Practical Law

The recent decision of the High Court in R (West and others) v Rhondda Cynon Taff County Borough Council [2014] EWHC 2134 (Admin) is a useful reminder for local authority officers of the importance of getting a report to members right.

Facts

In this case, the claimants challenged the council’s decision to cease funding full-time nursery education for three-year-olds from September 2014 in order to meet a substantial funding gap. Although the council had for many years provided full-time nursery education free of charge, on 8 January 2014 the council’s cabinet decided that, with effect from September 2014, the nursery arrangements would be changed so that:

• Part-time nursery education of up to 15 hours a week would be provided from the term after a child’s third birthday.
• Full-time provision would not be provided until the term after a child’s fourth birthday.

Before that meeting, cabinet members had had “access” to the consultation responses on the nursery changes (and other service change proposals), which they spent time viewing. They had also been provided with:

• An earlier report of 21 October 2013 (which included a preferred proposal to fund three hours’ education per day rather than full-time education for three and four-year-olds until the September after a child’s fourth birthday).
• The consultation report on the proposals to make service changes.
• An equality impact assessment on the proposals.

The claimants successfully challenged the council’s decision on three grounds. These were that the council had failed to have regard, or due regard to:

• Its duty under section 118 of the Schools Standards and Framework Act 1998 (SSFA 1998) to secure  that the provision of nursery education for three-year olds is “sufficient” for their area.
• Its section 22 duty under the Childcare Act 2006 to secure, so far as reasonably practicable, that the provision of childcare is sufficient to meet the requirements of those parents who are working or undertaking education or training that may enable them to obtain work. Although the decision in the case concerned educational provision, it also impacted on childcare provision because any change in the hours of educational provision for three-year olds potentially affected the parents’ need for childcare.
• Its duties under sections 17 and 18 of the Children Act 1989 (CA 1989) (that is safeguarding the welfare of children in their area who are in need).

So where did the council go wrong?

The report to cabinet

What is apparent from the judgment is that there were mistakes and omissions in the report to cabinet. These serve as a reminder of the importance of getting the report right.

In relation to the council’s duty to secure sufficient nursery education, neither the report to cabinet nor the other documents that were provided for the 8 January meeting directed members to the fact that the council’s duty was to provide “sufficient” nursery education. Further, the council had misdirected itself in law. Appendix 1 of the cabinet report, which was the report to members dated 21 October 2013, wrongly stated the council’s statutory obligations were to “provide all children with ten hours of nursery education per week from the beginning of the term following their third birthday”. It went on to say that while this was an obligation, it was not compulsory for children to attend school until they reached compulsory school age (that is the term following their fifth birthday).

The court rejected the council’s submission that members reading the relevant sections of the report would have recognised that this was a statutory minimum requirement, not a fixed obligation. The court’s view was that members reading this section of the report (headed “Statutory Obligations”) would have understood there was a statutory obligation to provide ten hours of nursery education per week and that, if that was achieved, no further statutory duty arose. No statement in any other document before members at the meeting on 8 January 2014 would have disabused members of that misapprehension.

The report to cabinet, although it included information to enable members to consider what amount of nursery education was in fact sufficient for the children concerned and members had material that referred to the advantages and disadvantages of full-time versus part-time nursery education, ignored the council’s duty under section 118 of the SSFA 1998 to secure sufficient nursery education. The court’s view was that, unless members were informed of their statutory duties, there was a real risk that they would adopt the wrong approach when considering an issue such as securing the provision of sufficient nursery education. This is what had happened. The council did not ask itself what was sufficient nursery education for its area and it could not be inferred that it had considered its duty to provide sufficient nursery education when taking the decision. Even though the council submitted that the decision taken was to provide 15 hours of part-time education, which was more than the minimum requirement, the court accepted the claimants’ submission that there was no evidence that the cabinet considered 15 hours per week as providing sufficient education. The cabinet may simply have considered 15 hours per week to be an appropriate number of hours in the circumstances, having regard to its budgetary problems.

The council’s duty under section 22(1) of the Childcare Act 2006 was a highly relevant and material factor in making a decision as to what was sufficient nursery education for the area. It depended, among other matters, on what childcare provision was available and affordable for those with children to meet their needs outside the times when they  were in receipt of nursery education. The cabinet should have asked itself the question that if nursery education was reduced from full-time to part-time provision, would the council be able to comply with its statutory duty to ensure sufficient childcare for those covered by the Act? However, the report to cabinet (and the accompanying documentation):

• Did not address that question or advise members to address it.
• Did not provide any analysis on which that question could be addressed.
• Invited members to consider the information in the appendices to the report and to decide whether to proceed with the process.

Further, the cabinet was not referred to its statutory duties under the CA 1989 and was not provided with the statutory framework in which properly to consider the consultation material. Although the court accepted that the duty under section 17 of the CA 1989 was a general or “target” duty that is concerned with the provision of services overall rather than a particular duty owed to specific children, the council had not complied with its duties under section 18 of the CA 1989 for children in need.

So what should have been in the report?

The report to the cabinet (and the accompanying documents) should have referred to the council’s statutory obligations and identified the issues that arose from those obligations and that had to be decided.

The council’s cabinet should have had proper regard to the statutory guidance issued under section 22 of the Childcare Act 2006. If cabinet members had been referred to the terms of section 22 in the statutory guidance, they would have had to consider specifically the matters set out in the guidance and whether they had sufficient information to make a decision. Unless the attention of the decision-maker is drawn to the governing statutory provision and the question to be addressed, then, as Sir Thomas Bingham observed in R v Somerset County Council ex p Fewings [1995] 1 WLR 1037 at 1046, a decision is lawful more by good luck than judgment.

It was not sufficient to provide the cabinet with a report detailing the results of the consultation exercise, as all this meant was that members read what was said in the responses about the sufficiency of childcare. They should have been provided with the statutory framework in order to consider and properly assess the issue.

Issues  an officer should have in mind when preparing a report for members

When drafting a report for members who will be taking a decision, officers should:

• Ensure the report contains the relevant background information and papers to the proposals.

• Include details in the report of the relevant considerations that those taking the decision must have in mind. A local authority acts unlawfully if, in making a decision, it fails to take into account a relevant consideration (R (Alconbury Investments Limited) v Secretary of State for the Environment, Transport and the Regions [2001] UKHL 23, at 50). Any later attempts to justify the decision are likely to be coloured by the wish to achieve a positive outcome in litigation.

• Set out in the report all the options that are available in connection with the decision and the reasons for rejecting them. Remember that members are not deemed to know something that the officers know, but which is not transmitted to them (R (National Association of Health Stores) v Department for Health [2005] EWCA Civ 154 at 29).

• Have in mind the words of the High Court in R (W) v Birmingham City Council [2011] EWHC 1147 (Admin) that:

• decision-makers need rigorous and accurate advice and analysis from officers, not statements of what officers think the decision-makers want to hear; and that
• the court’s role is to review whether due regard has been given, not merely to consider whether the absence of due regard wasWednesbury unreasonable.

• Remember that it is often a crucial document. Therefore, it has to be sufficiently clear and full to enable members to understand the important issues and the material considerations that bear upon them and to decide those issues within the limits of judgment that the law allows them.

For more information on decision-making, see Practical Law’s Practice notes, Decision-making by public bodies: avoiding legal challenge,  Acting as a legal adviser to a decision-maker and Checklist, Cutting funding and public services.