QUEEN'S BENCH DIVISION
SITTING AT CARDIFF CIVIL JUSTICE CENTRE
B e f o r e :
| AARON HUNT
- and -
|NORTH SOMERSET COUNCIL
Jane Oldham (instructed by Legal Services Department) for the Defendant
Hearing date: 13 June 2012
Written representations received 18 June 2012
Crown Copyright ©
Mr Justice Wyn Williams:
"That the following recommendations of the Executive be approved
(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 £1146.40, plus special expenses charges, where such charges apply, giving an overall average charge of £1150.59;
(3) That the final directorate budget position as set out in the body of the report be noted."
Relevant factual history
"In deciding which proposals to develop and put forward to elected members for ultimate decision, the Senior Leadership Team had to consider and weigh a range of factors. We recognised the proposed changes to the youth service would have a negative impact, however, we concluded that this impact would be less damaging for children and young people, especially the most vulnerable, than reducing other budgets further. We also concluded that through enabling others to provided positive activities, and retaining some capacity to provide targeted work, the impact of the reductions could be substantially mitigated."
"Review youth service provision through promoting non-NSC funded positive activities, supporting transfer of responsibility to towns/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)"
In different columns of the table in which that description appeared the proposed budget reductions were set out; the table showed that in the year 2011/12 there was a proposed budget reduction of £190,000 and that the proposed reductions for the years 2012/13 and 2013/14 were £364,793 and £260,566 respectively.
"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 proposal is to reduce the budget by 75% from the original £1.1 million and North Somerset 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 approximately 2000 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 4163. 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, Bi-Sexual, Lesbian young people, loss of work with young people with additional needs, and will exclude an impact on any young person seeking out access to a youth worker which would 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 would 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 on one casework 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 Western Youth Centre, Western Town Centre, Banwell Youth Centre, Congresbury Youth Club, Clevedon Youth Provision, Castlebach Youth Club, Worle Youth Provision."
There followed detailed information about children in need. The EIA considered, in terms, children in need by virtue of "age and gender", ethnicity" and "disability".
"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 more vulnerable people within our communities via 6.5 Young Peoples Support Worker Posts."
"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 CYPS, the voluntary sector and the PCT. The group has concluded that it will be very difficult to conduct meaningful consultations about the whole programme and therefore rather recommends that engagement is undertaken at a project level.
Management committees, town and parish councils, local communities (including young people) and representatives from the faith and voluntary sectors have/will have a range of workshops delivered this autumn to gain views and support the development of a new model of youth work delivery.
The results and outcomes following consultation with staff and specific groups will be communicated in due course."
The section went on to record that the union Unite had made a specific complaint of insufficient consultation with young people. The author of the EIA responded by asserting that:-
"The pace of change has made it very difficult to fully consult. There has been consultation with Parish Councils and further consultation about how the new model will be implemented will take place.
All youth service staff received a copy of the consultation document."
Section 5 set out "key messages". They were:
• "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 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."
This section also contained the following passage specific to the budget for youth provision:-
- "Initial consultation with Councillors, staff and management committees took place in October/November. A plan is being developed which will outline the timescale 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."
"Equality impact assessments (EIAs) are undertaken to demonstrate that Council has paid 'due regard' to the need to eliminate discrimination, promote equality and foster good relations in all aspects of its work.
As part of the Councils' ongoing commitment to equality and diversity managers are updating the EIAs to identify any further potential impacts on their proposals included in the medium term financial plan (MTFP) on diverse or more vulnerable groups within our communities. The EIAs will also identify actions that have been or are proposed to be taken to mitigate that impact."
It went on to specify those who had been consulted. A number of organisations were listed; no young persons or their representatives were consulted as a group.
"The initial EIAs identify a number of areas as having potentially high impact on diverse or vulnerable groups and the table below highlights the main issues in respect of these areas. Full details are set out in the EIA document at www.n-somerset.gov.uk/equalities."
The "table below" is reproduced.
|MTFP reference||High impact area||Proposals to mitigate the impact||Consultation Comments and Response|
|CYPS 26||Remodelling youth service provision||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
- Reduction in youth services may have an increased impact on other services such as police and social care
- Young people accessing youth services are likely to be from the most deprived areas in North Somerset
- 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 CFT's 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."
"Ms Thornton addressed Council. She urged the Council to refuse the Council tax freeze grant for 2012/13, and queried the need to have a high level of reserve at a time of large budget reductions. Ms Thornton also commented that the budget reductions would result in the loss of 280 full time equivalent Council posts.
Ms Thornton also 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."
Ms Thornton has made a witness statement in these proceedings. She takes no issue with the minutes. She says, correctly, that the EIA of January 2012 was not presented to the meeting; rather members were directed to a website to download the document. Ms Thornton says that two members, at least, do not use email although that does not necessarily preclude those persons from downloading the EIA. In any event, of course, it may be reasonable to infer that that they knew that they could obtain all relevant EIAs from Ms Roberts, the Defendant's Equality and Diversity Manager.
"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 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 equalities duties mean that public sector employees must give "due regard" to the need to:
i) Eliminate unlawful discrimination embarrassment and victimisation
ii) Advance equality of opportunity between people who share a protected characteristic from those who do not."
In the section immediately following Ms Thornton set out the protected characteristics verbatim from section 149(7) (see paragraph 52 below). Ms Thornton's document also dealt, specifically, with CYPS 26. She wrote:-
"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 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 .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 1 April 2012 in order to assess whether cutting youth services would 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."
"To increase the budget of Children and Young Peoples Services by £350,000. The main purpose of this is to enable continuation of Youth Club provision, whether by direct North Somerset provision or in partnership with parish and town Councils."
The amendment was defeated as were the other amendments which were proposed. In due course the resolutions set out at paragraph 1 above were approved.
"14. With respect to the budget setting Council meeting on 21 February 2012 I recall the comments of the trade unions representatives. Ms Thornton the representative for Unison made an address that she had previously circulated to all Councillors, including myself, regarding the budget savings in general which included reference to the reductions in youth services. Ms Thornton presented a paper at the meeting specifically concerning the Equality Impact Assessments. The paper that she presented at the meeting and which she had previously circulated to all Members set out what the requirements of the public sector equality duties are, including reciting the protected characteristics. Ms Thornton's submission addressed youth services specifically and the cumulative effect of the budget proposals. In relation to Ms Thornton's statement it was clear to me the distinction between the facts that she recited for example the statutory requirements of the Equality Act 2010 and her submissions and opinions on those facts. These representations, whilst not a primary source of equality impact implications for Members to consider, it was nevertheless a reminder to members of our duties. I refer to Ms Thornton's written submission at pages 34 to 41 of exhibit AL1). In addition to Ms Thornton, the representative for the Unite union also addressed the meeting.
15. I further recall that following the Council's Leader tabling the motion for the approval of the Revenue budget an amendment was proposed by Councillor Leimdorfer to increase the Children and Young People's Services budget by £350,000 to enable continuation of Youth Club provision. The amendment was debated and a named vote took place. From the minutes I note that 15 Members supported the amendment and 39 Members, including myself were opposed; the amendment was therefore lost (I produce the minutes at pages 42 to 58 of exhibit AL1).
16. I voted against the amendment because I considered that the revised service would provide continuing youth services but in a different form with more community involvement and particularly that a more targeted approach would provide support for the most vulnerable young people.
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 equality impact assessments 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.
18. In my opinion and taking into account the debates that took place at meetings throughout the budget setting process, the Equality Impact Assessments that were published and the impacts that were highlighted, the public participation and all other factors I believe that Members had sufficient information to discharge our Public Sector Equality Duties and to have due regard to impacts on diverse groups when setting the budget.
19. I understand that it has been alleged that there was no conscious directing of the minds of Members to the Public Sector Equality Duties and I cannot see how this can have been the case. I urged Members to read the full Equality Impact Assessments and the summary reports highlighted the proposals that were potentially high impact, including those relating to youth services. Those Equality Impact Assessments in my view directed Members to the relevant issues. The tabled amendment pertaining to increasing the youth service budget fuelled debate on this issue and the competing demands on the Council's available resources just prior to the budget setting vote.
20. The budget this year was incredibly difficult to set. Taking into account the unprecedented financial challenges we were facing I believe that I and my colleagues took into account all the potential impacts of all the necessary cuts across the full range of Council services, and taking account of the public sector equality duties and all other relevant considerations did the best that we could to ensure delivery services to all the residents of North Somerset. I would echo the words of the Council's Leader in his foreword to the Medium Term Financial Plan (I would refer to the foreword at page 59 of exhibit AL1), we did not wish to be in the position to bring forward a budget making such levels of cuts to services and we acknowledged that the package of cuts across services would have impacts of many residents; we endeavoured to preserve essential services and mitigate impacts wherever possible and this was the case with the youth service budget and all other service budget we had to take into account in this process."
The statutory provisions relevant in this case
"(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."
Sub-section 2 defines "qualifying young persons". Sub-section 3 defines the minimum content of what is meant by "sufficient educational activities" and "sufficient facilities for such activities". Sub-section 5 illustrates how a local authority can comply with its duty under sub-section 1. In summary, a local authority may make arrangements for others to provide access to facilities and/or activities. Sub-sections 7 and 8 are of some importance. It provides:-
"Before taking any action for the purposes of sub-section (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 considers 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 sub-section 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."
Sub-section (9) is critical to the arguments in this case relating to ground 1. It provides:-
"(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;
(iii) access to such activities and facilities; and
(b) secure the views of qualifying young persons in the authority's area are taken into account."
Finally, sub-section 12 makes it obligatory for a local authority exercising its functions under the section to have regard to any guidance given from time to time by the Secretary of State.
"(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 it is prohibited by or under this Act;
(b) advance equality of opportunity between persons who share a relevant protective characteristic and persons who do not share it;
(c) foster good relations between persons who share a relative protective 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 protective 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 protective characteristics are
Pregnancy and maternity;
Religion or beliefs;
As I have said, the duties specified in this section are commonly referred to, collectively, as the public sector equality duties and a local authority must have due regard to those duties when exercising its functions.
"(1) For each financial year and each category of dwellings in its area, a billing authority shall, in accordance with sub-section (2) below set an amount of Council tax.
(2) An amount so set shall be calculated by taking the aggregate of
a) the amount which, in relation to the year and the categories of dwellings, has been calculated (or last calculated) by the authority in accordance with
i) in the case of a billing authority in England, sections 31A, 31B and 34 to 36 below
b) any amounts which, in relation to the year and category of dwellings
i) in the case of a billing authority in England, have been calculated in accordance with sections 42A, 42B and 45 to 47 below and have been stated (or last stated) in accordance with section 40 below in presets issued to the authority by major precepting authorities ..
(8) No amount may be set unless the authority has made in relation to the year the calculations required by this Chapter.
(9) A purported setting of an amount, if done in contravention of sub-section (7) or (8) above, shall be treated as not having occurred."
Section 31A(1) requires a billing authority in England to make certain calculations. Sub-section 2 provides:-
"(2) The authority must calculate the aggregate of:-
(a) the expenditure which the authority estimates it will incur in the year in performing its functions and will charge to a Revenue account, other than a BID Revenue Account, for the year in accordance with proper practices,
(b) such allowance as the authority estimates will be appropriate for contingencies in relation to amounts to be charged or credited to a Revenue account for the year in accordance with proper practices,
(c) the financial reserves which the authority estimates it will be appropriate to raise in the year for meeting its estimated future expenditure,
(d) such financial reserves as are sufficient to meet so much of the amount estimated by the authority to be a Revenue account deficit for any earlier financial year as has not already been provided for,
(e) any amounts which it estimates will be transferred in the year from i8ts general fund to its collection fund in accordance with section 97(4) of the 1988 Act, and
(f) any amounts which it estimates will be transferred from its general fund to its collection fund pursuant to a direction under section 98(5) of the 1988 Act and charged to a Revenue account for the year."
Sub-section 3 provides:-
"(3) The authority must calculate the aggregate of:-
(a) the income which it estimates will accrue to it in the year and which it will credit to a Revenue account, other than a BID Revenue Account, for the year in accordance with proper practices,
(b) any amounts which it estimates will be transferred in the year from its collection fund to its general fund in accordance with section 97(3) of the 1988 Act,
(c) any amounts which it estimates will be transferred from its collection fund to its general fund pursuant to a direction under section 98(4) of the 1988 Act and will be credited to a Revenue account for the year, and
(d) the amount of the financial reserves which the authority estimates it will use in order to provide for the items mentioned in sub-section (2)(a), (b), (e) and (f) above."
Assuming that the aggregate calculated under sub-section (2) exceeds that calculated under sub-section (3) the calculated difference is to be the Council Tax requirement for the year.
"(1) The matters mentioned in sub-section (2) below shall not be questioned except by an application for judicial review.
(2) The matters are
c) a calculation made in accordance with any of sections 31A to 37 .or any of sections 42A to 51 .
d) the setting under Chapter III of this Part of an amount of Council Tax for a financial year, whether originally or by way of substitute;
(3) If on an application for judicial review the court decides to grant relief in respect of any of the matters mentioned in sub-section 2(b) to (e) above, it shall quash the ..., calculation, setting or precept (as the case may be)."
"16. These provisions and their predecessors have been the subject of considerable judicial consideration both at first instance and, in a small number of cases, at appellate level. Save for one particular issue, to which I return below, there appears to be little dispute between the parties as to the approach the Court should take in considering the question of "due regard". They have been brought together conveniently in paragraph 31 of the decision of Mr Justice Blake in the case of R v (Rahman) v Birmingham City Council  EWHC 944 (Admin). I summarise them briefly below:
i) Due regard requires more than simply giving consideration to the issue and councillors should be aware of the special duties a council owes to the disabled before they take a decision R (Chavda) v LB Harrow EWHC 3064 (Admin).
ii) "Due regard" is the regard that is appropriate, in all the particular circumstances in which the public authority concerned is carrying out its function as a public authority. The public authority must also pay regard to any countervailing factors. The weigh to be given to the countervailing factors is a matter for the public authority concerned rather than the Court, unless the assessment by the public authority is unreasonable or irrational. (Dyson LJ (as he then was) in R (Baker) v SS Communities and Local Government  LGR 239 and R (Brown) v SS Work and Pensions  EWHC 3158 (Admin).
iii) No duty is imposed to take certain steps or to achieve certain results. The duty is only to have due regard to the need to take the relevant steps. The Court will only interfere if the local authority has acted out with the scope of any reasonable public authority in the circumstances. The public authority will need to take steps to gather all the relevant information (Brown).
iv) The law does not impose a statutory duty on public authorities requiring them to carry out a formal disability equality impact assessment (EIA) when carrying out their functions. At the most it imposes a duty on a public authority to consider undertaking an EIA along with other means of gathering information (Brown).
v) The due regard duty must be fulfilled before and at the time that a particular policy, which will or might affect disabled people, is being considered by the public authority. It involves a conscious approach and state of mind. It must be exercised in substance, with rigour and with an open mind. It is not a question of ticking boxes (Brown).
vi) The duty imposed on the public authority is non delegable. It remains on the public authority charged with it (Brown).
vii) The duty is a continuing one (Brown).
viii) It is good practice for those exercising public functions in public authorities to keep an adequate record, showing they had actually considered their disability equality duties. If records are not kept it may make it more difficult evidentially for a public authority to persuade a Court that it has fulfilled the duty imposed (Brown).
ix) Some of these principles have been drawn together as follows. There is no statutory duty to carry out a formal EIA. The duty is to have due regard, not to achieve certain results. Due regard does not exclude having regard to countervailing factors but is "the regard that is appropriate in all the circumstances". The test of whether a decision-maker has had due regard is a test of substance and not of mere form of box ticking. They duty must be performed with rigour and with an open mind and is non delegable. Members are heavily reliant on officers for advice in taking these decisions. That makes it doubly important for officers not simply to tell members what they want to hear but to be rigorous in both enquiring and reporting to them R (Domb and Others) v LB Hammersmith and Fulham  EWCA 941 Civ.
x) The clear purpose of (Section 149) is to require public bodies to give advance consideration to the issue of (race) discrimination before making any policy decisions that may be effected by such an issue. This is a salutary requirement which must be seen as an integral part of the mechanisms for ensuring the fulfilment and aims of anti discrimination legislation. It is not possible to take the view that non compliance is not a very important matter. Section 149 has a significant role to play R (Elias) v SS for Defence  EWCA Civ 1293.
xi) Due regard must be an essential preliminary to any important policy decision, not a rearguard action following a concluded decision R (Bapio Action Ltd) v SSHD  EWCA Civ 1139.
xii) Consideration of the duties must be an integral part of the proposed policy not justification for its adoption R (Kaur and Others) v London Borough of Ealing  EWHC 2062 (Admin).
xiii) The Section 149 duty must be kept in mind by decision-makers throughout the decision making process. It should be embedded in the process but can have no fixed content bearing in mind the range of potential factors and situations. What observance of that duty requires of decision-makers is fact sensitive and varies considerably from situation to situation and from time to time and from stage to stage R (Bailey) v LB Brent  EWCA Civ 1586 para 83.
xiv) The importance of complying with Section 149 is not to be understated, nevertheless, in a case where the council was fully appraised of its duty and had the benefit of a most careful report and EIA an air of unreality may descend. Councils cannot be expected to speculate, or to investigate, or to explore, such matters ad infinitum, nor can they be expected to apply, indeed they are to be discourage from applying, the degree of forensic analysis for the purpose of an EIA and of consideration of their duties under Section 149 which a QC might deploy in Court. The outcome of such cases is ultimately of course fact specific (Bailey para 102 Davis LJ)
17. An extremely helpful and concise summary of many of the above statements on the appropriate approach for the Courts in considering whether or not there has been due regard to Section 149 is to be found in R (on the application of JM and others) v Isle of Wight Council  EWHC 2911 (Admin), Mrs Justice Lang at paragraphs 95-108)."
I propose to apply the principles elucidated by Wilkie J and Lang J in reaching my conclusion in this case.