Consultation

July 12th, 2019

In R (LF) v Buckinghamshire County Council (2019) EWHC 1817 (Admin) a judicial review challenge failed to a decision by the Council, by its Cabinet, to close 19, and retain 16, of its Children’s Centres, whilst ensuring the continuing use of the closed Centres for early years and community benefit. Andrews J was satisfied that the Council had carried out a fair Consultation before Cabinet made its decision, that it took the responses properly into account, and that it complied with all its relevant statutory duties.

There was an obligation on the Council under Section 5D of the Childcare Act 2006 to “secure that such consultation as they think appropriate” was carried out before any change was made in the services to be provided through a Children’s Centre or before the closure of any such Centre.  Andrews J said (paragraph 34) that gave the Council “a wide discretion as to what the consultation should comprise”, subject only to the requirements of statutory Guidance.At paragraphs 35/36 Andrews J summarised the requirements of a procedurally fair and lawful Consultation. At paragraph 37, she said that: (1) the Council was entitled to consult on the proposals which it had approved for consultation, rather than on something it did not propose; (2) it is lawful for a proposer to indicate in the Consultation document what his preferred option is; (3) fairness does not necessarily require the provision of information about options which have been rejected; and (4) the information that must be provided is the information that is necessary in order for the consultees to express meaningful views on the proposal(s).

At paragraph 38, Andrews J distinguished Moseley in the Supreme Court; and at paragraph 42 she said that the present case was not similar to Moseley, “because there was nothing misleading about the Consultation documents”. At paragraph 43 she rejected the Claimant’s criticism that the Consultation document failed to give sufficient reasons to permit of intelligent consideration and response.  There was she said a “frank explanation” of why the Council was not consulting specifically on “no change”, and there was not an indication of a closed mind.

At paragraph 49, Andrews J referred to the submission on behalf of the Claimant that the Section 5D duty obliged the Council to consult on the “in principle” question whether to make changes to the existing provision of Children’s Centres, and not just on how to make such changes. In rejecting that submission, Andrews J said: “…that is not what s.5D says. It gives the Council a wide discretion as to the nature and scope of the consultation, whilst making it clear that the consultation must take place before any changes are implemented. It does not need to consult before reaching a provisional decision that there should be some change. But even if Ms Morris’ submission were right, the Council did not need to include maintaining the status quo as a specific option, in order to have included it within the Consultation.  Consultees were given a fair opportunity to tell the Council that they wished to keep the status quo and that it should make its £3.1 million savings in some other way, and many of them did just that”.

Andrews J did not accept that there was any predetermination, or an appearance of predetermination, or that the consultation took place at a time other than the formative stage. The only determination was as to the scope of the consultation, and no inference could be drawn that conscientious consideration would not be given to the responses from consultees at the critical stage, i.e. the time when the decision came to be made.

Andrews J concluded, at paragraph 52, that it was not until the March 2019 Meeting that Cabinet ultimately decided to make a change, the Consultation process was entirely fair, and its results were taken into account when the final Decision was made.

Not only did the Consultation ground of challenge fail. So did challenges based on other statutory provisions, including the sufficiency duty under Section 5A of the 2006 Act and the PSED.  As regards the sufficiency duty, Andrews J said:-

“21.    The discharge of the sufficiency duty … involves the Local Authority considering and assessing three things: the need for children’s centres in their area; what provision would be enough to meet that need; and what number of children’s centres it would be reasonably practicable for the Local Authority to provide, taking into account such matters as affordability, and practical considerations such as the availability of appropriate buildings, geographic location and accessibility.  Provided all three of these matters are taken into account, there is no obligation to consider them in any particular order.”

“58.    It is a matter for the local authority concerned to assess and decide what would be sufficient provision of children’s centres to meet local needs, and what is reasonably practicable to achieve this provision. Neither the 2006 Act nor the Guidance specify any methodology to be adopted.  It was plainly sensible for the Council to have one Consultation on the proposed revision of its overall Early Help Strategy, of which children’s centres were one important component. As children’s centres provide both universal and targeted services, the assessment methodology adopted by the Council covered both. The research carried out prior to the Consultation was in-depth and comprehensive; the Consultation itself was well-structured and wide-ranging, and provided more data which would help the Council to assess need and sufficiency (as well as drawing its attention to adverse impacts) before it made its final Decision.

  1. The re-named “family centres” were not ceasing to be children’s centres; they were children’s centres which provided additional services for older children and families with both older and younger children – like the Claimant’s family. The Council rationally formed the view that it was not reasonably practicable to keep 35 children’s centres open without making a huge reduction in services, and moreover, that maintaining the status quo would not enable it to give the better support to families that it wanted. … Therefore, the real question for the Council when focusing on its duty under s.5A at the time of the Decision was whether the 16 centres it proposed to retain and use to deliver the existing and enhanced services would meet the need of families with young children in Buckinghamshire. In making that assessment it was entitled to take into account the proposed use of those buildings which would cease to be used as children’s centres which included continuing to use them for early years provision.
  2. The Council plainly concluded that the 16 family centres would suffice. It did not need to spell this out in terms, so long as it performed the duty in substance, as I am satisfied it did.  There was no single line addressing sufficiency, which gave Ms Morris’s submission a certain superficial attraction; but as Mr Goudie submitted, consideration of sufficiency to meet local need was pervasive through every stage of the decision-making process. …
  3. The model that was eventually adopted … plainly had the duty well in mind. … the fact that the Council had regard to a wider range of needs does not mean that it failed to address the needs of young children and their parents.”

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