Legal challenge to Oxfordshire children's services cuts falls at first hurdle

It has been a year since the October 2015 report by charity 4Children that two-thirds of England's children's centres had found their budgets cut in the previous year.  In the year which has passed since the 4Children report, the situation has, if anything, worsened. The charity itself has closed due to funding pressures, and there have been substantial further cuts to local authorities' funding. In George Osborne's spending review of November 2015, it was announced that there would be a 24% loss of local authorities' core funding from central government by 2020 (taking account of inflation), in addition to a 40% cut between 2010 and 2015.  

Many cash-strapped local authorities have responded to these drastic budget cuts by reducing frontline services, saying that this is essential in order to save money.  Across the country, this is resulting in many children's centres closing their doors - for example, in Hampshire, Essex, Birmingham, and Northamptonshire.  

These cuts to children's centres have been highly controversial and heavily criticised.  One high-profile critic of the plans was Mary Cameron, mother of the then Prime Minister, David Cameron, who told the Daily Mirror that she was "very sad" to hear that a Berkshire children's centre at which she volunteered was to close due to budget cuts, and she also signed a petition opposing the closure of children's centres in Oxfordshire.  

The Oxfordshire County Council's plans which troubled Mary Cameron would see 31 of 44 children's centres closed, along with two of seven early intervention hubs. The critical decisions were taken in February 2016.  First, there was a 16th February decision by the full Council to determine its budget for the following year, and it forecast its likely future needs in a "medium term financial plan" (MTPF). The MTFP made clear that the Council would seek to reduce even further the amount of money it spent on early intervention services for children.  Second, in light of the full Council's 16th February decision, Oxford's Cabinet - i.e. the executive - approved a plan to cut funding for children's centres for 2017/18 a number of days later, on 23rd February.

These two closely linked decisions were challenged in a judicial review application made by two local children, acting through their mothers as their litigation friends.  Their mothers said that they had derived considerable benefit from the open access nature of the existing children's centres in the area, which would be changed under the plans.  

A rolled-up hearing took place in July 2016 before Mr. Justice Langstaff.  The Oxford Mail reported that Peter Oldham QC, for the Council, argued that overturning the changes would be like trying to "turn back time", saying that children's centre staff had been quitting their jobs "at a rate of knots".  He submitted that, since the February decisions, budgets had been set, council tax collected on that basis, and money had been spent. He submitted that, "it is a great time of anxiety. An awful lot is moving forward and you cannot turn back time.  Judicial reviews are about reality. We will be ploughing on with these plans. That is a fact of life."

Given the urgency of the issues, Mr. Justice Langstaff gave a very prompt decision, on 1st August, dismissing the challenge.  No reasons were given at that stage, however, and the reasoned judgment has just been handed down, on 7th October 2016: R (A and Others) v. Oxfordshire County Council [2016] EWHC 2419 (Admin). Mr. Justice Langstaff concludes that the claim was simply "untenable on the facts" and so he refused permission (but made clear that, in any event, he would have dismissed the applications: [64]). 

The judgment sets out the two grounds of challenge advanced by the claimants, both of which were rejected by the Court. 

(1) First, the claimants challenged the 23rd February executive (Cabinet) decision, on the basis that the Council "erroneously proceeded on the basis that the £6m budget cut contemplated by the MTFP was a given" and so unlawfully failed to comply with s. 5D, Childcare Act 2006 (duty to consult in respect of decision-making concerning children's centres), or s. 149, Equality Act 2010 (public sector equality duty, "PSED"). The claimants argued that instead of assessing the need for children's centres, the Cabinet assessed what should be provided within a fixed budgetary constraint.

(2) Second, their alternative argument was that, if the MTFP of 16th February meant that the £6m cut was a firm decision, then that decision breached s. 5D and s. 149.

Mr. Justice Langstaff rejected the claimants' argument that the Cabinet had regarded the MTFP as "a given, rather than as an indicative financial plan within which there would be some fleixbility": [36]. Fatal to their argument was a witness statement of the Cabinet Councillor with lead responsibility for children, education and families which asserted that she did not believe at the time that the MTFP was "set in stone": [41]. The Court noted that:

43. There has been no application to cross-examine Councillor Tilley on that evidence.  There is no evidence to the contrary.  Mr Wolfe points to the absence of any other member of the Cabinet providing a witness statement expressing the same view.  However I do not think this can have the effect of neutralising the evidence which is before the court, proffered by the Cabinet Councillor with lead responsibility for the area.  Moreover, it seems to me to fit with the probabilities: all members of the Cabinet who were councillors were also, by definition, members of the full Council.  Council had made a significant adjustment to the MTFP in respect of the very budget item to which the discussion at Cabinet related.  Instead of the budget being set in accordance with the MTFP as it had been before the Council meeting, which had anticipated a £2 million reduction, this was now to be only £0.8 million.  Discussion took place in Council about the advisability of closing children's centres, which demonstrates that those participating in the discussion did not think that the MTFP previously agreed was fixed in any conclusive way.   
44. Accordingly, since the Claimants' case is that but for a belief that the MTFP was set in stone, the Cabinet decision could not be challenged on the ground of a failure to consider need, to consult properly, or to apply the PSED, the challenge as a whole must fail.  It does so on the facts.   

Even had the facts been different, however, the Court would not have upheld the claim. Had the Cabinet been considering the budget to be a fixed one, in Mr. Justice Langstaff's view, the approach they adopted did not violate their statutory obligations, given the respective responsibilities of the full Council and the Cabinet. At [48] he states that, "I do not accept that Cabinet was obliged by the principles of "due regard" to reconsider the overall budgetary provision which Council had made. To do so would oblige it to take a decision which it was for the full Council to take."

The Court addressed in some detail various community impact assessments dating from 2014 onwards and a consultation concerning proposed closures of children's centres, which had been partially completed by the time of the first decision on 16th February.  Langstaff J did not consider it problematic that the "full and final report" on the consultation was not before the Councillors when they voted, given the flexibility which was retained within the spending envelope. Oddly he cites as support for this conclusion the fact that the Council in September 2015 had before it a report recommending consultation on closure proposals which flagged a number of the relevant issues.

The final nail in the coffin comes at [61]-[62], when Langstaff J concludes that, in any event, the controversial s. 31, Senior Courts Act 1981 would have halted the claim in its tracks, as even if there had been any error this would have made no substantial difference to the outcome: "the probability that the decision would have been the same is so strong that the high threshold is met." 

This judgment undoubtedly makes for disappointing reading for the campaigners who have been fighting to prevent the closure of Oxfordshire children's centres.  It is also disappointing, but unsurprising, reading for lawyers concerned regarding whether the s. 5D and s. 149 duties can be of effective assistance in challenging closures at local level which result from centralised decision-making regarding local authority budgets. Those concerned regarding the corrosive effect of s. 31, Senior Courts Act 1981 in PSED and consultation duty cases will also find no comfort in this judgment.

However, there are two chinks of light for those concerned at children's centre closures elsewhere who may be considering a legal challenge. 

First, this case turned very much on its own particular facts, which may not be replicated elsewhere: both the extent of the background documents and debate regarding the effect of the cuts, and also the particular issue raised at [43]-[44] of the judgment, which makes clear that the claimants suffered from not confronting the key evidence of the lead Councillor. In other cases, the evidence may not be so strong; and key witness statements such as these may lead to applications to cross-examine the critical witness, and/ or to secure and apply to admit evidence to the contrary.

Second, the widely reported remarks of the Council's QC at the July hearing, to the effect that this challenge was too late and financial decisions were already in train, was not accepted as a valid basis to refuse permission: [59]-[60]. Those faced with similar "King Canute"-style arguments in other cases can draw some limited comfort from these passages of the judgment.

It remains to be seen whether the children in this case will appeal. When the decision was announced on 1st August, campaigners indicated that they may appeal, although they needed to await Langstaff J's reasons.  Jo Lovell of Save Oxfordshire’s Children’s Centres campaign described the result as, "a huge surprise” and said she awaited the reasons, to know, "whether the judge thinks the Council’s assessment of need was lawful, whether he thinks Councillors had ‘due regard’ of the impact of the decision on children and families and whether he believes they had an ‘open mind’ when considering closures.” Unfortunately, they have had to wait two more months for the reasons, although they do now have them and can consider their next steps.

What is clear from the widespread closures of children's centres across England is that the budgetary constraints placed upon local authorities by cuts in recent years may leave them insufficient leeway to protect general frontline services for all children.  As Mary Cameron put it, "if there’s not enough money to pay for it things have to go."  The real underpinning reason for children's centres closing their doors lies in central Government's decision-making.  Have the best interests of children been to the forefront, a primary consideration, for central Government decision-makers when imposing these cuts? Campaigners, and councils themselves, may wish to consider whether to direct some of their fire to central Government, as the focus currently is upon individual local authorities faced with the financial fall-out from centralised decisions.