England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT

		Leeds Combined Court 1 Oxford Row Leeds West Yorkshire LS1 3BG
		5 July 2013

JUDGE JEREMY RICHARDSON QC:

Introduction

1. This case is about the decision of a local authority to close a nursery. It is an unfortunate but hard reality that we live in difficult economic times. Local authorities face truly tough decisions, which I daresay most local politicians would prefer not to make if they had any choice. However, tough decisions sometimes have to be made. Such decisions come into sharp relief when it involves the highly emotive subject of the closure of nursery care for young children.
2. In these judicial review proceedings, I am only concerned with the lawfulness of a decision. This court is not hearing an appeal where a review of factual merits might occur. I am solely concerned with the issue of whether the decision, which is the subject of challenge, is lawful. Whether I agree with it or disagree with it is immaterial. Whether I have sympathy for the claimant's cause or not is immaterial. I place all of those and related political issues firmly to one side. They are all immaterial to the decision I make. I am, of course, not unmindful of the local tensions and feelings surrounding this case, but it cannot have any bearing on my decision.
3. This case involves consideration of the decision of Darlington Borough Council ("the Council") to close Kids & Co Nursery ("the nursery"), which operates at two sites in Darlington. That decision was taken by the Council's Cabinet on 8 January 2013. Jacob-Dennis Littlefair is aged 2. He attended the nursery. By his mother and litigation friend he commenced these judicial review proceedings on 21 March 2013. I shall call Jacob and his mother "the Claimant".
4. Permission to apply for judicial review was granted by Her Honour Judge Belcher on 8 May 2013 on the sole ground that the Council failed to take into account relevant matters, namely its own "sufficiency review" completed in March 2012 and the anticipated shortfall of alternative provision.

The Claimant

5. There is no prohibition to publishing the name of the infant claimant or his mother, as would normally be the case. The mother placed her son's identity in the public domain by revealing it to the press. It would be artificial and wrong to camouflage his identity now.
6. Technically, the claim by this claimant is academic as Jacob has now left the nursery. This was raised at the outset of the hearing and I gave a ruling permitting the case to proceed. Plainly the issues raised in this case are of public importance. It would be possible to find a substitute claimant quite easily, but to do so would cause delay and expense. It would, in my judgment, be disproportionate to indulge in that expensive technical diversion when the decision affects other individuals in any event. The Council are also desirous of an urgent decision. Consequently, I gave permission for this case to proceed notwithstanding the lack of personal advantage to the claimant. Although the claimant is no longer personally affected, there are many others who are. Although I gave a brief ruling on this issue, I feel it important to repeat the essence of it in this judgment.

The Crucial Backdrop

7. There is a crucial backdrop to the situation in which the Council found itself. All local authorities were, and still are, required to make considerable savings in their budgets. The Spending Review of Her Majesty's Government ("HMG") in October 2010 had the consequence for the Council of being compelled to reduce non-capital spending by £22 million from a budget of £107 million over a 4 year period. That meant in real terms a need to save £10 million in the year 2011/2012.
8. The actual situation became even worse. The need for further savings was identified resulting from the local government's settlement for 2013/2014 announced by HMG in December 2012. This has resulted in the need to reduce spending by £10.5 million by 1 April 2014 and a further £5 million by 2015/2016.
9. This economic backdrop to the Council's finances provides a stark reminder of the difficulty faced by all local authorities. All have no alternative to reduce spending. Tough decisions had, and continue to have, to be made. It is unenviable and difficult. It is against this backdrop I turn to the facts of this case.

The Facts

10. The nursery was set up in 1994 to assist mothers of children who were employees of the Council. They could leave their children in the safety of the nursery whilst continuing employment. The basis of the nursery changed over time to form a partnership with a local nursery school providing childcare for children aged 2 to 8 years. There was further expansion to admit even younger infants. Finance came from HMG, who in 2003 were desirous of supporting nursery provision in disadvantaged areas. There were subsequent enlargements and transformations such that the nursery operates on the same site at Borough Road Nursery School, which is a council maintained school.
11. By January 2013, the nursery (as opposed to the nursery school) was operating at about half its operational capacity, the details of which appear in the witness statement of Murray Rose, the Director of People's Services of the Council ("the Director"). The Council were forced to examine areas of their domain where savings might be made. In relation to the nursery, a decision was made in June 2012 to examine the whole question of nursery provision within the Council.
12. On 1 October 2012, the Council initiated a 90 day consultation with parents and staff at the nursery about the prospect of closure. Reports were prepared. The issue of closure was debated by the Cabinet of the Council on 8 January 2013. The minutes of the meeting record the decision at item C104. Following a brief account of the course of the meeting, the minutes read:

"Resolved:

(a) That the flexi childcare service be closed following the required period of notice for staff.

(b) That the childcare provision for children aged under 3 of age at both Borough Road and Northward facilities be closed from the end of the spring term.

(c) That the childcare provision be retained until August 2013 for the 95 children across both settings who will be due to start school in September of that year, thus minimising disruption for those children and their families.

Reasons:

(a) All three Kids & Co services are running at a total deficit of £212,000 per annum at a time when the Council is having to prioritise services in accordance with its statutory obligations and its available budget.

(b) In spite of extensive detailed work, no model of running the provision has been identified which removes the need for a Council subsidy.

(c) No alternative models have been proposed formally by any other parties which would remove the Council subsidy.

(e) Neither school as hosts of the nurseries is currently prepared to consider a partnership arrangement with another provider.

(f) Other childcare vacancies exist across Darlington amongst childminders and private day nurseries.

(g) There is no longer any demand for the flexi childcare, service partly due to other service reductions within the local authority, and there were no consultation responses received which would lead members to review the original proposal for closure.

(h) Closure of the provision at the end of the spring term for children aged under 3 gives parents a reasonable period of notice with which to find alternative settings or to make other arrangements.

(i) Closure of the provision at the end of August 2013 for children transferring to school in September 2013 removes any disruption for those families and removes the need for them to seek alternative arrangements for only one term."

13. Members of the Cabinet had a full report by officers and a summary thereof which recommended, inter alia, closure. The Cabinet had a number of background documents including the Childcare Sufficiency Assessment 2011 ("the 2011 Assessment"), which is a comprehensive document running to 165 pages addressing the statutory requirements under the Childcare Act 2006 ("the 2006 Act").
14. The one document that was not included nor considered by the Cabinet was Darlington's Childcare Sufficiency Review 2011/2012 ("the 2012 Review"), which runs to 12 pages.
15. One crucial aspect of the decision-making process related to the fact of a telephone audit conducted during the last week of November 2012, which revealed there were a large number of childminder vacancies and that there were unfilled places at other nurseries within the jurisdictional area of the Council.

The Claim for Judicial Review

16. It is asserted by the claimant that the Council have not had regard to a highly relevant consideration, namely the 2012 Review. It is asserted that a misleading impression was given to the Cabinet as to the levels of infant childcare provision and it ignored a material consideration when it reached its decision to close the nursery.
17. The argument of the Council is that it had up-to-date information when the decision was made, and providing material to the decision maker that was out of date would have been incorrect and misleading in itself. Furthermore, it is argued the Council have no legal obligation to provide a nursery. It is a discretionary provision. The Council has been advised by HMG (via the Department for Education) that it should be a provider of last resort. The policy of the Council in the stringent economic climate of today is to prioritise those services were there is a statutory or other duty to provide.
18. It is right to observe that although the 2006 Act does not mandate local authorities to provide childcare themselves, there is a duty upon them to secure sufficient childcare for working parents.
19. The arguments advanced about the Council's decision being legally irrational on Wednesbury grounds are no longer pursued, and in respect of which Judge Belcher did not grant permission. She was doubtless mindful of R v Secretary of State for the Environment, ex parte Nottinghamshire County Council [1986] AC 240 and R v Secretary of State for the Environment, ex parte Hammersmith and Fulham London Borough Council [1991] AC 521. I shall say no more about that historic aspect of this case. It must be emphasised this is not a Wednesbury case. This case is about the Council allegedly ignoring a material consideration when it made its decision.
20. There is a qualified obligation on the Council (indeed all local authorities) to provide childcare within section 6(1) of the Childcare Act 2006, which provides:

"An English local authority must secure, so far as is reasonably practicable, that the provision of childcare (whether or not by them) is sufficient to meet the requirements of parents in their area who require childcare in order to enable them—

(a)to take up, or remain in, work, or

(b)to undertake education or training which could reasonably be expected to assist them to obtain work."

Subsections(2) and (3) provide:

"(2)In determining for the purposes of subsection (1) whether the provision of childcare is sufficient to meet those requirements, a local authority—

(a)must have regard to the needs of parents in their area for—

(i)the provision of childcare in respect of which the child care element of working tax credit is payable, and

(ii)the provision of childcare which is suitable for disabled children, and

(b)may have regard to any childcare which they expect to be available outside their area.

(3)In discharging their duty under subsection (1), a local authority must have regard to any guidance given from time to time by the Secretary of State."

21. It is not suggested by the claimant that there has been a breach of section 6(1). It is, however, argued that the Council failed to consider a relevant consideration, namely the March 2012 Review, when it purported to comply with section 6(1), the Childcare Sufficiency Assessment 2011 and the Childcare Sufficiency Review 2012.
22. Before going further, it is necessary, albeit briefly, to set out what is contained within the Childcare Sufficiency Assessment 2011 and the Sufficiency Review 2012. I shall call the former "the Assessment of 2011" and the latter "the Review of 2012". It will be remembered that the Assessment was before the Cabinet, the Review was not.
23. The Assessment of 2011 is, as I have said already, a comprehensive document. It addressed the issue of sufficiency of childcare to meet the needs of working parents in Darlington and its environs with thoroughness and rigor. The research was considerable and it is all set out with pellucid detail. The conclusions are to be found within section 16 on page 162 of the report. Appended to the report are a series of action plans designed to focus upon perceived gaps identified in childcare provision.
24. That report was before the Cabinet when they made their decision. The Review of 2012 was exactly that: a review. It set out what progress had been made since the Assessment of 2011. It also analysed the "childcare market during 2011/2012". In this regard, a division is made between childminders and nurseries. The Review indicated that two private nurseries had closed with a net reduction of providers from 22 to 20. Recorded cases of unmet childcare demand were relatively low at 7, in contrast to higher figures in earlier years. There was an identifiable shortfall of childminders in certain localities within the area at that time. This Review was not before the Cabinet.
25. The situation is explained by the Director, who states at paragraphs 36 to 40 of his witness statement as follows::

"36. Under the Childcare Act 2006, local authorities have a duty to assess the sufficiency of the childcare in their area at least every 3 years. Details of the legal obligations and the sufficiency assessment were set out in the Cabinet report [paragraph 21 to 28, page 100 of the bundle]. The March 2011 Childcare Sufficiency Assessment was included as a background paper to the Cabinet report. It should be noted that in February 2013 the Government published its Children and Families Bill 2013, which is progressing through Parliament and repeals the local authority's duty to assess sufficiency of childcare provision [section 11 of the Childcare Act 2006]. However, under section 6 of the Childcare Act 2006, the local authority's statutory duty to ensure childcare remains.

37. The 2011 Childcare Sufficiency Assessment is a comprehensive piece of work. The assessment considers, amongst other matters, the population of Darlington, the labour market, childcare use, the supply and demand of childcare, and included a full gap analysis comparing the future childcare requirements of existing and prospective parents and carers, including a number of minority groups, and also of local employers with a snapshot picture of existing childcare supply in Darlington. From the beginning of the assessment process, including commissioning any research support I required publishing the documents, the assessment takes around 18 months. The completed 2011 Childcare Sufficiency Assessment ran to 166 pages.

38. As well as the very detailed 3-yearly childcare assessment, a yearly review is also undertaken in the intermediate years. This is a far less extensive piece of work than the full assessment. The review takes around 2 to 3 weeks to complete. It looks much more simply at childcare demands, looking at the unmet demand list recorded by Darlington's People and Families Information Support Service and taking into account any occurrences in Darlington which may affect childcare demand over the next 12 months (from a large employer closing down or a new building development being built). It also looks more simply at supply within the childcare market, concentrating on the main areas for concern highlighted in the previous assessment.

39. In respect of the Cabinet's decision, the most up-to-date review available was the 2011/2012 Childcare Sufficiency Review, which was published in March 2012. The review was not presented to members, which were instead provided with the most up-to-date information about vacancies which the Council obtained from a telephone audit.

40. Unsurprisingly, there had been some changes between the full assessment and the 2011/2012 review. The information presented to Cabinet about the full assessment [see paragraph 25, page 101] summarised that "Darlington's Childcare Sufficiency Assessment, reporting in March 2011, identified that sufficiency of provision for children under 5 years was adequate, with identified gaps being for holiday, afterschool care and inclusive provision for disabled children"."

26. It is perhaps not without significance that the current situation as of 4 June 2013 (the date of the Director's statement) is:

"The 2013 Review, which is currently in draft form, shows that between March 2012 and March 2013 the number of private daycare nurseries in the Borough has remained static at 20, although one additional setting at the Darlington arena opened in April 2013 with capacity for 70 children. The rest of the childcare market has remained static, as has the number of unmet childcare enquiries. The current position at Kids & Co is that there are a total of 154 children on roll and who will need to be placed, amounting to 71 full equivalent time places or 142 session, although many of these will be starting school in September 2013. The information that was available to Cabinet showed that there was surplus capacity to place these children. A further telephone exercise was carried out by staff at the end of May 2013 to seek to find out what vacancies existed. This confirmed again that from the data that was obtained there are both childminder and nursery vacancies in excess of the placements required upon the closure of Kids & Co."

27. The essence of the Director's submission to the Council (via its Cabinet) was that there was sufficient alternative provision based upon the up-to-date position which was reported to the Cabinet.

The Claimant's Argument

28. The argument advanced by Mr Ben McCormack, of behalf the claimant, stripped of much detail, comes to three simple propositions: (1) the Council has left out of consideration a factor, namely the 2012 Review, which, he asserts, was obviously material; (2) the provision of other childcare resources in the area was plainly a material consideration; and, (3) the information in the 2012 Review was highly relevant, and ignored by the council. I forbear to recite the written submissions contained in the skeleton argument or recount the oral submissions which amplified them.

The Council's Argument

29. The argument advanced by Mr Richard Clayton QC, on behalf of the Council, can be distilled in this way: (1) on the facts of this case, the 2012 Review was not an obviously material consideration; (2) the core issue to be resolved by the Council was whether there were sufficient places elsewhere if the nursery should close; (3) the Council had placed before them the main historic document (the 2011 Assessment) and the up-to-date position, which enabled them to reach a conclusion; (4) the 2012 Review (note, a review, not an assessment) was a class of document that the Council was entitled to consider if they wished to do so or not, as the case may be; and, (5) factually, it is asserted, the claimant has been selective in the presentation of what is and is not germane to the legal issues.

The Legal Issues

30. The central question for me to determine as a matter of law is whether the 2012 Review was a material consideration. If it was, the Council have acted unlawfully. The Council then mount the argument that even if it had been placed in the equation, the result would have been the same. The Council also asserts as a backstop that the court, as a matter of discretion, should not grant relief as events have now very considerably moved on.
31. The two final arguments only arise if I adjudge the 2012 Review to be a material consideration. It is to that issue I now turn.

Material Consideration

32. I commence by referring to the Childcare Act 2006. By section 6(1), the Council is required, subject to reasonable practicability, to secure the provision of childcare, not necessarily by the Council itself, for the children whose parents are in employment or undertake education with a view to employment. By section 11(1) and 11(3), the Council must prepare childcare assessments every 3 years. An annual report is also needed pursuant to statutory guidance issued by the Department for Education in 2010. This latter aspect of the regime is not of importance. In simple and understandable terms, there is a requirement placed upon the Council to undertake 3-yearly assessments, but in the intervening years reviews should be undertaken. In this case, there is no suggestion of any breach of the statutory requirements.
33. There is a difference between what is sometimes called a target duty and a duty owed to an individual. It is a matter of statutory interpretation into which category a duty extends. It is also clearly understood that the Administrative Court is not an appellate court reviewing the factual merits of a case when exercising its judicial review jurisdiction. However, the question whether a particular item is a material consideration is a question of law.
34. In the factual and legal matrix of this case, it has not been suggested by the claimant that there is any statutory or regulatory demand to consider the 2012 Review when making the decision about whether to close the nursery. The duty on the Council is to ensure adequacy of provision of childcare as described by section 6(1). Mr McCormack asserts that the 2012 Review falls into the category of material postulated by Lord Scarman in the House of Lords in In re Findlay & Ors [1985] 1 AC 318, where he accepted the proposition of Cooke J (later a judicial member of the House of Lords) in a New Zealand case called CREEDNZ Inc v Governor General [1981] 1 NZLR 172. Cooke J (as he then was) said:

"What has to be emphasised is that it is only when the statute expressly or impliedly identifies considerations required to be taken into account by the authority as a matter of legal obligation that the court holds the decision invalid on the ground now invoked. It is not enough that a consideration is one that may properly be taken into account, nor even that it is one which many people including the court itself, would have taken into account if they had to make the decision."

Lord Scarman indicated that passage was a correct statement of principle when an administrative discretion had to be exercised in a situation where a statute permits, but does not require, consideration of certain matters.

35. It would be interesting, but unnecessary, to refer to all the intervening cases between then and now, but I shall refer to one of the most recent articulations of the principle of this aspect of administrative law: R (on the application of ICO Satellite Ltd) v Office of Communications [2011] EWCA Civ 1121, where Pill LJ restated the now well-established principles and cited passages from intervening and important cases. Pill LJ was dealing with the question whether the judge at first instance in that case should have taken into account possible prejudice to third parties when the decision maker wrote to an international telecommunications organisation requesting cancellation of assignments of frequencies in a satellite communications system of the claimant. Pill LJ (with whom Toulson LJ and Sullivan LJ agreed) said this (see paragraphs 49 to 53):

"49. I accept that when stating, at paragraph 109 of his judgment, that 'the question of possible prejudice to third parties was not a legally relevant factor', the judge has elided the question whether it was capable of being a legally relevant factor with whether it was a factor the decision maker was required to take into account. The distinction was considered, in relation to a quite different statutory regime in Re Findlay [1985] AC 318. At page 333H, Lord Scarman, with whom the other members of the Committee agreed, cited with approval the statement of Cooke J in CREEDNZ Inc v Governor General [1981] 1 NZLR 172, at 183: ... "

I interpolate to indicate that at that part of the judgment Pill LJ quoted the portion of the New Zealand case that I quoted a little earlier.

"50. Cooke J added, at page 183, that 'there will be some matters so obviously material to a decision on a particular project that anything short of direct consideration of them by the Ministers ... would not be in accordance with the intention of the Act'.

51. That approach has been approved in more recent cases. In R (Hurst) v London Northern District Coroner [2007] 2 AC 189, Lord Brown of Eaton-under-Heywood stated, at paragraph 57:

'Some considerations are required to be taken into account by decision makers. Others are required not to be. But there is a third category: those considerations which the decision maker may choose for himself whether or not to take into account.'

52. In R (Corner House Research) v Director of the Serious Fraud Office [2009] AC 756, Lord Bingham of Cornhill stated, at paragraph 40:

'A discretionary decision is not in any event vitiated by a failure to take into account a consideration which the decision-maker is not obliged by the law or the facts to take into account, even if he may properly do so.'

53. On the evidence, as Mr Jenne for Ofcom was entitled to conclude, there was no realistic prospect of this assignment being used in any real sense. In the present statutory context and on the present facts, Ofcom was not obliged to take into account the impact or lack of impact of the decision on third parties, which amounts in this case to an absence of evidence of third parties being deprived of, or seeking, an assignment. Neither was it obliged to take into account the financial effect of the decision on the appellants."

36. For the sake of completeness, I simply call attention to significant cases on this point: R (Hurst) v London Northern District Coroner [2007] 2 AC 189, see paragraph 57; Al Rawi & Ors, R (on the application of) v Secretary of State for Foreign & Commonwealth Affairs & Anor [2008] 1 QB 289, see paragraph 31; Adlard, R (on the application of) v Secretary of State for the Environment, Transport & Regions [2002] 1 WLR 2515; and R v Somerset County Council, ex parte Fewings (Quantock Staghounds) [1995] 1 WLR 1037.
37. The principles of law are well established and can be synthesised to these propositions which I apply to this case:

(1) If a decision maker is required to make a decision pursuant to statutory or regulatory factors, he must apply or consider those factors directly or indirectly to the decision. That is a matter of legal obligation. The factors may be articulated or implicit.

(2) There are some decisions which are not directly governed by statute or regulation but where the decision maker must consider a factor which is so obviously material to a decision. This would be were a decision embraces a duty among other factors.

(3) There is a third category of considerations which the decision maker may choose for himself whether or not to take them into account.

38. It is important not to conflate a legally material consideration and factor material which may (emphasis may) form part (emphasis part) of the material consideration.

Did The Council Ignore a Material Consideration?

39. In this case, the Cabinet of the Council was required to make a decision whether to close the nursery or not. In making that decision, plainly their duty under section 6(1) of the 2006 Act was a highly material statutory factory. The duty was not one applicable to an individual but an obligation, subject to reasonable practicability, to ensure there are sufficient places for those, as defined by section 6(2), who need childcare provision.
40. It was plainly necessary for the Cabinet of the Council to apply the terms of their duty to their decision. As part of that, it was plainly, indeed obviously, material to ascertain whether there were adequate places elsewhere if the decision should be made to close the nursery so as to comply with the statutory duty. The material consideration, among other considerations, including financial stringency, was the adequacy of other childcare provision.
41. Put in blunt terms the cabinet had to ask themselves: if we close the nursery, are we able to comply with our statutory duty to ensure adequate childcare for those covered by the Act? Plainly, if that issue had not been addressed when it made its decision, the Cabinet would have omitted a material factor and their decision would have been susceptible to a strong challenge. However, it is plain that factor was considered. Paragraphs 21 to 28 of the main report of Officers to the Council makes this as plain as plain could be. It was a matter for the judgment of the Council, as the decision maker, as to what material to place into their decision making matrix, providing it is relevant and accurate.
42. In this case, the Council had a very full assessment of 2011 and the up-to-date information contained in paragraph in paragraph 27 of the main report:

"A telephone audit conducted during the last week of November 2012 by the Families Information Service indicates a large number of childminder vacancies exist across the Borough. All 20 nurseries were contacted and of the 14 that have responded to date, 11 showed vacancies and 6 are still to respond to the audit."

43. Plain it is the Council based its decision upon the information (highly material information) that was the most recent assessment of childcare provision in their area to enable them to make their decision in accordance with the section 6 statutory duty. It is quite impossible to say with any conviction that the Council were presented with a misleading picture when they had up-to-date information on a crucial issue. The Director makes this clear in a number of observations in his witness statement. It is pertinent to note that the claimant has never sought to challenge the conclusion that there were sufficient vacancies for childcare. On the up-to-date material before the cabinet, that was plainly a legally reasonable conclusion.
44. Whilst I accept the contention it was a highly material consideration to have an assessment of childcare provision in Darlington in order to comply with the Council's statutory duty, I cannot see there being any statutory or other obligation to consider the 2012 Review. Counsel of perfection may have suggested passing reference to it, but that really is the high water mark of criticism, and that in no way inflates the 2012 Review to a material consideration. It was at best historical information. It was a review of matters as of 2012 stemming from the 2011 Assessment, which was a fundamental piece of work. It is plain to me the Council carefully analysed the relevant data and concluded there was adequate provision, should the nursery close, at local nursery and primary schools. There was a significant debate in the Cabinet about this issue (see paragraphs 57 and 58 of the Director's statement of 4 June 2013).
45. I feel it is important to repeat and state with pellucid clarity that the 2012 Review was not a material consideration. The material consideration was the adequacy of other provisions so as to comply with the statutory duty. Whether the Council chose to look at the historic picture or only part of it is a matter for them, subject to acting reasonably; more accurately, not Wednesbury unreasonably.
46. Try as I might to view the claimant's argument as benevolently as I can, I fear there has been an elision of the concept of something being legally a material consideration and facts forming part of the material consideration or not. Although historical facts may be interesting and of marginal relevance, or even forming a foundation of the current position, it is the current position in fact that is pivotal to the issue of material consideration. Subject to Wednesbury principles, what facts or evidence the decision maker places into the matrix when he is addressing a material consideration is really a matter for him. This is not an appellate court viewing factual merits.
47. I am very conscious of the helpful exposition of this by Lord Brightman in R v Hillingdon London Borough Council, ex parte Pullhofer [1986] AC 484 at 518:

"Where the existence or non-existence of a fact is left to the judgment and discretion of a public body and that fact involves a broad spectrum ranging from the obvious to the debatable to the just conceivable, it is the duty of the court to leave the decision of that fact to the public body to whom Parliament has entrusted the decision-making power save in a case where it is obvious that the public body, consciously or unconsciously, are acting perversely."

48. I have to say that having viewed and considered the submissions of the claimant I might be forgiven for thinking that a back door or oblique Wednesbury challenge is being made. I am inclined to the view that the assertion by Mr Clayton QC, for the Council, that the claimant's case is contrary to basic principle, has force.
49. I have read and re-read the material before the Council and I am convinced the Cabinet had all relevant matters before it when it reached their decision. The memebers had all relevant data and it was analysed. I do not intend to condescend to detail, as that would be to embark upon a factual appeal excursion. I call attention to the evidence of the Director in his first (4 June 2013) and his second, (28 June 2013) statements. He presents a convincing case for adequacy of places for childcare. I reject the claimant's factual assertions to the contrary.

If I Am Wrong, Would It Have Made Any Difference?

50. That is all I really need say. However, the Council has submitted that even if I am wrong about this, had there been inclusion of the 2012 Review in the historical matrix considered by the Cabinet, it would have made no difference to the decision and was an error of little or no consequence.
51. As I have already observed, the absence of the 2012 Review was really an absence of a relatively minor historical waypoint, a factual waypoint, that was of passing interest but not fundamental or even intrinsic to the material consideration of the current adequacy of childcare provision. Even if it should have been there to read, contrary to my primary conclusion, it could have had no more importance than passing interest. It could not have swayed the decision. Indeed, to have placed it in the position ahead of the up-to-date material could well have been regarded as perverse. In my judgment, the decision would have been the same even if it had been considered.
52. I have also been asked by the Council to decide in the event I am comprehensively wrong about the previous two points whether I would have granted relief given the situation that now exists. Firstly, the Cabinet could convene an emergency session to reconsider this decision quite quickly. Although massively inconvenient, it could be done. Secondly, the modifications to the extant report would be relatively modest and the 2012 Review is not long. Consequently, the decision could be taken again. However, the Council have called attention to the consequences for others, namely the two other schools who are to admit pupils, increasing costs, staffing issuing and a range of other valid matters set out in the Director's second statement and distilled at paragraphs 64 and 65 of Mr Clayton's written submissions. The simple point is "we are where we are". The situation has moved on since January 2013 and the Council would have to decide as things are, not as they were 6 months ago.
53. In the result, I am of the view that declaratory relief would be the likely solution given the current situation on the ground. This is the only matter in the claimant's armoury that has caused me concern. It is in the balance whether I would have ordered the decision to be taken again or granted a declaration. By a fine balance, I feel I would have granted declaratory relief.

Conclusion

54. As it is, the second and third points do not arise, as the Council plainly addressed the issue lawfully. I know this will be a disappointment for the claimant and supporters but whatever sympathies anyone might harbour when a nursery is closed, my task is simply to adjudge the lawfulness of the decision. It was lawful.
55. This application is dismissed.

JUDGE JEREMY RICHARDSON QC: Mr Parkhill, I indicated the other day that the application would be dismissed. I would be very grateful if you would assist in drafting a very short order for my approval today.

MR PARKHILL: Certainly, my Lord.

JUDGE JEREMY RICHARDSON QC: I think all it needs to do is to record that I have considered the judicial review application and that I have delivered a judgment, and then the order will simply be that, firstly, the application is dismissed; and, secondly, the order for costs in the sum that was mentioned to me the other day, which I cannot now remember.

MR PARKHILL: I am afraid I am at a loss as well, my Lord, as I was not here before you. I understood the position was that there would be an order for assessment of the claimant's legally aided costs. It may be that the claimant's representative can assist me on that and I will make some enquiries and see if there is a figure.

JUDGE JEREMY RICHARDSON QC: Certainly. There was. I think it was that the claimant should pay your costs but not to be enforced without leave of the court. I think that is the normal order but I think that the figure was, whatever it was that was mentioned, and I cannot now remember what it was, but I approved it would not be enforced without the permission of the court. I think that is the right form of order because if suddenly they win the lottery or something, then they might have to pay. Although, it is an infant claimant, that is the only thing that causes me any concern. Is there a different form of order when it is an infant claimant?

MR PARKHILL: Not that I am aware of.

JUDGE JEREMY RICHARDSON QC: Not that I am aware of either but I want to check that. In any event, the order for costs is not to be enforced without the permission of the court.

MR PARKHILL: Certainly. I will draw that up, my Lord, make some enquiries and submit that to you.

JUDGE JEREMY RICHARDSON QC: Very good. Given the absence of Mr McCormack, I assume that there is no application for permission to appeal. He indicated to me that if there should be one, he would himself attend today.

MR PARKHILL: Yes, it is my understanding, from speaking to the claimant's representative, that there was no intention to make that application.

JUDGE JEREMY RICHARDSON QC: Very good, then I need not consider it. If you would be kind enough to spend the next few minutes drawing up the relevant order and then pass it through to me for approval, then that is the end of the matter.

MR PARKHILL: Certainly. Thank you very much.

JUDGE JEREMY RICHARDSON QC: Thank you very much indeed. I am very grateful to you. The bundles, given that there is unlikely to be an appeal, do you want them back or can we destroy them? If you would like them back, take them now.

MR PARKHILL: I will ask that question and it may well be that we take them all or ask that they be destroyed. I will have to take some instructions on that.

JUDGE JEREMY RICHARDSON QC: Make a decision as you wish; they are there, we do not want them.

MR PARKHILL: Certainly. We shall decide between ourselves the best way forward in that sense.

JUDGE JEREMY RICHARDSON QC: The only things I have removed are the various quotations, so that when the transcript comes for approval I have got the original documents. Very good. Thank you very much indeed. Unless, there is anything else?

MR PARKHILL: No, thank you.

JUDGE JEREMY RICHARDSON QC: Thank you very much.