LB Islington is the latest in the line of cases challenging cuts to services as a result of the straitened circumstances in which public bodies now find themselves. Here, we outline the background to the case and the court's decision, and provide our comment on its impact for public bodies.
In July 2013, the second defendant London Fire Commissioner (the Commissioner) put forward a plan (the Plan) with the following principal effects:
- the closure of ten London fire stations;
- the decommissioning of 14 fire appliances; and
- the reduction by 552 in the number of firefighters in London.
The need for substantial cuts in London fire services' expenditure during the financial years 2012/13 and 2013/14 led to the Plan's development. Fire services throughout the country have faced similar challenges due to reduced support from central government. This was the first occasion when cuts to front-line services in London had to be considered.
In August 2013, the first defendant, the Mayor of London (the Mayor), directed the third defendant, the London Fire and Emergency Planning Authority (the Authority), to adopt the Plan the Commissioner had proposed. In September, the Authority resolved to comply with that direction. In October, the claimants issued judicial review proceedings with respect to the defendants' decisions to implement the Plan.
The claimants were seven local authorities and one elderly individual with disabilities who lived in one of the areas which would be affected by the Plan. Their grounds of claim included complaints as to the rationality of the risk assessment underlying the Plan, the adequacy of the consultation which preceded its adoption and breaches of the public sector equality duty (under section 149 of the Equality Act 2010) by the Commissioner and the Mayor.
The assessment of risk
The Plan was based on a 'principle of equal entitlement' (i.e. that all Londoners should have equal entitlement to the fastest possible attendance times of fire engines, irrespective of whether they live in an area with a higher or lower likelihood of a fire occurring).
The claimants argued that the use of this principle meant that the Plan failed to:
- properly take account of 'local risk'
- have sufficient regard to those areas in the claimant boroughs where there were substantial numbers of vulnerable groups (e.g. the elderly or disabled).
Foskett J found that local risk had in fact been factored into the Plan through the use of a sophisticated modelling process, used by many other fire authorities, into which was fed the five year record (April 2007 to March 2012) of all genuine, non-false alarm, serious dwelling fires. A large quantity of highly relevant information about the likely location of serious fires throughout the whole of London was therefore included in the decision-making process from the outset. While there were other ways in which local risk could have been identified, the modelling amounted to a perfectly rational way of doing so.
As to the principle of equal entitlement, Foskett J acknowledged that there could be a multitude of different perspectives on what would be the 'fairest' or 'safest overall' arrangement for emergency fire services in London. However, someone had to make a decision as to how best to allocate the limited resources available. The court could only direct reconsideration of such a decision if it was shown that the process by which it was arrived at was unlawful and/or irrational, which in this case it was not.
Following on from their arguments about the failure of the Plan to take account of local risks, the claimants argued that the consultation which preceded its adoption failed to provide sufficient information in this respect.
Specifically, the consultation failed to supply sufficient information on response times to particular wards (it provided times for the boroughs calculated by averaging response times to their constituent wards). Had such a level of detail been available, it was argued, responses to the consultation might have been different.
Foskett J held, following previous case law, that while greater knowledge of the detail can affect the nature and degree of opposition to a proposal, even where greater detail was likely to foment greater opposition its absence did not render the consultation unlawful. One had to 'exercise a degree of proportionality and reality' in this regard. As one of the purposes of consultation is to enable consultees to make reasoned objections to the proposals, the 'ultimate test' must often be whether that did occur in a particular consultation. In this case it had, and the extent of opposition to the Plan was plain.
The claimants were also unsuccessful in other criticisms levelled against the consultation, including that it attempted to underplay the negative effects of the Plan and that it provided inadequate or misleading information.
The public sector equality duty (PSED)
The claimants argued that both the Commissioner and the Mayor had breached their respective PSEDs. It was asserted that the Commissioner had erroneously focused on 'lifestyle characteristics' and had merely collated relevant data related to protected characteristics without feeding this into the decision-making process.
As the Mayor had not conducted his own equalities analysis, instead relying on that of the Commissioner, the Commissioner's failings had likewise infected the Mayor's discharge of his own PSED. In particular, it was argued that the Mayor had merely relied on the Commissioner's assertion that equality considerations had been taken into account.
Again the court disagreed. Focusing at a borough level on those most likely to experience fire had been a legitimate means of considering, among others, those with protected characteristics. In addition, to require the Mayor to conduct his own equalities analysis would have been unrealistic and unnecessary as a matter of law.
Although the PSED imposed upon him was a personal one, it required him to do no more than apply his mind to the statutory provisions and satisfy himself that all appropriate analyses had been carried out. Although there was no evidence to indicate the extent of the Mayor's engagement with the detail of the Commissioner's analysis, he had all of the relevant material available to him and been therefore been entitled to conclude that the plan was consistent with section 149 of the Equality Act.
LB Islington is the latest in the line of cases challenging cuts to services as a result of the straitened circumstances in which public bodies now find themselves. The court was asked to canvass a range of public law issues - from the level of scrutiny to be applied to individual decisions to the old favourite public law grounds of irrationality, flawed consultation and breach of the PSED.
With the line of such challenges likely to continue, this case provides more comfort to public bodies taking difficult resource allocation decisions since, like many such challenges, it was unsuccessful.
The two most fertile grounds for claimants in this area continue to be flaws in consultation and the discharge of the PSED. These provide the greatest chance for establishing some sort of failure in either procedural or substantive terms, and are the grounds on which cuts challenges have tended to be most successful thus far.
In this case, Foskett J took a very pragmatic view in relation to both issues, which can be summed up in his statement that the court had to 'exercise a degree of proportionality and reality'.
In terms of the consultation, although some information could have been included, and some better presented, the fact remained that the consultation was sufficient to allow respondents to make clear their opposition to the proposal, and many did. With regard to equalities, the Commissioner had already done a lot of work in analysing the potential impact of the Plan and there was no need for the Mayor to repeat this. So long as he had that information available to him he could rely upon it to discharge his own PSED.
However, there is a difference between comfort and complacency. Public bodies must continue to work to get consultation and the PSED right. In doing so, potential defendants need to be aware of some of the strong messages that the courts have sent in recent years on these matters - in regard to where the balance lies when deciding what information to provide in a consultation, or ensuring that the decision-maker actually has the relevant equalities information in front of him or her at the time of decision.
Foskett J was anxious to emphasise, in classic public law terms, that the role of the court in this case was not to decide whether or not the decision to adopt the Plan was right, or whether the court agreed with it. He also referred to the well-established principle that the 'court has never engaged in determining how a finite pot is to be distributed between competing demands'. Rather the court's role was to decide whether the process by which it was reached was lawful or unlawful.
This case follows the general trend exhibited by the unsuccessful 'cuts' cases which tend to get much less publicity than their successful, but less numerous, counterparts. It illustrates that where a public body has acted within the 'thick black line' parameters identified by the court on issues such as consultation and thePSED, judges will continue to take a traditionally pragmatic approach and will be slow to let more minor points derail important decisions concerning resource allocation.