of unmet need), that the material could not have given members the necessary factual understanding. I bear in mind the warning of Laws LJ in R (MA) v Secretary of State for Work and Pensions [2013] EWHC (QB) 2213; [2013] PTSR 1521 at paragraph of 86, of the dangers of the court ‘micromanaging’ decision making by public bodies.

The difficult question in this case is whether, despite that provision by officers to members of the necessary factual information, the Council failed to have due regard to the listed needs. I am conscious that this is a question of substance, not form. The problem is that while members were given the text of section 149, they were directed, in four places in the documents (in two cases in text adjacent to the recitation of section 149(1)), to the formula to which I have referred above. That would have been fine if the formula accurately encapsulated, for the purposes of the decision about short breaks, the effect of section 149. However, first, the formula is not tailored to that decision, and seems to be a general formula devised for all the 47 decisions. Second, it does not accurately capture the effect of section 149 in the context of that decision.

As I have found, members had the factual material which would have enabled them to have due regard to the statutory needs. However, they were directed to look at that material in a way that did not help them to focus on the right question, but, instead, told them to focus on an irrelevant, or at best, only partly relevant, question. Had the report only included the text of section 149(1), it might not have made councillors’ lives easy, but I could have been satisfied that they had considered the right question. The flaw in the presentation of the material is that the repeated use of the formula to which I have referred, twice with the text of section 149(1), and twice on its own. That way of presenting the equality issues unavoidably suggests that the formula is equivalent to, or a substitute for, the statutory considerations, and it is not. It does not satisfy me that members asked themselves the right question when they looked at the material officers had so diligently assembled.

Mr Broach’s submission on the legality issue was that the Council had breached the various duties imposed by the provisions he relied on. I do not consider that that is the real question on this issue. The question, rather, as I have suggested, is whether members were given the help which they needed to answer the questions posed by those provisions in the context of this case. I appreciate that, just as some people can utter prose without realising that that is what they are doing, it is possible for members to comply with the law, as it were, unconsciously, if their minds have been directed to the issues, in substance, which the law requires them to consider: cf per Lord Bingham in R v Somerset County Council ex p Fewings [1995] 1 WLR 1037 at p 1046B-H. But as he recognised in that passage, that conclusion is difficult to reach if members’ minds have not been directed to the relevant statutory language, and thus to the question which they should address. A paraphrase of the statutory test which includes some, but not all, relevant matters is not enough. Express reference to the statutory test (or an accurate paraphrase or summary, as the case may be) ensures a focus on all the factors which Parliament or (in the case of delegated legislation) the executive, with the necessary Parliamentary sanction, has prescribed.

There is no trace in the materials given to members of any reference to the express language, or to the substance, of regulations 3 and 4 of the 2011 regulations, or of section 27(2) of the 2014 Act. The Council had to consider, for example, in reducing the funding to voluntary sector organisations, whether the provision which remained would, in short, be sufficient, either simpliciter, or so far as was reasonably practicable. I do not say that, if that was officers’ view, and it had been conveyed to members, they could not so have concluded. But there is no trace in the report and appendices of any guidance for members about any of the issues posed by regulations 3 and 4, or by section 27(2). There is no reference, either, to the duty imposed by section 11 of the 2004 Act, or the best value guidance, to which the Council was required to have regard. In other words, members’ attention was not drawn to mandatory relevant considerations. I conclude that on those grounds, also, decision 1 was unlawful.

Mr Broach submitted that the terms of the motion showed that the Council had predetermined the issue. I would not have been inclined to accept that the terms of the motion, without more, showed that councillors did not conscientiously reconsider the decision about short breaks. However, the exchange between Councillor Macro and the Monitoring Officer which I have already summarised suggests that the motion came before the Council in a form which did not enable members to rescind decision 1. There is nothing in the report or in the minutes about rule 4.10, which is referred to in paragraph 6 of the Monitoring Officer’s witness statement, nor were the procedural points made in that paragraph made at the meeting. So members were told they could not rescind decision 1 on 31 May. I accept that it was implicit in the resolution that members could have decided not to re-affirm decision 1. However, I do consider that the way in which the issue was presented to members on 31 May gave a clear impression that they were expected to apply a rubber stamp to the decision of 1 March 2016, and a clear impression that they could not decide to rescind it. This is not altered by the fact that the summary report for the meeting is expressed in more open terms and says, for example, next to the side heading ‘Financial’: ‘Should the Council subsequent to this further Review rescind on its decision, further savings from another area would need to be sought’. The recommendation of that report was that the decision of 1 March 2016 ‘be re-affirmed’. In my judgment this state of affairs gives rise to a very clear appearance of predetermination. This means that decision 2 has no effect.

In case that is wrong, I should consider whether the materials members were given for the 31 May meeting enabled them to answer the questions which were essential steps on the path to a lawful decision. It is clear from the minutes of the meeting that members wanted to be assured that the Council could still meet its obligations if the cut was made.

I start with Ms Penley’s report. This said that 170 families were receiving statutory services including short breaks. In 2014-15 and 2015-16, between 350-400 children in all (including those who received statutory services) received short breaks. It was not possible to be precise because the information from providers was anonymised and there might be some double-counting, as some children received services from more than one provider. Data sheets were attached. There was no double counting in the Council’s records, but these children might appear more than once in the providers’ records. The material from providers in the Claimants’ solicitor’s witness statement was summarised. This included some information about the impact of the cut on organisations’ ability to provide services. Ms Penley provided more in the report. Officers were working with voluntary organisations to help them with transitional funding, and to get other funding. There would be a reduction in social and group activities in particular at weekends and during school holidays. As a result, the families with statutory needs would find it harder to have their non-statutory needs for group activities met. There might be upset at having to change a service, which disabled children found particularly distressing. Families with no statutory needs might find it harder to get some respite from caring to find group activities for their children.

The picture was a shifting one for the reasons given in paragraph 2.12 of the report. There was some scope for the market to respond. The report considered the impact of the cut on carers of children with no statutory needs, and on those children. Paragraph 4.1 concluded that a reduction in funding would reduce the range of short breaks provision but that the Council was ‘still committed to ensure the provision available continues to exceed the statutory minimum expected and will continue to monitor this provision and ensure children’s needs are prioritised’.

In the main summary report, members were reminded that ‘protecting and promoting the interests of vulnerable children’ was one of the Council’s key priorities. The cut would ‘impact on children with special educational needs and/or disabilities, and family members and others who care for them’. Officers recommended that the decision be re-affirmed because of the need to make savings, the need to protect other budgets from even bigger reductions and the difficulty in raising the Council’s income than it is [sic] or using reserves’. The report went on ‘The essential question for Members is whether the budgetary reduction is justifiable despite the important need to protect and promote the welfare of children with special educational needs and/or disabilities, and notwithstanding the consequences for such children and their carers’. Statutory needs would still be met, but there would be likely to be less provision of activities where children could mix with other children and with a variety of support workers outside school hours. ‘This may have implications for children and their carers’.

The report accurately set out paragraph 6 of Schedule 2 to the 1989 Act. The report said that the Council would still meet assessed statutory needs. The effect of the cut would be that the Council would fund fewer services. Children with statutory needs and their carers would have less choice. That could affect children’s ability to live lives which are as normal as possible. Children with no statutory assessed needs would have fewer targeted services available. This might mean that they developed statutory needs; the Council was committed to meeting those. It was not possible to assess the likely impact in numbers. Members were pointed towards the report of Ms Penley, and the witness statements, for the best assessment the Council could provide of the likely impact on children and their carers. In my judgment the report enabled members to have regard to the considerations which were relevant to paragraph 6 of Schedule 2.

The report quoted paragraph 3 of the 2011 regulations. It referred to the impact of a decision to cut funding on the factors which are put in play by regulation 3. Mr Broach accepts that members took into account ‘the matters required by regulation 3’. I agree.

The report, further, accurately set out regulation 4, and section 27 of the 2014 Act. It said, at paragraph 6.12, that members need to consider broadly whether the short breaks provision in the Council’s area would be ‘sufficient’ to meet non-statutory needs of two types. There would be less provision as a result of the decision, and the report set out what that would involve. Mr Broach, I think accepts that members had regard to the terms of regulation 4.

He submits nonetheless that members did not know the level of demand for short breaks (including unmet demand), the level of supply which would be available, and whether officers considered that supply would meet demand. Without knowing those things, he submits, members were not equipped to ask, or to answer, the question posed by regulation 4; that is (in sum) whether, so far as reasonably practicable, the Council would be able to make sufficient provision for short breaks. In my judgment, although it could have been clearer, the material in the summary report and in Ms Penley’s report adequately informed members what question they should be asking themselves in this context, and gave them the material to answer it.

The same reasoning applies, mutatis mutandis, to Mr Broach’s arguments about section 27(2) of the 2014 Act (which was considered, in a broadly similar way, in paragraphs 6.11-6.13 of the summary report).

The report also rehearsed section 11(2) of the 2004 Act. It said that members had to consider whether the proposed reduction was ‘justifiable because of the need to make …savings having regard to the need to safeguard and promote the welfare of children, in particular the children who stand to be adversely affected by the proposed decision’. Paragraph 6.16 gave accurate advice to members about the weight to be given to the section 11(2) considerations. Members needed to consider, in particular, whether it was possible to use the Council’s reserves, increase charges elsewhere or make even greater savings. Mr Broach accepts that the 31 May report is evidence that members took into account considerations which were relevant for the purposes of section 11 of the 2004 Act. I agree.

The report quoted section 149 (except section 149(9)). Members’ attention was drawn to the consultation responses, to Ms Penley’s report and to the witness statements. The report said, ‘The essential point is that members are required carefully to consider the important needs of children with special educational needs and/or disabilities and whether the decision is justifiable given the importance of [the needs listed in section 149 are then summarised]’. The aspect of public life which was emphasised was ‘social, recreational and leisure activities in social and group settings’. At paragraph 6.20 the report reminded members that it was much harder for children with disabilities to engage in such activities and ‘to enjoy a childhood of equal equality to other children’. The different aspects of the importance of the activities to children and to their carers was stressed, whether or not those activities met statutorily assessed needs. Carers would often be women. All those considerations were very important and powerful but they were not absolute. It would be open to the Council to conclude that, important as they were, it was necessary to do less than the Council would otherwise wish to; but members had to be satisfied that the cut was proportionate, and that no other measures, such as increasing fees or reducing other budgets could be used. Members would also need to be satisfied that officers would monitor the impact of the reduction properly.

Unlike the (main) report for the 1 March 2016 meeting, this report set out the relevant text of section 149. It also summarised its effect, for the purposes of decision 2. I consider that the summary in the May report is properly focussed on the decision in hand, and unlike the summary in the 1 March report, accurate enough for that purpose. I have asked myself whether that conclusion is affected by the flaws in the reports for the 1 March meeting. I do not consider that it is. Members knew that the purpose of the 31 May meeting was to review decision 1 in the light of the Claimants’ grounds for judicial review and that one of the purposes of the summary report was to set out, in one place, the legal materials necessary for that. I do not think that members can have been confused by the formula used in the earlier report. They were also provided, as I have held, with the materials that would have enabled them to answer the right question for the purposes of decision 1; that material was provided again, and supplemented, for the purposes of decision 2, by the further information in Ms Penley’s report.

Under the heading ‘Best value’, the report summarised the relevant part of the statutory guidance. It said, putting the bar, if anything, somewhat too high, ‘As members will be aware, the Council should not pass on disproportionate reductions to the voluntary and community sectors’. The decision slightly increased funding for Castle Gate and reduced funding for voluntary organisations. That increase was needed to ensure that the Council was able to meet statutorily assessed needs. The services provided by the voluntary organisations were of great social value but their funding could be reduced without endangering the Council’s ability to meet its statutory duties.

Mr Broach criticises this part of the report for not equipping members to ‘have regard to’ paragraph 7 of the best value guidance. He makes a number of detailed attacks on the report. I bear in mind Baroness Hale’s observations in Morge. Proportionality is an elusive concept in this context. One of Mr Broach’s submissions implies that it entails some sort of mathematical relationship between the size of any cut to the local authority’s provision and what is provided by voluntary organisations. I do not consider that can be what is intended in this context. What members were being told was that the Council’s priority was to have enough money to meet statutory needs. If that was the priority for the available money I do not consider that a cut which did not imperil that provision, but which affected voluntary organisations, could arguably be ‘disproportionate’. It follows that the guidance members were given in the summary report was adequate.

For those reasons, I reject the submission that members were not equipped, on 31 May 2016, to take into account the factors which were relevant to a lawful decision. They were. They were not, however, in a position fully to reconsider decision 1 because they could not, under the Council’s constitution, rescind that decision. For the reasons I have given, decision 2 was materially affected by apparent predetermination. As a result, decision 2 does not show that, had the Council, properly directed, reconsidered decision 1, the outcome for the Claimants would have been the same (or not substantially different). It also means, in my judgment, that decision 2 cannot cure the flaws which I have found in decision 1.

Mr Knafler submits that I cannot grant any relief in relation to decision 1 for two reasons. The first reason is, he submits, that I can be satisfied that it is highly likely that that the outcome for the Claimants would not have been substantially different if the conduct complained of had not occurred (section 31(2A)). Counsel agreed, in my judgment rightly, that that ‘conduct’ must be the conduct of the Council in so far as I have held that it was unlawful (I note the wider definition in section 31(8) but that seems more apposite to the considerations which arise at the permission stage). I reject that submission for two reasons.

First, as at 1 March 2016, the transitional funding grant had not been fully allocated by the Council. It is not for me to speculate about what the Council would have decided if it had asked itself the right questions on 1 March 2016, based on the applicable statutory framework. The balance of probabilities must be the relevant standard. This was a very difficult decision for the Council, as is clear from the minutes of the debate. Members were very aware of the needs of disabled children and their carers. As Mr Knafler rightly emphasised in his submissions, the Council is sympathetic to their plight. I am not satisfied to that standard that, had members applied the right test, they might not have decided to vary the recommendation of the executive about the amount of transitional funding grant which should be allocated to this service. Had they done so, the outcome for the Claimants might well, in my judgment, have been different. I appreciate that they have assessed needs, which are met by the Council in any event, but they also have an interest in what the Council would refer to as ‘non-statutory’ activity; and any small increase in the availability of breaks would, it seems to me, make a substantial difference to a disabled child and his or her family.

Second, as I have explained, decision 2 does not show that if members were properly directed in law, they would reach the same decision as they did in March. The motion before members asked them to re-affirm decision 1, and they were told by the Monitoring Officer that they could not rescind it. I thus do not have evidence on which I can confidently rely that, had the matters complained of not occurred, members would have reached the same decision about the reduction in funding for short breaks which they did reach.

If that is wrong, I would accept Mr Broach’s submission that there is an exceptional public interest in ensuring that when local authorities cut spending in a way which affects vulnerable children, they are seen to observe the relevant legal provisions, particularly where, as here, the amounts at stake are, in relation to the budget as whole, not large, and where there was flexibility in the money available to accommodate a smaller cut. It is in my judgment appropriate to grant relief (see section 31(2B).

The second possible inhibition on relief on which Mr Knafler relies is section 66 of the 1992 Act. Its effect, among other things, is that a calculation made in accordance with section 31A of the 1992 Act can only be challenged by judicial review, and, if it is so challenged, the only relief which can be granted is an order quashing the calculation. Mr Broach accepts that an order quashing the budget calculation would be disproportionate, and I agree. He submits, however, that he does not challenge the overall calculation. Rather the effect of the challenge (if successful) is that a component of that calculation would be reconsidered in circumstances where the Council had the flexibility at the time to change that component without affecting the total calculation because of the unallocated transitional funding grant, and where, if the Council has to reconsider now, it can increase that component figure without affecting the calculation because of the availability of the reserves, which the Council decided, as part of decision 1, to fix at a particular level, in order to guard against the emergence of various risks in the course of the financial year.

He relied on an express provision in the Appendix F to the officer’s report which explains that the General Reserve is ‘expected to cover any of the following risks should they arise ...risks in relation to litigation’. He submits that the risk of being required to reconsider these decisions is such a risk, and that the Council could properly now draw on its reserves to meet that risk, and its consequences. Mr Knafler did not make a distinct submission on this point; rather he submitted that it was implicit in decision 2 (which as Mr Broach notes, refers cryptically to ‘difficulty…in using reserves’) that the Council had considered this and decided, for good reason, not to do so. I am not satisfied by the terms of the new reports prepared for decision 2 that the Council was invited to consider the use of reserves, or, if it did, why it decided not to use them, since apart from the allusion to ‘difficulty’, the report does not explain whether or not it would be proper to draw on the reserves, and does not tell members what the ‘difficulty’ is; whether it is insuperable, or could be overcome. The Council has the reserves. The risk of losing this case, and of being required to reconsider the decision is arguably a risk the reserves are held to meet. I have heard no argument from the Council that it is not.

There is a further point. The summary report for the 31 May 2016 meeting appears to assume, contrary to the true position, that members could have decided to rescind decision 1 on 31 May. It refers to the potential for further savings to be made in another area if decision 1 were rescinded (see paragraphs 3.1 and 3.5). This material does not suggest that the Council would be unable, in practice, to reverse decision 1, if it considered that it was appropriate to do so.

I therefore consider that were I to grant relief in relation to decision 1 it would not be relief in respect of a challenge to one of the calculations referred to in section 66. It follows that I am not restricted to making an order quashing one of those calculations. I will consider further written submissions on relief if the parties wish to add to the submissions they have already made on this issue, but my provisional view is that the reduction in funding for short breaks which was decided on 1 March 2016 should be quashed.

The Council resists the grant of permission to apply for judicial review of decision 2. The essential argument is that it is highly likely that the outcome for the applicant would not have been substantially different if the conduct complained of had not occurred. I reject Mr Broach’s submission (based in part on an obiter passage of a decision of mine in another case) that a defendant cannot rely on this provision unless it has a witness statement showing that the section 31(3C) test is met. Whether a witness statement is necessary will depend on the facts.

The challenge to decision 2 is clearly arguable. Although I have held that the relevant materials would have enabled members to make a lawful decision, I have already decided that they did not make a lawful decision. They were told, correctly, that (for procedural reasons) they could not rescind decision 1. That means, in my judgment, that decision 2 was vitiated by apparent predetermination, and that it was not a decision which was effective to replace decision 1.

I am not satisfied that the test in section 31(3C) or (2A) of the 1981 Act is met in relation to decision 2. The reasons are similar to the reasons I have given in relation to decision 1. There are two points, in short. First, I am not satisfied that members, for whom this was a difficult and painful decision, would have reached the same decision had they been told on at the meeting on 31 May that they could rescind decision 1. Instead, they were very clearly told that they could not do that. Second, I am not satisfied that there was no room for manoeuvre financially (either from reserves, or from the potential for further savings to which officers referred in the summary report).

Decision 1 was unlawful, for the reasons I have given. I am not satisfied that I should refuse relief on either of the grounds relied on by the Council. Subject to further submissions, if the parties wish to make them in writing, my provisional view is that I should quash decision 1. I consider, for the reasons I have given, that decision 2 was unlawful, and not effective to replace decision 1. I do not consider, for the reasons I have given, that I should refuse permission to apply for judicial review of decision 2, or that I should refuse relief. My provisional view about this decision also, is that I should quash it, subject to any further written submissions. My provisional view, again subject to any further written submissions which the parties wish to make, is that it is not necessary to order the Council to reconsider decisions 1 and 2. If those have both been quashed, it follows that the Council will have to reconsider them. Nor do I consider (provisionally) that any declaration is necessary.