England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE ADMINISTRATIVE COURT
QUEEN'S BENCH DIVISION
CARDIFF CIVIL JUSTICE CENTRE
(MR JUSTICE WILLIAMS)

		Royal Courts of Justice Strand, London, WC2A 2LL
		15th January 2013

Lord Justice Toulson:

1. Mr David Wolfe QC on behalf of the appellant seeks permission to appeal on two grounds. Ground 1 involves a mixed question of law and fact on Section 507 of the Education Act 1996. The claimant is aged 21 and has learning difficulties; he is therefore a qualifying person within the definition of that term in the Section. He argues that the consultation undertaken by the Council before reaching its decision on 21 February 2012 to cut its youth service budget by over £350,000 for the year 2012/13 failed to comply with its statutory requirements. The Council relied firstly on a wide general consultation process with the public which demographically would have included qualifying persons and, secondly, on two meetings with management committees of a number of youth clubs or other youth entities.
2. The judge considered that cumulatively this amounted to the taking of steps which satisfied the council's statutory duty. Mr Wolfe submits that the general consultation process was not good enough because it was not aimed at young people or, more particularly, young people with disabilities, and that the whole point of Section 507 was to require the respondent to take particular steps to ascertain the views of qualifying people and to factor them into their considerations.
3. He says that the second form of consultation was not good enough because it was not aimed at ascertaining young people's views about the services needed for the purpose of deciding whether the axe should fall on the youth services' budget or fall to the extent proposed; rather its essential purpose was to explain that the axe was going to fall on the budget and to discuss ways of ameliorating the consequences.
4. All I have to decide at this stage is whether there is enough in the claimant's argument and the importance of the issue to merit giving permission to appeal; and, taking those two factors together, I consider that I should give leave. I should mention that Mr Wolfe argues a further point in relation to the consultation with the management committees that it was not good enough because they were merely speaking as management committees; it was necessary for the consultation to go, so to speak, to the horse's mouth of the young people concerned. As a freestanding point I am not impressed by that, but as part of the general argument he is entitled to advance it.
5. Ground 2 concerns Section 149 of the Equality Act, and it may also be said to involve a mixed question of fact. My first impression on considering this matter was that it was very much a question of fact, that it did not truly turn on any question of principle. The judge set out in considerable detail the events leading to the Council's decision. His critical findings are at paragraphs 94 and 99 to 100. My initial reaction was that, taking all those matters into account, and in particular the revised appendix 6 to the MTFP (ie Medium Term Financial Plan), which went not only to the executive committee but to all members of the Council, and the evidence of what happened at the council meeting, including the debate on the motion not to cut the Young Persons Services budget, there was no real prospect of the claimant persuading the court that the judge was wrong to find as he did.
6. I am to a degree troubled by a point made by Mr Wolfe in argument that a part of the process of the judge's reasoning was that all members of the full council could be taken, absent evidence to the contrary, to have downloaded and read the EIA's referred to in the papers which were placed before them. Mr Wolfe directs his criticism here to paragraph 90 of the judgment, where the judge said that it was "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". The important words are the last few words. He continued:

"In the absence of any evidence to the contrary it is proper to infer that the persons taking that decision would do all they reasonably could to inform themselves of all the features which were relevant to the decision to be made",

which therefore includes the documents to which they had access, ie the EIAs because they were downloadable, and he continued:

"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."

7. I have therefore looked at Councillor Lake's statement. He does say that he encouraged members to read the relevant EIAs, but the members he encouraged were those at the executive committee. It does not appear from his evidence that any such encouragement was given to all the membership. He says in his statement about those EIAs:

"Those Equality Impact Assessments in my view directed members to the relevant issues."

8. That may be two-edged, because it can be argued against the council that since EIAs directed members to the relevant issues the full body of members ought to have been taken to them, and that in the real world when members are having to prepare for debate with a large number of papers it cannot be inferred that they will all have gone off and downloaded the relevenat documents.
9. True it is that reference was made to that EIA by Ms Thornton addressing the council in opposition to the proposal, but again in the real world it might be thought that there may be a rather different impact between something which is put forward as part of an officer's report to members that they ought to consider, and which they would therefore have an opportunity to reflect about in advance if they had done their homework properly, and something which is referred to in argument by an objector.
10. I regard the point ultimately as a borderline one, but because I am giving leave on ground 1 I will give leave to argue this point; it is the point taken in paragraph 4 of the grounds of appeal. It is in itself a fairly narrow discreete point, ie whether the judge erred in his approach to that part of the evidence. I do not give leave to advance a more far-reaching challenge to the adequacy of the EIAs. The point on which I am giving permission under ground 2 is whether the judge erred in the inference which he drew as to the material which councillors took into account. It may well be that even without that inference the full court on considering the matter will conclude that there was enough in appendix 6 to the MTFP and all the other material to support the judge's finding. But that will be a matter for the full court. On the threshold question whether leave should be given, I will give leave on that narrow point.
11. I will direct that the appeal be heard before a court of three judges, which may include one High Court judge, and direct a time estimate of four hours.

Order: Allowed in part