R (Hunt) v North Somerset Council [2013] EWCA Civ 1320

ISSUES: This case raised two issues of importance to cuts decision-making: (1) the extent to which it must be proven that decision-makers have personally read information prepared by officers on equalities impacts, and (2) where the challenge is to a LA budget item, what relief if any should the court grant?

FACTS: The LA had proposed to reduce its spending on youth services by around £365,000 for the financial year 2012/13. It published the proposal on its website and in its own monthly magazine; and it held meetings with representatives of local youth clubs.

The LA also updated its EIAs, one of which applied solely to the impact of budget reduction proposals in relation to services for children and young persons. However only summaries of the EIAs were put before council members in advance of the meeting at which a final decision was made to approve the cuts. Councillors were told how to access the full EIAs in an appendix to the document that they received, but they were not specifically directed to consider them. Section 507B of the Education 1996 Act requires LAs to “take steps to ascertain the views of qualifying young persons in [its] area”. The appellant was a 22 year old with ADHD, learning difficulties and behavioural problems, and as such was a “qualifying young person”.

JUDGMENT: The Court of Appeal held that there was “no sufficient evidence” to conclude that the LA had taken the required steps.

As to the equality duty, the Court of Appeal crucially rejected the argument (accepted at first instance) that it could be inferred that council members had considered the full EIAs. The Court held that “if council members are provided with a particular set of materials for the purpose of a meeting, they can, absent positive evidence to the contrary effect, be taken to have read all such materials and also to have read any additional materials to which they were expressly referred”.

However that was not the case here. The report to the Councillors who made the decision did not indicate “any need or requirement to read the EIAs themselves. Whilst they were told how to access the EIAs, they were not told, either expressly or impliedly, that they must or should consider them before the meeting”. The failure of the decision- makers to consider the full EIAs breached the PSED.

However the Court of Appeal refused to grant any relief. The decision could not be quashed without also quashing the Council’s decision to approve the entire revenue budget for 2012/2013. It was too late to unwind what had already been done and to grant relief in these circumstances would be “detrimental to good administration”.

COMMENT: Where councils are the decision- maker, the usual practice is to have the important documents which need to be considered available to the Councillors, for example in a file or on a table in the council chamber or room where the decision is being considered and taken. This decision affirms that general practice, though highlights the crucial importance of officers drawing attention in sufficiently clear terms to the need actually to read that material.

It should also be noted this practice only gives rise to a presumption that the necessary materials have in fact been considered. Such a presumption can be rebutted. For example, a dissenting councillor may sign a witness statement claiming that throughout the decision-making meeting the file containing the necessary reading was not opened. LAs need to be wary of such problems, and take steps as far as they are able to ensure that Councillors actually read the materials prepared for them. This is particularly the case where such materials relate to a statutory mandatory consideration, such as the PSED.

As to relief, it is relatively unusual to have a challenge to a LA budget item. Courts are extremely reluctant to strike down parts of the LA budget, particularly well after the event, due to the impact that has on local authority budgeting, and the effect on good administration and third parties. That is different to the more common type of challenge, to a proposed cut to a service which has implications for local authority finances, but is not a challenge to the LA budget of itself.