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England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Hunt, R (on the application of) v North Somerset Council [2013] EWCA Civ 1320 (06 November 2013)
URL: http://www.bailii.org/ew/cases/EWCA/Civ/2013/1320.html
Cite as: [2013] EWCA Civ 1320
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ON APPEAL FROM THE QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
CARDIFF CIVIL CENTRE
Mr Justice Wyn Williams
Strand, London, WC2A 2LL |
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B e f o r e :
LORD JUSTICE RIMER
and
LORD JUSTICE UNDERHILL
____________________
| R (on the application of AARON HUNT) |
Appellant |
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| - and - |
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| NORTH SOMERSET COUNCIL |
Respondent |
____________________
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Mrs Jane Oldham (instructed by North Somerset Council) for the Respondent
____________________
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- This is the judgment of the court.
- This appeal is against an order made on 18 July 2012 by Wyn Williams J, in the Administrative Court, dismissing the challenge by Aaron Hunt, the appellant, to the lawfulness of the decision dated 21 February 2012 of the respondent, the North Somerset Council ('the Council'), to cut its Youth Services budget for the year 2012/2013 by £364,793. That reduction formed part of a proposed reduction of 72% in the Council's Youth Services budget between the years 2011/12 and 2013/14. It is said that the consequence of the reduction would be the withdrawal by the Council from universal Youth Services provision and its partial withdrawal from other Youth Services provision, with the Council continuing to provide only 'targeted' provision to particularly vulnerable youths.
- Mr Hunt is 22. He has ADHD, learning difficulties and behavioural problems such that he is a 'qualifying young person' for the purposes of section 507B of the Education Act 1996, pursuant to which the Council provided its youth services. Mr Hunt used to attend the Escape Club, a weekly youth club provided by the Council for young people aged 11 to 24 with special needs. The club would meet on Wednesday evenings at South Weston Youth Centre. Following the challenged decision, Mr Hunt attended a reconfigured version of the club at a new location. The club remained under a threat of closure and continued to function only because of the availability of transitional funding. We were told that the club continues to function but counsel were not agreed as to whether the 'targeted' services directed at Mr Hunt had or had not gone.
- Mr Hunt's case is that in making its decision to cut the budget, the Council unlawfully failed to comply either with (i) its obligations under section 507B of the Education Act 1996 and the applicable statutory guidance, or (ii) its public sector equality duties under section 149 of the Equality Act 2010.
- Wyn Williams J rejected both assertions. He refused permission to appeal, as did Tomlinson LJ on the papers. Toulson LJ, as he then was, granted permission on a renewed application limited to: (i) ground 1 of the grounds of appeal, which goes to Mr Hunt's case under section 507B; and (ii) part of ground 2, which goes to his case under section 149.
- Before setting out the facts, it may be convenient to set out the legislation with which Mr Hunt asserts the Council failed to comply.
- This provides, so far as material:
- Statutory guidance (see subsection (12)) was issued in March 2008. We shall refer to it when considering the arguments in relation to section 507B.
- The issues before the judge under section 507B were: (i) whether the Council's reduction in the Youth Services budget for 2012/13 was the exercise of a function under section 507B(1); if yes, whether the Council had (ii) under subsection (9)(a), '[taken] steps to ascertain the views of qualifying young persons' in its area in relation to the matters there identified; and (iii) under subsection (9)(b), had also '[secured] that [such views were] taken into account' in passing the resolution of 21 February 2012 approving the reduction.
- The judge answered all three questions in the affirmative. On the appeal, Mr Hunt (represented, as below, by Mr Wolfe QC and Ms McColgan) submitted that whilst the judge was correct to answer issue (i) as he did, he was wrong in his decisions on issues (ii) and (iii). The Council (represented, as below, by Mrs Oldham) submitted, by a respondent's notice, that the judge's answer to question (i) above was wrong and that the proposed budget reduction was not the exercise of a section 507B function. If, however, the Council was wrong on that, it submitted that the judge was correct to conclude as he did on issues (ii) and (iii) and so find that the Council had discharged its obligations under subsection (9).
- This provides, so far as material:
- The obligation to 'have due regard' to the statutory equality needs is known as the 'public sector equality duty', or 'PSED', as we shall call it. The issues before the judge under section 149 were whether the Council members present at the meeting of 21 February 2012, when the revenue budget was approved, had the 'due regard' required of them by section 149 and, therefore, whether they discharged the PSED. The judge found that they did. He relied in part on an inference that the members had read equality impact assessments ('EIAs') relating to the impact of the budgetary cuts. The members had not been provided with the EIAs for the meeting, although they had been told how to access them. The only material relevant to the discharge of the PSED with which they were provided was a summary of the EIAs. It was implicit in the judge's findings, although he did not say so expressly, that for the members merely to have had an appreciation of what was in the summary would not have amounted to a discharge by them of the PSED.
- Mr Hunt wished to argue on the appeal that, even if the judge was right to infer that the members had read the EIAs, their content was still such that the members could not be regarded as having discharged the PSED. He was, however, refused permission to do so. The limit of his permission was to argue that the judge was wrong to find that the members had read the EIAs. By a respondent's notice, the Council argued that even if the judge was so wrong, it was not in dispute that the members were to be taken as having all read the material that was actually provided to them, that material included a summary of the EIAs and the members' consideration of it enabled them properly to discharge the PSED.
- In addition, also by its respondent's notice, the Council argued that even if the judge was wrong in his conclusions that the Council had properly discharged its obligations under section 507B of the Education Act and/or section 149 of the Equality Act, it was and is inappropriate to make any order against the Council requiring it to reconsider the relevant part of its budget for 2012/13, and the court should exercise its discretion to refuse such relief.
- We gratefully take these, in part verbatim, from the judge's judgment. Our account substantially repeats what can there be found, but (as Tomlinson LJ noted when refusing permission) the case is very fact-sensitive, and we have considered it appropriate to rehearse the facts fully in order that this judgment may be intelligible on a stand-alone basis. In doing so, we have supplemented the judge's account by, in some instances, including a fuller reference to the documents to which we were referred.
- In December 2010, the Secretary of State for Communities and Local Government made a widely expected announcement in Parliament in relation to cuts in finance allocations for local government for 2011/12 and 2012/13, including cuts in specific grants relating to the provision of services for children. In anticipation of such cuts, the Council had for some months been engaged upon a review as to how its expenditure could be reduced, and it had identified youth services as an area in which it might consider making savings. From about the end of 2010 or early 2011, the Council engaged in a comprehensive assessment of its services provided to young people and how they might be provided in the future.
- On 29 March 2011, the Council's Senior Leadership Team considered an initial report. The team decided that a full review of the youth service provision was required and that consideration would be given to some of the existing services being instead provided and financed by other organisations. On 19 July 2011, the team considered a further report that had been prepared in June. They concluded that a complete re-design of youth services was required. The evidence of John Wilkinson (an assistant director within the Children's and Young People's Services Directorate, and a member of the team) was that whilst the team:
- During the late summer and autumn of 2011, the Council undertook what it claims was a comprehensive consultation exercise about its emerging proposals for youth services and all other aspects of the contemplated cost cuts. The relevant events, as identified in the judge's judgment, are as follows.
- In August 2011, a local newspaper offered an invitation to its readers (both in its edition of 18 August and on its website) to submit budget-saving suggestions to the Council. It explained that the district was facing a £14m saving in the first year's target in a four-year budget trimming drive, which in total had to find ways to save £47m. The article said that 'this week, in the run-up to the next budget, Mercury readers are being asked to get onboard and come up with sensible suggestions for change'. The article made no express reference to cuts in the youth services budget.
- On 13 September 2011, the Executive Committee of the Council considered the first draft of a Medium Term Financial Plan ('MTFP') for the years 2011/12 – 2014/15. It ran to some 80 pages and Appendix 3 contained a Schedule of about 200 proposals for reductions in the Council's spending, including about 25 proposals for reductions of expenditure on services for children and young persons, all with the reference 'CYPS'. The relevant item for present purposes is reference CYPS-26, relating to the provision of 'Integrated Services' and advancing a 'Budget Reduction Proposal' over the four years 2011/12 to 2014/15 of £195,000, £364,793, £260,566 and £0 respectively. That proposal was described as:
- The Executive Committee approved the draft MTFP for consultation purposes, and it was published on the Council's website so that the public could comment on it. Mr Wilkinson's evidence described the consultation about the proposed cuts as 'full' whilst acknowledging that 'specific consultation directly with individual young people regarding the budget was admittedly limited'.
- On 21 September 2011, there was a meeting between Council officers and representatives of the nine youth clubs in North Somerset with voluntary management committees. The Council's literature for the meeting, the subject of a slide presentation, described it as a 'Youth Service Briefing' and one slide defined the aims of the session as being to outline the context for 'proposals for changes to the Youth Service', to explain the proposals and to provide an update on complementary work taking place and an opportunity for questions. Another slide, 'Budget Reduction Strategy', included under its first bullet point 'Re-modelling community based services', although no explanation of the 're-modelling' was provided. The material presented to the meeting does not, on its face, suggest that any consultation was being carried out, or that the committees were being asked to pass the information that was provided on to relevant young persons so as to obtain their response about them. The thrust of the presentation appears to have been simply to explain what was proposed by way of changes.
- The draft MTFP was the subject of publicity in the 31-page October 2011 edition of North Somerset Life, a magazine the Council publishes monthly. Page 2 informed readers that one of the suggestions for achieving savings was to 'reduce the amount we spend on youth services'. Page 23 included a table headed 'Budget reductions within council departments', the third line of which, 'Children and Young People's Services', listed the percentage budget reductions for the four years 2011/12 to 2014/15 as being proposed to be 16%, 25%, 30% and 34% respectively. The magazine provided no explanation of the nature of the proposed changes in the youth services provision that would enable such reductions to be achieved. Readers were invited to write to Councillor Ashton with their views on the proposed cuts, including on youth services. The magazine was delivered to all houses within the Council's administrative area.
- On 9 November 2011, Council officers met again with representatives of the management committees of youth clubs within its area. The purpose of the meeting, as explained in the Council's pre-meeting literature, was to confirm the budget position, explain the future role of the Council and the likely future model for commissioning services, set out a timeline and inform those present about available support and ask them about their needs. The Council officers made another slide presentation. One slide stated that 'Budget Reduction for Youth Services will go ahead'; another that the 'Impact on youth services – [is] from £1.1m in 2010/11 to £333k in 2013/14'; another, 'The Way Ahead', stated that:
- Up to this point, there had been only limited involvement in the process by Council members. At about this time, however, a member working group (consisting of six councillors), established in June 2011 by the Council's Scrutiny Panel for Children and Young Peoples' Services, was consulted about the draft MTFP, which it accepted 'reluctantly' but made recommendations to mitigate the impact of its proposals.
- In November 2011, the Council updated the EIAs that had been produced in June. One of the EIAs applied solely to the impact of the budget reduction proposals in relation to services for children and young persons.
- At a meeting on 15 November 2011, the full Council considered a motion to endorse the MTFP as a policy document. The draft MTFP had been sent to every working member five days before. The EIAs produced in November 2011 were not, however, also sent to them: all they had was a summary of them in Appendix 6 to the draft MTFP. The judge described the relevant EIA, and what was sent to the Council members, as follows:
- The Council had, before voting on the resolution, received representations specifically relating to cuts in the youth service, including from members of the public. Two Council employees (Helen Thornton of Unison and Rowena Hayward of GMB) addressed the members, Ms Thornton saying that 'impact assessments should be carefully considered and equality issues addressed'.
- The outcome of the meeting was that the Council endorsed the MTFP as a policy document. The minutes show that some members proposed budget proposals alternative to those in the draft MTFP and it is clear that the proposed cuts of expenditure in youth services influenced the promotion of such alternatives.
- On 1 December 2011, the Scrutiny Panel considered both the MTFP and the alternative budgets. They referred both for further consideration by the Executive Committee and the full Council.
- The EIAs were updated in January 2012: these were the last EIAs before the meeting, and the challenged resolution, of 21 February 2012.
- This EIA described budget reduction proposal CYPS-26 in the same way as had the November 2011 EIA. There followed six sections, of which section 1 asked 'What is the potential impact of the proposals on diverse groups?', and section 1.2, headed 'Youth Service Budget', said as follows:
- Section 2 asked 'What information do you have that demonstrates this impact?', and under the heading 'Youth' the answer given was:
- Section 3 answered the question 'Have those affected by this budget reduction proposal been consulted?' as follows:
- Section 4 asked 'What course of action could we take to mitigate the impact identified in Q1? Is the course of action justifiable?' The response, under the heading, 'Youth Service' read:
- Section 5 asked 'What are the key messages that you need to communicate about the impact of this budget proposal?' The material answers were:
- There was a meeting of the full Council on 17 January 2012. A question was asked whether all youth clubs in North Somerset had applied for grants then available, to which the answer was that most had.
- The Council's Executive Committee met on 7 February 2012. Five days before, the members were sent a comprehensive report prepared by Council officers. The Committee was asked to approve the Revenue Budget for 2012/13 and to refer it to the full Council for approval, and it did so. In addition to the officers' report, the Committee members had the alternative budgets that were later to be canvassed before the full Council and a four-page summary of the EIAs undertaken in January, such summary being an updated Appendix 6 to the MTFP. The Committee did not have the EIAs themselves.
- The documents sent to the Committee members for the purposes of the Executive committee meeting on 7 February were also sent to every member of the Council for the purposes, and in advance, of the meeting of the full Council on 21 February. They were also not provided with the EIAs themselves. They did, however, like the Committee, have the summary of them in Appendix 6 to the MTFP, which we shall now explain.
- The summary explained that EIAs are 'undertaken to demonstrate that the council has paid "due regard" to the need to eliminate discrimination, promote equality and foster good relations in all aspects of its work'. It identified nine 'Groups' that were included in those it had consulted about the impacts of the budget proposals. It advised members how they could access the EIAs themselves, namely via a council website, for which the address was given, or from the Council's Equality and Diversity Manager, Ms Roberts. The summary described the 'Remodelling [of the] youth provision service provision' under CYPS-26 as a 'High impact area', and described the proposals to mitigate the impact as follows:
- Also included was a summary of the comments and responses arising from the consultation exercise. In relation to CYPS-26, the concerns expressed were that the reduction in youth services might have an increased impact on other services, such as police and social care, and that young people accessing youth services were likely to be from the most deprived areas in North Somerset, to which the Council's responses were summarised as follows:
- Appendix 6 also had a section entitled 'Trade Union Comment', under which appeared:
- Whilst it would have been apparent from the summary that proposal CYPS-26 would affect young people generally ('age' being a 'protected characteristic' for the purposes of section 149 of the Equality Act), the summary did not explain how the proposal might affect those young people with other protected characteristics, for example by reason of disability (such as Mr Hunt), sex or sexual orientation. It included nothing equivalent, for example, to the considerations reflected in the second paragraph under the heading 'Youth Service Budget' in section 1 of the EIA (see paragraph 32 above). Whereas that paragraph explained that the reduction would have an adverse impact on young people to whom those protected characteristics apply, the summary did not do likewise.
- The meeting on 7 February 2012 was attended not just by the Committee members but also by 29 Council members not on the Committee; the result was that a total of 35 Council members were present. There was a debate. Councillor Lake drew attention to Appendix 6, commented that the EIAs were available on the Council's website and (as the minutes of the meeting record) 'suggested' that members should look at them in advance of the forthcoming budget-setting Council meeting. Councillor Ashton referred to the EIA 'in respect of the remodelling of youth service provision' and informed the Committee members that an update on changes to youth services would be included in an edition of 'Members Only' to be published the following week and emailed to all members. Councillor Lake said in his evidence that the 'reports and minutes of Executive meetings are available to the public and are circulated to all Members of the Council'. He did not, however, say when the minutes of the meeting of 7 February were circulated; in particular, he did not say, or suggest, that they were circulated before the meeting of the full Council on 21 February, and the judge made no finding either way as to that.
- The outcome of the meeting was that the Committee recommended to the full Council that it should approve three resolutions, including 'That the Revenue Budget for 2012/13, including special expenses, be approved'.
- By a letter of 13 February 2012, each Council member was summoned to a meeting of the full Council on 21 February. An agenda was included. Members were reminded by item 14 on the agenda that they had received all the agenda papers supplied to the Executive Committee and that they were 'commended to review them prior to the Council meeting'. It is not in dispute that each member must be assumed to have respected that commendation and to have read all the agenda papers provided to him. Those papers included an officers' report recommending approval of the resolutions, and such report listed various 'Background Papers' provided to the members, one of which was the MTFP, Appendix 6 of which included the summary of the EIAs. They were also provided with the officers' report to the Executive Committee, of which paragraph 12, 'Equality Implications', read:
- All but five of the 61 councillors were at the meeting. There was considerable discussion about the cuts in relation to youth services. Ms Thornton of Unison was allowed to address the meeting and the minutes record her as having:
- Ms Thornton had, on 14 February 2012, distributed a document to all Council members, which she also presented at the meeting. It included the following:
- There was a full debate. Amendments were proposed, including for an increase in the budget for children's and young people's services by £350,000, which was defeated. In due course, resolutions were approved as follows:
- Finally, we should refer to Councillor Lake's evidence, to which the judge attached some importance. He was a member of the Executive Committee and his portfolio of responsibilities included responsibility for the Council's approach to equalities. It was he who at the meeting of 7 February 'suggested' that members should, ahead of the full Council meeting on 21 February, look at the EIAs themselves. He also said:
- The judge dealt, at paragraphs 60 to 83, with Mr Hunt's case that the Council had breached its duties under section 507B of the Education Act. The case was that the proposal in CYPS-26 – which, from the promulgation of the draft MTFP in September 2011, was and remained for a cut of £364,793 for 2012/13 - envisaged, as a measure of last resort, the closure of youth centres, and so was a proposal to exercise a function of the Council's obligations under section 507B(1). That is the subsection that imposes an obligation on a local authority 'so far as reasonably practicable, [to] secure for qualifying young persons sufficient educational … and recreational leisure-time activities [and sufficient facilities for both types of activity]'.
- The Council's responsive submission was that section 507B(1) was not engaged, since proposal CYPS-26 was directed not at whether the youth services currently provided should continue to be provided, but about who should provide them. It was, therefore, simply directed at re-modelling the services, with the reference to closure of centres as a last resort being simply to a risk that might eventuate. The proposal included the provision of transitional funding while different persons were sought to provide parts of the services.
- The judge preferred and accepted Mr Hunt's case. He expressed sympathy for the view that if all that CYPS-26 entailed was a change to the service provider, with no possibility of a reduction in the service, section 507B(1) would not be engaged. He said, however, that;
- Mr Hunt's successful demonstration that the budget cut involved a Council decision as to the provision of relevant activities and facilities did not, by itself, enable him to succeed in his challenge as to the lawfulness of the cut, nor was it said that it should. His case was that, as the Council was exercising a section 507B(1) function, it had first to carry out a proper consultation exercise under subsection (9)(a) and, in compliance with subsection (9)(b), to ensure that the results of such consultation were taken into account when making its budget cut decision on 21 February. The consultation exercise required the Council to 'take steps to ascertain the views of qualifying young persons'. Mr Hunt's case was that the Council failed in this duty and that it followed that the budget cut decision was necessarily flawed by a failure to take such views into account.
- The judge said that he proposed to approach that question by identifying what the Council did 'to ascertain the views of qualifying young persons' and then consider whether what was done amounted to 'taking steps'.
- As to that, he held that there was wide consultation on the draft MTFP before it was adopted as a policy document at the Council meeting of 15 November 2011. He had no doubt that many persons and organisations were given the opportunity to raise issues of concern in relation to youth services, and all those persons and organisations would have included 'qualifying young persons' and their representatives. Every household in the Council's area received the October 2011 copy of North Somerset Life, which said in terms that there were proposals to reduce the spending on youth services. There were two meetings in September and November (see paragraphs 22 and 24 above), and whilst their primary purpose was apparently to inform those attending of proposals that had already been formulated, they inevitably afforded an opportunity for those attending to voice concerns on cuts in youth services expenditure. The judge concluded that 'all these measures, cumulatively, are properly to be categorised as taking steps to ascertain the views of qualifying young persons'.
- The judge recognised that the measures were not targeted at specific young persons, noted the point made in the January 2012 EIA that a plan was being developed to facilitate further consultation, 'particularly with young people who access youth provision', and that no such consultation occurred before the decision on 21 February 2012. That, however, did not mean that the Council had not crossed the modest statutory threshold requiring it to 'take steps': it was not required to take all desirable or reasonably practicable steps. Having so concluded, the judge said further:
- The second ground of Mr Hunt's challenge was that the Council members present at the meeting of 21 February 2012 did not 'have due regard' to the PSED imposed upon the Council by section 149 of the Equality Act before resolving to approve the revenue budget. The judge summarised what the members had been provided with, saying that the one significant omission from such material was the EIAs prepared since January 2011, including those of January 2012: they had no more than a summary of them. They did, however, know of their existence and how to access them; and at the Executive Committee meeting on 7 February 2012, Councillor Lake had suggested to members present that they should read the EIAs before the meeting of 21 February. The judge inferred that all members had also received Ms Thornton's submission of 14 February 2012 in time to read and understand it before the meeting, and that submission drew explicit attention to the PSED and the substance of those duties. He said Mr Wolfe had advanced no 'compelling submissions as to why I should conclude that the members did not read the EIAs in advance of the meeting on 21 February 2012'. He continued:
- The judge turned to address the rival arguments as to whether the EIAs contained sufficient information to enable the members to comply with their statutory duties. Mrs Oldham submitted that they had dealt specifically, and sufficiently, with the topic of 'Integrated Children's Services', into which proposal CYPS-26 fell. Mr Wolfe submitted that the data in the EIAs did not address the question whether the reduction proposed in CYPS-26 would impact disparately on groups defined by reference to protected characteristics: the targeting of the 'most vulnerable' did not address any disparate impact on other youth groups. Nor did the EIAs address the obligations to pay due regard to the statutory needs to advance equality of opportunity and to foster good relations between persons of different groups defined by reference to protected characteristics.
- The judge's conclusion on these submissions was as follows:
- It is implicit in the judge's conclusion that he considered that the members would only have discharged the PSED if they had read the EIAs; and that if they had merely read the summary of the EIAs in Appendix 6, they would not have discharged the PSED.
- In light of the judge's conclusion, he did not have to decide whether, had he been against the Council, he would have granted Mr Hunt appropriate relief. He nevertheless indicated that, had that become a live question, he would have done so.
- It is logical to deal first with the point raised by the Council's respondent's notice, namely that the judge was wrong to find that the resolution to reduce the youth services budget for 2012/13 was an exercise by the Council of its functions under section 507B(1). If the Council is right about that, questions as to the sufficiency of any consultation exercise under section 507B(9)(a) do not arise, nor does any question under section 507B(9)(b) as to whether the Council had sufficient regard to the results of such consultation exercise when approving the budget on 21 February 2012.
- Mrs Oldham's point was the same as that she advanced to the judge. Its essence is that budget proposal CYPS-26 was directed at a change as to who was to continue to provide the youth services, not whether the services should continue to be provided. It was a proposal whose end object was the re-modelling of the services. The reference to closures of centres as a last resort was a reference to a risk that might eventuate if the proposal did not proceed as planned: it was not a reference to a risk that would eventuate. The proposal itself included the provision of transitional funding to maintain the youth services in place while different providers of it were sought. Proposal CYPS-26 was for both the cut in funding and the re-modelling of the service by way of the substitution of other providers in respect of universal provision. The consultation obligations in section 507B(9) do not require the Council to take steps to ascertain the views of qualifying young persons as to who the ultimate provider of existing activities and facilities is to be. There was, therefore, no basis for the judge to hold that the Council was subject to the consultation obligations he identified. Mrs Oldham accepted that, as the Council's proposal involved the transfer of the provision of certain services to other providers, section 507B(8) imposed upon it a duty to consult appropriate persons as to whether it was expedient for such services to be so provided, and she said it was clear that the Council had discharged that obligation. We do not understand any point under section 507B(8) to have been argued before the judge, and he made no decision on it.
- Mr Wolfe submitted in response that the description of CYPS-26 as proposing only a re-modelling, or change of provider, could not stand with the evidence as to the likely effect of the proposal. He referred to paragraphs 25, 27 and 29 of Mr Wilkinson's evidence, which acknowledged that the changes to youth services involved in CYPS-26 would be likely to have a high negative impact for some groups of young people, which was intended to be mitigated by the proposed new model of alternative provision, but also recognised that there was no guarantee that the new model would remove all negative consequences. He referred to paragraph 46 of Mr Wilkinson's evidence, which recognised that the Council was proposing, as a consequence of the reduction in the budget, to cease providing certain 'targeted' services, and where he said 'The commissioning networks for each area where targeted sessions were ceasing have received additional Enabling Grant money thereby increasing the likelihood that similar work is commissioned in the future'. There was no guarantee of alternative providers for all services. Mr Wolfe said that the judge was, therefore, entitled to find as he did in paragraph 66 of his judgment (see paragraph 53 above); and he submitted that it followed that the judge was correct to find that the Council was exercising a function falling within section 507B(1) and that the section 507B(9) consultation obligation was therefore engaged.
- As between these rival arguments, we regard Mr Wolfe's as more consistent with the evidence and we consider that the judge was entitled, as he did in paragraph 66, to find that proposal CYPS-26 envisaged the prospect that it would result in the termination of some of the existing services.
- That said, there may be a different reason for questioning whether in promoting the budget reduction that carried the prospect of such consequences, section 507B(9) was engaged at all. On one view, it can be said that sub-section (9) is not framed as imposing an obligation upon a local authority to take steps to ascertain the views of 'qualifying young persons' before taking some particular step. What authorities are required to do is to ascertain their views on what activities and facilities should be available generally, and to take those views into account; in essence, the focus is on assessing demand. If that is properly done, it does not obviously follow that the views of 'qualifying young persons' have to be ascertained afresh on the occasion of every decision which may fall to be made from time to time, even a major one such as the closure of a youth centre. The authority will already know what 'qualifying young persons' think about the sub-section (9) matters, and will be in a position to take those views into account in making the decision in question. If that is right, Mr Hunt's challenge based on the Council's failure to consult about the proposed budgetary reduction faces a difficulty, since it is not suggested that the Council had never taken any steps to ascertain the views of 'qualifying young persons' as to the specified matters.
- The Council, however, argued no such point before the judge or this court, which may suggest that there is something wrong with it. No such point having been argued, we shall, therefore, proceed on the assumption (but expressly without deciding) that the judge was correct to hold that the Council had a section 507B(9) obligation to 'take steps to ascertain the views of qualifying young persons in [its] area' about its proposed budget reduction in relation to the provision of youth services. The next question is whether he was also correct to find that the Council properly discharged that obligation, which we shall, for short, call a 'consultation obligation'.
- Mr Wolfe submitted that there was no consultation of the required nature. On the evidence, there was no basis for the judge's conclusion that the Council had sought the views of 'qualifying young persons' at all. He emphasised that subsection (9)(a) identifies three heads of inquiry upon which the subsection requires a focussed consultation with such young persons. He referred us to the statutory guidance in relation to section 507B, which underlines the need for such a consultation. He referred us in particular to paragraphs 31 to 34:
- In paragraph 74, the judge had described 'all these measures, cumulatively, [as] properly to be categorised as taking steps to ascertain the views of qualifying young persons'. The measures the judge was there referring to were: (i) his perhaps somewhat generalised statement in paragraph 71 that there was wide consultation on the draft MTFP under which 'many persons and organisations were given the opportunity to raise issues of concern as they related to all aspects of youth services [and all] those persons or organisation would have included qualifying young persons and their representatives'; (ii) the delivery to all households of the October 2011 issue of the Council's magazine, which included in a table the proposed reductions in the youth services budget over the following four years; and (iii) the slide presentation meetings in September and November 2011 (paragraphs 22 and 24 above). Whilst the judge recognised that the literature produced for those meetings suggested that their purpose was to advise of 'proposals already formulated', he held that the meetings 'inevitably afforded an opportunity to those attending to voice concerns about reduction in expenditure on youth services'.
- Mr Wolfe submitted that the judge's conclusion in paragraph 74 was wrong. None of what the judge relied upon could be said to have amounted to the required consultation. Even the two meetings amounted to no more than an explanation of what was going to happen. If there was any feedback or other response to the explanations so provided, it was not in evidence. The judge was, submitted Mr Wolfe, also wrong in paragraph 77 to find that there was no evidential basis for a conclusion that the Council had not, in due compliance with subsection (9)(b), considered the information gathered as a result of the consultation that occurred. The problem with that was that there was no evidence that the Council considered anything in the way of such information, presumably because none was gathered.
- Mrs Oldham placed reliance on the same paragraphs of the Guidance as did Mr Wolfe. In addition to relying on the matters upon which the judge had relied in concluding that adequate consultation had been carried out, she referred us to other material. After drawing our attention to the reference in paragraph 33(c) of the Guidance to the point that local authorities 'will also want to ensure that they take account of views expressed by young people in any previous surveys and engagement exercises', Mrs Oldham referred us to a North Somerset Youth Service User Survey Report of June 2010, the relevant part of which recorded that on 16 February 2010 there had been a consultation with children and young people about available activities. The relevance of that consultation to a budget reduction that was proposed two years later, and to the risks that it represented as to the continuation of the existing services, was not apparent to us, nor was there any evidence that the Council had any regard to it when considering proposal CYPS-26.
- Mrs Oldham also relied on a report of 19 July 2011 to the Senior Leadership Team. In our view, that is not relevantly in point either. It also preceded the emergence of the budget proposal CYPS-26, its paragraph 2 urged the team to note the 'Next Steps' it was recommending, and those steps included 'collecting systematic, independent measurements of attendance at clubs, considered alongside children and young peoples' views of provision'. That is, in general terms, the sort of consultation exercise that needed to be carried out in relation to proposal CYPS-26, and the issue is whether it was. Mrs Oldham also referred to Mr Wilkinson's evidence that there had been meetings with members of the 'youth parliament', but his evidence did not also indicate that there had been consultation with such members about proposal CYPS-26 or as to what, if any, was the response to it.
- Whilst we have hesitated before differing from the judge on this issue, we have before us the same primary material that was before him; and, respectfully differing from the judge, we have concluded that there was no sufficient evidence entitling him to conclude that the Council had taken the steps required by section 507B(9) to ascertain the required views of qualifying young people about proposal CYPS-26. The general publication of the draft MTFP and the statements in North Somerset Life appear to us to take the consultation case nowhere. They may perhaps have brought proposal CYPS-26 to the attention of qualifying young people, but as they did not explain in concrete terms what the proposals amounted to, they cannot be regarded as having been directed at ascertaining the views of such people in relation to them.
- As for the meetings with management committees, there was no evidence that the committees included qualifying young people, or that any such people were present at them, or that, via the committees, the views of such people were sought as to the CYPS-26 proposal. Moreover, the slide shows appear, on the face of the evidence, to have amounted to no more than an explanation of what was going to happen: they were providing information as to what was, for practical purposes, a fait accompli. Neither the presentations nor any other evidence suggest that the Council was seeking anyone's views about the proposal, nor is there evidence that any such views were expressed. If these presentations had been regarded by the Council as, and had been, part of a real consultation exercise, it is inconceivable that there would not have been evidence as to what the response was.
- In sum, if any steps to obtain the views of qualifying young people about proposal CYPS-26 had been taken, there is no evidence as to what such views were, and no evidence that the Council had, before approving the relevant resolution, inquired as to what, if any, such views had been or, therefore, had taken them into account. In our view, it is far from clear that the Council considered it was under any obligation to conduct the sort of focussed consultation required by section 507(B)(9) in relation to proposal CYPS-26 – and of course its case before the judge and this court is that it was not.
- In our judgment, on the basis that the proposal CYPS-26 engaged the consultation obligations in section 507B(9), the Council did not discharge its obligations. We therefore differ from the judge's conclusion in that respect.
- As we indicated earlier, Mr Hunt was refused permission to argue that if (as the judge held) the Council members at the meeting of 21 February 2012 had considered the EIA relating to children's integrated services, such consideration was insufficient to equip them with the information necessary to enable them to discharge their PSED in relation to their approval of proposal CYPS-26. By contrast, the Council contended by its respondent's notice that, even if the Council members had considered only the summary of that EIA in Appendix 6 to the MTFP, that alone was sufficient to equip them with the information they needed in order properly to discharge the PSED.
- The judge found that the Council members had read the relevant EIA and that their consideration of it enabled them properly to discharge the PSED. He implicitly rejected the Council's contention to the effect that it would have been sufficient for this purpose if the Council members had merely read the summary of the EIA in Appendix 6. We were not persuaded by Mrs Oldham that, in that latter respect, this court could properly adopt any view different from that favoured by the judge. In particular, unlike the EIA itself, the summary did not identify that proposal CYPS-26 might have a differential impact on particular minorities within the class of young people generally. An awareness of a consideration such as that might be a material consideration in the exercise of the PSED: Council members might, for example, have been anxious to ensure that the proposal did not affect particular minority groups; and, to the extent that it appeared that there was a risk that it would, they might have wished to reconsider the terms of proposal CYPS-26.
- In our judgment, therefore, and since it was not open to Mr Hunt to challenge the adequacy of the EIAs themselves, the only remaining question on this aspect of the appeal is whether the judge was right to find, as we understand him to have done, that the Council members had all read the relevant EIA itself. If he was correct on that, there is nothing left in Mr Hunt's appeal on the PSED issue. Was he correct?
- The judge's process of reasoning to his conclusion was not, if we may respectfully say so, set out very concretely. It appears, however, to have been as follows: (i) whilst the papers sent to the members for the 21 February meeting did not include the EIAs, they informed the members how to access the EIAs; (ii) the decision the members were being asked to make was obviously an important one; (iii) absent evidence to the contrary, it was reasonable to assume that all members would have done all that they could reasonably do to inform themselves of the features relevant to the decisions they had to make; (iv) these features included the EIAs themselves; (v) Councillor Lake said in his evidence that he had read them and the judge said that he would expect all 'responsible councillors' to approach the meeting in the same way; (vi) therefore the members must all be taken to have read the EIAs; and (vii) this conclusion was reinforced by the consideration that the members would, before the meeting, have received and understood Ms Thornton's written submission in which she emphasised the importance of the PSED as well as asserting that for that purpose the EIAs contained insufficient information.
- The judge's finding of fact as to the members' consideration of the EIAs themselves was a secondary finding based on primary evidence of an exclusively written nature. We have before us the same material as he did. In principle, therefore, whilst this court will ordinarily respect the inference that he drew from the material before him, it is open to it, if satisfied that that inference was wrong, to take a different view.
- For our part, and again with respect, we are unable to agree with the judge that the inference that he drew was one that was available on the evidence. We have no difficulty, nor was the contrary suggested, in accepting 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 and to which they were told they needed to have regard for the purposes of the meeting. If, for example, they had been told that a key document was too bulky and expensive to copy and circulate, but was available at a given website address, and they were further told in appropriate terms that this document was required reading for the purposes of the meeting, we consider that they must be taken to have accessed and read it.
- In the present case, however, we do not interpret the language of Appendix 6 as indicating to the Council members 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 fact that they were summarised in Appendix 6 itself suggests that a reference to the documents themselves was not essential: why bother to summarise a document which must anyway be read in full? Moreover, the terms of paragraph 12 of the officers' report to members (see paragraph 46 above) also suggested that Appendix 6 told the Council members all they needed to know for PSED purposes.
- If there were no more, we would not therefore be prepared to conclude that the members had read the relevant EIA. There was, however, a little more. First, Councillor Lake had read the EIAs in full before the meeting, and the judge concluded, therefore, that so also had 'all responsible councillors'. We are not sure what the word 'responsible' was thought to add: we presume the judge simply meant 'all councillors'. We do not, however, regard Councillor Lake's evidence about what he did as providing any indication as to what all the other councillors did or were likely to have done. Councillor Lake was in the special position that his portfolio of responsibilities included the Council's approach to equality related issues, and he explained in his evidence that he had received training in relation to decision making in compliance with PSED. It is, therefore, if we may say so, fairly obvious that he would have read the EIAs, and it would have been surprising if he had not. The range of his responsibilities shows why he would have had a special interest in them. The same cannot, however, be said of the Council members generally.
- The second matter is the input from Ms Thornton, in particular her written submission sent to members before the meeting. She was, however, an objector to the proposal. We can well see that a consideration of her submission might have provoked some members into looking at the EIAs. Where we respectfully part company with the judge is that we cannot see that it is legitimate to regard the receipt of a submission such as that from Ms Thornton as raising a presumption that all the Council members would have done so. That is a presumption that has no sufficient justification. As for what Ms Thornton said at the meeting, that might have caused members to consider that a reading of the EIAs would be of value. But for those who by then had not already done so, it was too late. The resolution was passed on the same day.
- We therefore also differ from the judge in his finding that the PSED was discharged.
- We come to the question of relief, which in the light of our conclusions on the two issues we have discussed is now a live question. Mrs Oldham urged that even if the court were to come to the conclusion that we have, no relief should be granted to Mr Hunt. That is because, first, he delayed in issuing his claim; and, second, because the court ought not to exercise its discretion to quash a decision that was implemented during the financial year 2012/13, which is now long expired.
- So far as delay is concerned, Mr Hunt's pre-action protocol letter was written on 15 March 2012. It sought undertakings from the Council whose effect would have required it to disapply the relevant budget cut and (in effect) to re-consider the proposed cut after first having carried out a section 507(B)(9) consultation exercise and a more substantial EIA. The undertaking was refused and the proceedings were started on 12 April 2012, by which time Council Tax demands for the year 2012/13 had been sent out and staff had been made redundant in consequence of the budget reduction. The re-modelling of the youth service as envisaged by proposal CYPS-26 was, it is said, carried out during the financial year 2012/13. These matters were explained in Mr Wilkinson's evidence, where he said:
- Mr Wilkinson made his witness statement to that effect on 2 June 2012. The hearing before the judge was on 13 June 2012 and his judgment was delivered on 18 July 2012. Permission to appeal to this court was not given until 15 January 2013 and the hearing before us was on 13 June 2013. Mrs Oldham submitted that this is not a case in which any quashing order or declaration ought to be granted to Mr Hunt. In particular, the making of a quashing order at this stage would be highly impractical and detrimental to good administration.
- Mr Wolfe argued the contrary. He said that there was nothing in the point about the delay in bringing the judicial review claim, for which Mr Hunt had obtained permission. Nor, he said, was there in fact any delay. Nor can it be said the alleged detriment to good administration is an answer to Mr Hunt's right to relief. It is the court's duty to uphold the law and the appropriate public law consequence of Mr Hunt's success on the two points of principle that have been argued is that the court should make a quashing order.
- Mr Wolfe is no doubt right that in theory a quashing order could follow, but we are far from convinced that it should. What is being sought is the quashing of a decision to reduce part of the Council's revenue budget in relation to its youth services provision for a financial year that, at the date of the hearing of the appeal, had expired nearly three months before. For ourselves, we cannot see how that decision can be quashed without also quashing the Council's decision to approve the entire revenue budget for 2012/2013, of which it formed part. To make an order of that nature in relation to a year that has now expired, and in respect of which Council Tax has been demanded and levied, would be to make a drastic order.
- Even, however, if the quashing order might be confined to the youth services element of the budget, the logic of such an order, if made, is presumably that the Council must re-take the decision as to the proposed budget reduction, having first carried out an appropriate consultation and also having had fresh due regard for the PSED. To re-take the decision the Council must, therefore, presumably wind itself back in time to a world that no longer is and then consult appropriately, and consider the equality impact, about proposed changes which have in the meantime, at least in part, already been carried out. If the outcome were to be, for example, that the proposed budget reduction should not be made, the Council might then be faced with a question as to the raising of finance for the expired year 2012/13, whereas there can now be no question of raising any Council tax to that end.
- Any suggestion that the Council should go through such an artificial process appears to us to be close to absurd. It is now too late to unwind what has been done. Mr Wilkinson makes telling points in the passage from his witness statement that we have quoted as to why this is not a case in which the clock can now be turned back and we accept their force. Judicial review is a discretionary remedy and, even though we have accepted the substantive points that Mr Hunt has advanced, we are of the firm view that he ought not to be granted the quashing order for which he asks. To do so would be detrimental to good administration.
- We refuse to grant any relief to Mr Hunt and therefore dismiss his appeal.
Lord Justice Rimer :
Introduction
(a) The Education Act 1996
'507B Local authorities
(1) A local authority in England must, so far as reasonably practicable, secure for qualifying young persons in the authority's area access to –
(a) sufficient educational leisure-time activities which are for the improvement of their well-being, and sufficient facilities for such activities; and
(b) sufficient recreational leisure-time activities which are for the improvement of their well-being, and sufficient facilities for such activities.
(2) "Qualifying young persons", for the purposes of this section, are –
(a) persons who have attained the age of 13 but not the age of 20; and
(b) persons who have attained the age of 20 but not the age of 25 and have a learning difficulty …
(3) For the purposes of subsection (1)(a) –
(a) "sufficient educational leisure-time activities" which are for the improvement of the well-being of qualifying young persons in the authority's area must include sufficient educational leisure-time activities which are for the improvement of their personal and social development, and
(b) "sufficient facilities for such activities" must include sufficient facilities for educational leisure-time activities which are for the improvement of the personal and social development of qualifying young persons in the authority's area.
(4) References in the remaining provisions of this section to "positive leisure-time activities" are references to any activities falling with paragraph (a) or (b) of subsection (1).
(5) For the purposes of subsection (1) a local authority may –
(a) provide facilities for positive leisure-time activities;
(b) assist others in the provision of such facilities;
(c) make arrangements for facilitating access for qualifying young persons to such facilities;
(d) organise positive leisure-time activities;
(e) assist others in the organisation of such activities;
(f) make arrangements for facilitating access for qualifying young persons to such activities;
(g) enter into arrangements or make arrangements with any person in connection with anything done or proposed to be done under any of paragraphs (a) to (f);
(h) take any other action which the authority think appropriate.
(6) For the purposes of subsection (5) –
(a) the provision mentioned in paragraph (a) may include establishing, maintaining and managing places at which facilities for positive leisure-time activities are provided;
(b) the assistance mentioned in paragraph (b) and (e) may include the provision of financial assistance;
(c) the arrangements mentioned in paragraphs (c) and (f) may include the provision of transport, of financial assistance or of information to any person.
(7) Before taking any action for the purposes of subsection (1) ("the proposed action"), a local authority must –
(a) consider whether it is expedient for the proposed action to be taken by another person, and
(b) where the authority consider that it is so expedient, take all reasonable steps to enter into an agreement or make arrangements with such a person for that purpose.
(8) For the purposes of subsection (7)(a) a local authority must consult such persons as the authority think appropriate as to whether it is expedient for the proposed action to be taken by another person.
(9) In exercising their functions under this section a local authority must –
(a) take steps to ascertain the views of qualifying young persons in the authority's area about –
(i) positive leisure-time activities, and facilities for such activities, in the authority's area;
(ii) the need for any additional such activities and facilities; and
(iii) access to such activities and facilities; and
(b) secure that the views of qualifying young persons in the authority's area are taken into account …
(12) In exercising their functions under this section a local authority must have regard to any guidance given from time to time by the Secretary of State.
(13) In this section –
"recreation" includes physical training (and "recreational" is to be construed accordingly);
"sufficient", in relation to activities or facilities, means sufficient having regard to quantity;
"well-being", in relation to a person means his well-being so far as relating to –
(a) physical and mental health and emotional well-being;
(b) protection from harm and neglect;
(c) education, training and recreation;
(d) the contribution made by him to society;
(e) social and economic well-being.'
(b) The Equality Act 2010
'149 Public sector equality duty
'(1) A public authority must, in the exercise of its functions, have due regard to the need to –
(a) eliminate discrimination, harassment, victimisation and any other conduct that is prohibited by or under this Act;
(b) advance equality of opportunity between persons who share a relevant protected characteristic and persons who do not share it;
(c) foster good relations between persons who share a relevant protected characteristic and persons who do not share it …
(3) Having due regard to the need to advance equality of opportunity between persons who share a relevant protected characteristic and persons who do not share it involves having due regard, in particular, to the need to --
(a) remove or minimise disadvantages suffered by persons who share a relevant protected characteristic that are connected to that characteristic;
(b) take steps to meet the needs of persons who share a relevant protected characteristic that are different from the needs of persons who do not share it;
(c) encourage persons who share a relevant protected characteristic to participate in public life or in any other activity in which participation by such persons is disproportionately low.
(4) The steps involved in meeting the needs of disabled persons that are different from the needs of persons who are not disabled include, in particular, steps to take account of disabled persons' disabilities.
(5) Having due regard to the need to foster good relations between persons who share a relevant protected characteristic and persons who do not share it involves having due regard, in particular, to the need to –
(a) tackle prejudice, and
(b promote understanding.
(6) Compliance with the duties in this section may involve treating some persons more favourably than others; but that is not to be taken as permitting conduct that would otherwise be prohibited by or under this Act.
(7) The relevant protected characteristics are:
(a) age;
(b) disability;
(c) gender reassignment;
(d) pregnancy and maternity;
(e) race;
(f) religion or belief;
(g) sex;
(h) sexual orientation ….'
The facts
'… recognised the proposed changes to the youth service would have a negative impact … we concluded that this impact would be less damaging for children and young people, especially the most vulnerable, than reducing budgets further. We also concluded that through enabling others to provide positive activities, and retaining some capacity to provide targeted work, the impact of the reductions could be substantially mitigated.'
August to November 2011
'Review youth service provision through promoting non-NSC [Council] funded positive activities, supporting the transfer of responsibility to town/parish councils and community groups or closing youth centres as a last resort (this will ensure that targeted youth support will continue for the most vulnerable).'
It is the proposed budget reduction of £364,793 in 2012/13 that was destined to be the subject of Mr Hunt's challenge. Appendix 6 to the MTFP included a summary of the EIAs that had been produced in January 2011 and updated in June 2011 in relation to all proposed cuts.
'The Senior Leadership Team have agreed this week to:
• Allocate a small amount of funding to support the transition to new models of delivery
• Confirm that they wish to see innovation and sustainable new approaches to delivery and support this with further funding for 2012/12 [sic] only
• Welcome the plan to create a charitable organisation to offer professional open access youth work – alongside a growing range of diverse service providers that commissioning groups may wish to engage
• End direct provision of youth clubs by LA from March 2012'
And another slide said:
'• Precise criteria for the operation of the funds will now be worked up – we will get back to you regarding this asap
• Your views tonight and our direct working with you will inform the criteria and ensure they are proportionate
• Support is designed to enable a community-based, grass roots identification of local needs and opportunities'
The Council resolution of 15 November 2011
'19. … one of the EIAs was concerned solely with the impact of the budget reduction proposals which related to the provision of services to children and young persons. This EIA was entitled "Initial Equalities Impact Assessment. Service Area: Integrated Children's Services" (see D/5/431). Part of that EIA was in tabular form. Under the reference CYPS 26 there was an explanation of the proposed changes to youth service provision (identical to that quoted [in paragraph 20 above]) together with the figures for the budget reduction also set out in the draft MTFP. In an additional column headed "Service User Impact" the impact of the proposal was described as high.
20. It is common ground that the members of the [Council] were not provided with this EIA in advance of the meeting of 15 November 2011. Rather, the draft MTFP contained appendix 6 which was a summary of all the EIAs which had been produced to this point. The summary consisted of four pages. Members were informed within the summary how they could access all the actual assessments. The summary made specific reference to CYPS-26. The remodelling of youth service provision was described as a high impact area and proposals to mitigate the impact were described as follows:
"Workshops and consultations with the aim of supporting and enabling the local community to continue to deliver services through a partnership model.
Ongoing targeted youth work to support the most vulnerable young people in the community".'
The January 2012 EIA in relation to proposal CYPS-26
'The proposal is to reduce the budget by 75% from the original £1.1 million and [the Council] will no longer deliver universal youth services within the community. This will mean the loss of Council provided universal provision across 15 youth centres. The Youth Service currently provides 72 sessions (182.75 hours) per week to approx 2,000 young people across North Somerset. The last National Youth Agency Audit of Youth Services in England indicated that the number of young people in contact with NSC Youth Service in 2007/8 was 4,163. The reduction in the numbers reflects the move to targeted work that has taken place since 2008.
The reduction will exclude young people from accessing early intervention and prevention from services delivered by the Council and dependent on which targeted group work is retained may result in the loss of single gender work, work with girls and young women, work with Gay, Bisexual, Lesbian young people, loss of work with young people with additional needs, and will exclude and impact on any young person seeking out access to a youth worker which will include those young people who are disadvantaged due to race, sexuality, gender and disability.
Young people in rural areas may be disadvantaged due to lack of public transport if local partnerships do not take on this service delivery within their own communities. There may be resulting social isolation and lack of access to information, advice and guidance beyond school and Connexions provision.
Future provision will depend on whether local partnership groups are able to deliver this work although they will receive support from the Council to develop new models of service provision (see Section 4 below).'
'Targeted Youth Support Provision, with a budget of £250K will focus on one to one case work with those young people identified as being part of the 300 most vulnerable families. There is a risk of loss of universal provision within areas of high economic social deprivation where communities may not be able or willing to develop alternative models of delivery. Young people accessing this provision are from disadvantaged backgrounds in Weston Youth Centre, Weston Town Centre, Banwell Youth Centre, Congresbury Youth Club, Clevedon Youth Provision, Castlebatch Youth Club, Worle Youth Provision.'
There followed detailed provisions about children in need, by reference to age and gender, ethnicity and disability.
'The Senior Leadership Team commissioned a piece of work to develop the approach to actively engaging children, young people, their parents and other service users in the Transformation Programme. A group was brought together including service users, colleagues from all branches of the CYPS, the voluntary sector and the PCT. The group has concluded that it will [be] very difficult to conduct meaningful consultation about the whole programme and therefore rather recommends that engagement is undertaken at a project level.
Discussions with the voluntary sector are ongoing and commenced at the stage that year 1 reductions were being negotiated. The providers of services that are being commissioned are aware of the process and entitled to submit a tender if they choose.
Plans regarding remodelling and proposals that impact on disabled children have been discussed with the parents' forum, Our Voice Counts.
Children centres' partnership groups are considering the budget reductions and impact on services for young children during the consultation period. Parents are represented on these groups.
Action for Children, the provider of the residential and home-based overnight short breaks services have regular parent meetings and involve the Council where appropriate to ensure good communication between all three parties.
Consultation with staff has taken place with managers and all staff from 18th August 2011 onwards in relation to the impact on their jobs. 3 sessions have now taken place with unions and HR involved and staff are being encouraged to feed back individually and as teams. These responses are being reviewed by the senior leadership team.
Initial consultation has taken place with schools and follow-ups are taking place this term.
Management committees, town and parish councils, local communities (including young people) and representatives from the faith and voluntary sectors have had/will have a range of workshops delivered this autumn to gain views and support the development of the new model of youth work delivery.
The results and outcomes following consultation with staff and specific groups will be communicated in due course.'
'Workshops and consultation sessions will continue to take place across North Somerset with the aim of supporting and enabling local communities to continue to deliver services via a partnership model, supported by commissioners within the Council.
It is proposed to continue delivering targeted work to support the more vulnerable young people within our communities via 6.5 Young People's Support Worker Posts.'
'The directorate is working with staff and providers to minimise the impact on frontline services but there will inevitably be an impact on service users. We need to explain the reasons for the budget reductions, identify the process for consultation and to involve all stakeholders in supporting the re-commissioning and redesign of services.
We will continue to work in partnership with parents of disabled children via the Parent Forum and provider groups.
It is hoped that schools will be delivering some services which were previously delivered.
The key messages are:
• Services will be remodelled with a focus on front-line delivery to the most vulnerable (targeted services); such support will be consistent and high quality.
• There will be a freeing up of practitioner time through a reduction in the time spent dealing with the bureaucracy that has built up in recent years: this will increase the amount of time spent in direct contact with families and could increase the number of families we will be able to work with in the future.
• There will be a reduction in the direct provision of some preventative services but we are seeking to work with communities and other organisations to stimulate provision of different types of provision to meet needs.
Youth Provision Budget
• Initial consultation with councillors, staff and management committees took place in October and November. A plan is being developed which will outline the timescales and process for further consultation, particularly with young people who access youth provision.
• Key messages are that local communities and management committees will be supported and encouraged to develop and manage universal provision. …'
Further meetings prior to that of 21 February 2012
'Workshops and consultation with the aim of supporting and enabling the local community to continue to deliver services through a partnership model.
Ongoing targeted youth work to support the most vulnerable young people in the community.'
'Young People's Support Workers (YPSW) have been created to work with the young people in greatest need. The Community Family Service (CFT) will work closely with other agencies including the Police and the Youth Offending Service to address need and ensure services are coordinated.
Support will be targeted on the most vulnerable families but will include a level of early intervention work also. Needs analysis has been completed. The YPSWs will work as part of 3 CFTs and work distributed accordingly.
Colleagues from CYPS are working with local networks to commission positive activities according to the needs of young people. They will be working with local groups to ensure emerging needs are met.'
'The trade unions have been consulted over the development of the EIAs and are particularly concerned over the proposals which impact on Children's Integrated Services. Where appropriate the Children's Integrated Services EIA has been amended to reflect trade union comments.'
The Full Council meeting of 21 February 2012
'All major proposals have been considered for any equality implications and a summary of this process and its outcome, together with any specific implications are reported within Appendix 6.'
The sense of that can be read as meaning that the members did not need to look beyond Appendix 6 in order to understand the equality implications.
'… expressed concern that the Council had not had proper regard to the equalities impact of the cuts particularly on young people, the disabled and the elderly. She added that time must be allowed for equality impact assessments to take place.'
'Appendix 6 of the budget papers provides a summary of the equality impact assessments (EIA). But it is our view that this does not contain enough detail for the councillors to make informed judgements about whether their current budget proposals will enable the council to meet their equality duties, and that councillors really should have read all equality impact assessments in full before making their decision on the budget.
You will be aware that the new public sector equalities duties mean that public sector employees must give "due regard" to the need to:
i) Eliminate unlawful discrimination, harassment and victimisation
ii) Advance equality of opportunity between people who share a protected characteristic from those who do not.'
Ms Thornton quoted from section 149(7) of the Equality Act, and dealt specifically with CYPS-26, writing:
'The full equality impact assessment makes clear that the cessation of universal provision will have high impacts on girls and young women, LGBT young people, young people with additional needs, young people from BME groups, young people with disabilities and young people living in rural areas. Your mitigating actions involve other organisations providing youth services, but you also note that many young people accessing youth provision are from the most deprived areas of North Somerset, and may not be able to take these services on, but you say nothing about what you will do if this turns out to be the case. The EIA mentions in particular youth services in Weston South and Central Wards, Banwell, Congresbury, Clevedon, Castlebatch and Worle where this may be the case. In addition councillors may want to consider that higher proportions of BME children live in Weston central ward. Councillors need to ask for an update on which parish councils and other organisations are going to take on which elements of the youth service from 1st April 2012 in order to assess where cutting youth services will mean you are actively discriminating against particular groups of young people. It is also our view that new look "youth services" will not be sustainable. Your EIA does not make clear who precisely will receive the targeted youth support that will remain, and again what is the equalities impact of this? There has also been no consultation with young people on the removal of their youth services.' [The bold passage is as in the original.]
'(1) That the Revenue Budget for 2012/13, including special expenses, be approved; and
(2) That the Council utilise the Council Tax Freeze Grant and freezes the average Band D Council Tax charge in respect of North Somerset Council services for £2012/13 at £1,146.40, plus special expenses charges, where such charges apply, giving an overall average charge of £1,150.59;
(3) That the final directorate budget position as set out in the body of the report be noted.'
'17. I can confirm that I was aware of the potential impacts of the proposals relating to youth services to diverse groups and users and the wider public generally. My awareness arose from a number of sources including the [EIAs] which I had read in full and addresses made at Council meetings by members of the public including users and by the trade union representatives.'
The judge's judgment
'66. … proposal CYPS-26 also envisaged that as a measure of last resort youth centres would be closed. By approving that measure, albeit as a measure of last resort, it seems to me to follow that [the Council] was exercising a function under section 507B …, namely a function falling within section 507B(1). In effect, it was making a decision which had a direct impact, at least potentially, upon the sufficiency of positive leisure-time activities and facilities for qualifying young persons.'
'77. There is no evidential basis upon which it would be proper to conclude that the information which was provided to the [Council] as a consequence of such consultation as occurred was not considered in the decision-making process leading to the approval of the Revenue Budget. There is certainly no evidence before me which suggests that qualifying young persons responded to the [Council's] budget proposals yet those responses were ignored. Further, there is no proper basis upon which it would be reasonable to draw an inference to that effect.
78. Accordingly, I have reached the conclusion that a breach of the duties specified in section 507B(9) of the 1996 Act is not made out.'
'90. Let me take stock at this stage. The members had been provided with or had access to all the documentation which officers had produced which considered the relationship between [the PSED] and the proposed expenditure cuts. In my judgment, it is reasonable to infer that the members familiarised themselves with all the information contained within the documents which they were sent and to which they had access. I say that for this reason. The decision whether or not to approve the Revenue Budget was, obviously, a very important one. In the absence of any evidence to the contrary it is proper to infer that the persons taking that decision would do all that they reasonably could to inform themselves of all the features which were relevant to the decision to be made. Councillor Lake says in terms that he did and I would expect that all responsible councillors would approach the meeting on 21 February in just the same way.
91. That conclusion is reinforced by the fact that Ms Thornton, in her submission, asked the members to read the EIAs and drew their attention not just to the duty to have due regard to the [PSED] and the content of those duties and but [sic] also her claim that the EIAs did not contain sufficient information for the members to make an informed decision about the budget proposals.
92. I have reached the conclusion, on balance of probabilities, that the members familiarised themselves with all the information provided to them by the [Council's] officers in advance of the meeting on 21 February. Further, they had received and understood Ms Thornton's submission and the alternative budget proposals submitted to them.
93. At the meeting on 21 February Ms Thornton gave voice to the concerns that she had expressed in her written submissions. She told members that the [Council] had not had proper regard to the equalities impact of the cuts particularly on young people …. The first amendment proposed in relation to the Revenue Budget related to the proposals for children and young people. The amendment was that the budget should be increased by £350,000 thereby nullifying the effect of CYPS-26. The amendment was debated and it is reasonable to infer that the debate included discussion of young people who had protected characteristics.
94. In the light of all the information provided in advance of the meeting and in the light of what occurred at the meeting I am persuaded that the members must have considered a good many issues which related to the [PSED] before reaching a conclusion about the Revenue Budget. In my judgment, therefore, it would be proper to conclude that the members failed to have due regard to the [PSED] only if it can be demonstrated that there was such an insufficiency of information before them as to make it proper to conclude that they could not have complied with their statutory duty despite their attempt to do so.'
'97. … it is as well to have in mind the words of Pill LJ and Davis LJ in R (Bailey) v. LB Brent [2011] EWCA Civ 586. They are set out under paragraphs (xiii) and (xiv) in the judgment of Wilkie J in [R (Williams and Dorrington) v. Surrey County Council [2012] EWHC 867 (QB)] set out at paragraph 55 above. I summarise by saying that the duty to have due regard under section 149 can have no fixed content; what observance of the duty requires of decision-makers is fact sensitive and varies considerably from situation to situation; councils cannot be expected to speculate, or investigate the potential impact of a decision upon [PSED] in a manner befitting a lawyer engaged in a forensic analysis in court.
98. If that approach is applied, I am persuaded that Mrs Oldham is correct when she submits that there is no substance in the criticisms of the EIA advanced on behalf of [Mr Hunt]. She acknowledges that the EIA did not set [out] each of the protected characteristics identified in section 149 …. She says that was and is unnecessary. She submits that the duty to have due regard does not require that every protected characteristic must be considered with the impact upon it, if any, identified and analysed come what may. That she submits would be an unnecessary and unduly formulaic approach. In the instant case the EIA identified those budget proposals which had a high impact on service users; it dealt explicitly and in detail with the impact of the reduction in the youth service budget; it referred explicitly to impact upon a number of the protected characteristics itemised in section 149(7) …; it set out the information upon which it based its conclusions and it set out the steps to be taken to minimise or mitigate that impact.
99. I have reached the conclusion that the members were provided with sufficient information so as to enable them to comply with their statutory duty under section 149 … In reaching that view I am conscious that Ms Thornton's submission and address to the members suggested otherwise. I have scrutinised her submission with care. It does not seem to me, however, that it demonstrated that the EIA was incapable of informing members sufficiently upon the [Council's] [PSED] especially given that the members must have had a wealth of relevant local knowledge to supplement the written information provided to them.'
The appeal
(a) Did proposal CYPS-26 engage the section 507B(9) consultation obligation?
(b) Did the Council discharge its section 507B(9) consultation obligation?
'31. The local authority will also need to ensure that young people are involved in determining what activities and facilities should be available to them. In particular, local authorities should ensure they ascertain and take into account the views of young people who face significant barriers to participation or are considered to be at risk of poor outcomes such as young people in care; young people from minority groups; and young people with disabilities.
32. The legislation specifies that the local authority must ascertain and take account of young people's views on current provisions, the need for new activities and facilities, and barriers to access. As well as dedicated youth provision, the local authority should seek young people's views on leisure centres, libraries and any other activities and facilities which are intended to be accessible to young people and/or the wider community. Local authorities should also consider engaging parents, carers and families in the discussion, as their support and influence will play a crucial part in securing young people's participation.
33. Local authorities have considerable flexibility about how they ascertain the views of young people under section 507B. Approaches could include:
a. Consultation; to ensure consultation is meaningful, local authorities will need to provide young people with information about the consultation process and how they can take part. They should also ensure that young people are aware of what support is available to help them participate in the consultation.
b. Local authorities can benefit from drawing on the good practice established by authorities with Beacon status in engaging young people and should also note that young people themselves can play a valuable role in guiding and shaping consultation.
c. Surveys and qualitative research: local authorities should ensure that surveys and research are robust enough to explore the views, needs and preferences of less engaged young people from all sections of the community. Local authorities will also want to ensure that they take account of views expressed by young people in any previous surveys and engagement exercises by the local authority, partners and others.
d. Provider information and attendance figures: these may offer valuable information on what activities young people use; the levels of demand for services; and, depending on the quality of data, which activities have been most successful in increasing participation of disadvantaged young people. The greater the number of providers consulted, the more robust the data. So local authorities should try, where practicable, to draw on data from public, private and voluntary providers.
e. Engaging directly with young people – for example using existing and new neighbourhood renewal interventions, such as neighbourhood managers and wardens, as part of a strategy to engage and ascertain the views of young people living in the most disadvantaged communities.
34. Whatever the approach, the local authority should feed back the consultation findings to young people, along with its responses to their views on and desires for the local offer.'
(c) Did the Council discharge the PSED?
Relief
'50. The changes which have been introduced would now be extremely difficult, if not impossible to reverse. At least 58 staff (full time equivalent 22.1 posts) have been made redundant and it is hard to see how the service could return to the previous situation. The management structure has been completely revised and staff have [been] appointed to new roles. Any changes to the structure would be difficult and would bring additional cost not budgeted for.
51. The success of the new commissioning networks could also be jeopardised if the council's decision were set aside. It would for instance be difficult to see how they could secure funding from charitable trusts were the model to have been thrown into doubt. The commissioning networks have entered into commitments to staff, venues and other organisations and are engaging young people in planning the future. The result of reversing decisions might be to prejudice current provision.'