Update: local government

There is widespread dissatisfaction among local authorities with the way in which the Government is handling the move towards unitary authorities, and the matter certainly isn't helped when the consultation process is undertaken in a confused and careless manner, as illustrated in the recent cases of R (Breckland DC and Ors) v The Boundary Committee for England [2008] EWHC 2929 (Admin) and R (East Devon DC) v The Electoral Commission, Boundary Committee for England [2009] EWHC 4 (Admin).

In 2006, the Government published the White Paper 'Strong and Prosperous Communities' which argued that the two-tier system of district and county councils in the shire areas should be replaced with single tier unitary authorities. The legislation required to implement that policy was contained in Part 1 of the Local Government and Public Involvement in Health Act 2007.

Prior to the enactment of the 2007 Act, the Secretary of State issued an invitation to local authorities to submit proposals for unitary local government. The invitation set out the terms on which proposals were invited and guidance to which councils should have regard when submitting a proposal.

In the Breckland case, Norwich City Council responded to the initial invitation. However, the Secretary of State was not minded to accept that proposal and referred the matter to the Boundary Committee with a request that the proposal be reconsidered with a view to the committee making an alternative proposal.

The claimants, as local authorities liable to be abolished if this were to go ahead, were dissatisfied and sought judicial review, contending that the committee had:

(a) unlawfully failed to consult;

(b) departed from the guidance originally issued by the Secretary of State; and

(c) refused to consider the merits of the current two-tier system.

Enhanced scrutiny

Cranson J allowed the application in part. What was at stake for the claimants was their very existence and, for that reason if no other, strict compliance with the law was necessary. In particular, the actions of the committee would be subject to 'enhanced scrutiny' and not merely a Wednesbury review.

There was '“ as a matter of law '“ no obligation to consider the merits of the current two-tier system when considering possible reforms to the structure of local government. There had also been adequate compliance with the guidance. However, the consultation process had been flawed.

The committee was obliged to consult in respect of the affordability of any alternative proposals for unitary local government in the area. While it had attempted to do this, it had not given sufficient time for consultees to respond and for the committee itself to consider those representations.

The challenge in East Devon was similar. An initial proposal from Exeter City Council had been received by the Secretary of State and referred to the Boundary Committee for advice as to whether or not it would be possible to have a unitary authority for all or part of Devon. The claimant local authority sought judicial review of the committee.

There was a significant degree of overlap between the two cases, save that in East Devon, it was also argued on behalf of the authority that the committee:

(a) had the power to publish and consult on more than one possible model for unitary government in any particular area;

(b) was obliged to consult not just the relevant local authorities and other technical experts, but also the public as a whole;

(c) should have considered whether or not to recommend the original proposal made by Exeter City Council.

On the additional arguments, Cranson J held that the committee did have the power to make more than one proposal and had misdirected itself insofar as it had suggested the contrary. However, that did not entitle the claimants to an order quashing the committee's decision to accept the Secretary of State's request to consider whether or not it was possible to have a unitary authority for all or part of Devon. Rather than start afresh, the committee should 'consider with care' whether it should make more than one proposal for Devon.

Adequate consultation

It was also accepted that the committee was obliged to consult the public as persons who may be interested in their proposal. It was no bar to consultation that the matters were complex. The consultation process had to involve the public as a whole and could not be restricted to a narrow list of 'experts'.

However, that did not mean that it was inappropriate to use 'opinion leaders', such as local authorities, as the basis for that consultation process. In the instant case, Cranson J was satisfied that there had been adequate consultation with the public, although he expressed the view that the committee may well 'modify its approach in the light of lessons learnt from the current exercise'.

He was also satisfied that, as a matter of fact, the committee had resolved not to pursue the original proposal any further. Accordingly, the application for judicial review was dismissed.

The decision that the court should apply 'enhanced scrutiny' to the matter is significant. On one reading of the decision, this 'enhanced scrutiny' comes about because the local authorities, as democratically elected bodies, were entitled to a degree of respect and deference that would not be afforded to any other party seeking judicial review.

However, it may be that the point goes further than that. In both East Devon and Breckland, Cranson J was clearly alive to the fact that it was highly likely that the claimants would ultimately be abolished and their functions merged into a new unitary authority if the judicial review applications failed. In this context, could it be said that, for example, a charity whose funding was being withdrawn so as to imperil its continued existence would also be entitled to ask a court to apply 'enhanced scrutiny' to that decision?

It is also difficult to square a duty to consult the public '“ a duty which extended to matters where the public may not be able to make any meaningful comments due to the technical nature of the matters involved '“ with the view that consultation could also be carried out through 'opinion leaders'. Surely the Boundary Committee was either obliged to consult the public or it was not? The judgments also seem to indicate that a failure to give adequate time for the consideration of any responses to the consultation process is a more serious defect than a failure to consult in the first place, which is a surprising conclusion to say the least.

Children in need

R (Liverpool CC) v London Borough of Hillingdon and AK (interested party) [2009] EWCA Civ 1702 concerned two local social services authorities that were in dispute over which of them should be providing services to AK.

AK was a Pakistani national. On 8 April 2008 he arrived in the UK illegally and claimed asylum in Liverpool the next day. Liverpool carried out an 'age assessment' in order to ascertain what '“ if any '“ services they were obliged to provide. AK contended that he was 15 years old, but Liverpool found him to be 18 and, thus, an adult. He was then given into the care of NASS (the National Asylum Support Service). The NASS then accommodated him in Liverpool before moving him to a detention centre in the London Borough of Hillingdon.

AK's asylum claim was dismissed on 28 April 2008 and he appealed. During the currency of the appeal an issue arose as to his age. He was assessed by a Dr Birch, who concluded that AK was a child. He was then released and placed in the care of Hillingdon, who arranged for AK to be returned to Liverpool.

Liverpool and Hillingdon were in dispute however as to (a) who had responsibility for AK and, in particular, (b) who should take responsibility for re-assessing his age. Liverpool issued judicial review proceedings seeking a declaration that Hillingdon was under a duty to conduct an age assessment and had acted unlawfully in not accommodating him after his release from the detention centre.

At first instance, James Goudie QC, sitting as a deputy judge, held that Liverpool was the appropriate authority to carry out the assessment and, in particular, that Hillingdon had been entitled to assist AK in returning to Liverpool upon his release from the detention centre.

Liverpool appealed, contending that:

(a) AK had been Hillingdon's responsibility under s.20 of the Children Act 1989 when he was released from the detention centre. That duty had not ended and could not end merely by transporting him to Liverpool;

(b) since Hillingdon had owed the s.20 duty to AK at the relevant time, and had even discharged that duty, Liverpool could not owe the same duty, since a child cannot be owed the same s.20 duty by two or more authorities at any one time;

(c) alternatively, if a s.20 duty can be owed by more than one authority, it had not been owed by Liverpool on the facts of the case.

Duty under s.20

The appeal was allowed, but only (a) was the subject of full argument and judgment. It was clear that AK had initially been within the area of Liverpool and that, having contended he was 15, he had been owed a prima facie duty under s.20 of the Act. That duty had been discharged once Liverpool assessed AK as being 18.

Once AK moved to Hillingdon's area, it was they who would owe any relevant s.20 duty. They had not discharged that duty and had never purported to discharge that duty. Hillingdon had always maintained that it had no responsibility for AK at all. It had taken no steps to meet the s.20 duty. It had not, for example, conducted an age assessment, without prejudice to its primary view that it was not obliged to do so. It had merely talked to AK, found out that he wanted to go back to Liverpool, and arranged for his travel.

Hillingdon had contended that, by talking to AK and ascertaining his wishes, it had been complying with its duty under s.20(6) of the Act to give 'due consideration' to the wishes and feelings of AK. However, on the facts of the case, Hillingdon had not given any consideration to AK's welfare needs, so could not have engaged s.20(6) at all.

Many readers will be aware '“ even if only on an anecdotal basis '“ of local authorities which have been accused of 'dumping' persons such as AK in another local authority area. It is therefore most welcome to see the Court of Appeal saying that local authorities cannot sidestep their s.20 duties merely be sending the 'child' to another part of the country.

However, two points do remain to be dealt with in other cases. The court concluded that, when considering their s.20 duties, the authority will have to be alive to the wishes of the child as to where he or she wishes to be accommodated and, in certain cases, may be able to lawfully conclude that the child should, in fact, be accommodated in another local authority area. The weight to be attached to such views and the mechanics of any accommodation agreement are, one suspects, certain to come back before the courts before too long.

In addition, whether or not a s.20 duty can be owed by more than one local authority to the same child is an 'interesting question' for another day. Rix LJ, in a short concuring judgment, appears to think that it might be possible, particularly when one considers that the 1989 Act starts from the position of ensuring that the needs of the child are met and only then divides that responsibility for meeting those needs between authorities. This is an issue which will have to be resolved before too long.