Challenging childcare cuts through ‘sufficiency’ duties – a key case

by stevebroach

I have blogged previously about the right to childcare for disabled children. Since I wrote that post, I have come across a great judgment in a case about cuts to nursery provision in a Welsh local authority. So this is a follow-up post to show, once again, that judicial review is a real remedy when unfair and unlawful cuts are made to public services.

The case is R (West and others) v Rhondda Cyon Taff County Borough Council [2014] EWHC 2134 (Admin). The issue in the case was the Local Authority’s decision to stop providing free full time nursery education for all three year old children, instead funding 15 hours a week. This is important – because it was not a case where the Local Authority got the law wrong about their minimum obligations to individual children, but instead one where the court intervened to stop a cut where there had previously been a more generous level of service than the absolute minimum required.

It was no doubt also highly important to the decision in West that the termination of full time nursery funding was going to be severely detrimental to vulnerable children. The Judge noted that in addition to losing the childcare, ‘the loss of this full-time provision will also result in the termination of free school meals and free school transport for the children concerned’ (para 2). The expectation was that 3,300 children and their families would be affected.

The challenge was brought on five legal grounds. Two failed; the decision was not taken in breach of the public sector equality duty in section 149 of the Equality Act 2010 and there had been no failure to have regard to the duties concerning child poverty under the Children and Families (Wales) Measure 2010 (this covers ‘child poverty, play and participation’ in relation to children in Wales and probably merits a blog post of its own).

The three grounds of challenge which succeeded were all linked specifically to the provision of childcare or nursery education. The Local Authority was found to have breached the following statutory provisions:

  • Section 118 of the School Standards and Framework Act 1998, which requires Local Authorities in Wales to secure that ‘the provision…of nursery education…is sufficient for their area’. (NB – the website has not been updated since section 118 was amended by the Childcare Act 2006 so that it only applies in Wales, not England).
  • Section 22 of the Childcare Act 2006, which states: ‘A Welsh local authority must secure, so far as is reasonably practicable, that the provision of childcare…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’. The equivalent duty for English local authorities is found in section 6 of the Childcare Act 2006. As I emphasised in my previous post, both section 22 and section 6 contain a specific requirement on local authorities to have regard to the need for the ‘provision of childcare which is suitable for disabled children’.
  • Section 18 of the Children Act 1989, which requires local authorities to provide ‘such day care…as is appropriate’ for children ‘in need’ within their area who are under five and not yet attending school. Children ‘in need’ are defined in section 17(10) of the Children Act 1989 and include all disabled children; see section 17(10)(c) and (11).

These three duties have one important feature in common – they are all what can be termed ‘sufficiency’ duties, in that they require local authorities to have a ‘sufficient’ (or in the case of section 8 of the Children Act 1989 an ‘appropriate’) level of service in place. Parliament has become increasingly fond of sufficiency duties – they seem to be the way in which a balance is struck between the desire to achieve minimum standards and the need to allow flexibility in how local areas meet needs. However it can be argued that they do not strike the balance in the right place – because as long as the local authority has some of the required service, the court is unlikely to want to interfere with its assessment of whether that level of service is ‘sufficient’.

West shows that this analysis is not always correct. The primary error made by the local authority in West was to fail to demonstrate a proper understanding of these duties. In relation to section 118 of the School Standards and Framework Act 1998, para 38 of the judgment cites from the relevant council report, which stated that ‘our statutory obligation is to provide all children with ten hours of nursery education per week…’. While this reflected the guidance given on individual cases, it ignored the broader duty to secure ‘sufficient’ nursery education and childcare. This error was not remedied elsewhere in the materials. As the Judge held at para 44:

If members are not informed of their statutory duties then there is a real risk they will adopt the wrong approach when they come to consider an issue such as securing the provision of sufficient nursery education. That is, in my view, what happened in the present case. The Council did not ask itself the question as to what is sufficient nursery education for its area, nor, in my view, can it be inferred that it considered its duty to provide sufficient nursery education when taking the decision.

The Judge then highlighted that whether there is ‘sufficient’ nursery education is linked to what other childcare provision is available – bringing into play the childcare sufficiency duty under section 22 of the Childcare Act 2006. However the local authority’s decision documents did not refer to that duty and the relevant childcare assessments were not in front of the elected members when the decided to reduce nursery funding. As the judge held at para 57, ‘once it is accepted that childcare is a relevant issue to be considered then it has to be considered on the correct basis, that is, on the basis of a correct appreciation of the local authority’s statutory duties in that respect. That being so, proper regard must be had to the statutory guidance.’ This had not been done and so section 22 of the Childcare Act 2006 had also been breached.

The final breach identified by the Judge was the duty to provide ‘appropriate’ day care for children in need under five in section 18 of the Children Act 1989. Again, the problem was that ‘the Cabinet was not referred to its statutory duties under the Children Act and therefore had no statutory framework in which properly to consider the consultation material’. Further, there was no attempt to analyse the impact of reducing nursery funding on children in need (who include, as noted above, all disabled children).

So why does West matter? Plainly it matters because as a result of the judgment over 3,000 young children in a deprived area retain their full time nursery provision, at least until the Local Authority makes a new decision. But I would also suggest it matters more broadly, because it emphasises the strict approach the Court will take to cases where services are reduced or withdrawn in an area where Parliament has imposed a duty to secure a ‘sufficient’ supply of such services.

The reality at present is that services for disabled children are being decimated across the country as a result of local authority funding cuts. Yet there are numerous sufficiency duties that could be used to challenge these cuts. In addition to those covered in West, they include:

So in every case where cuts to services for disabled children are being proposed, the question needs to be asked as to whether the local authority is complying with its sufficiency duties – as well as other relevant duties such as the public sector equality duty. Where, as in West, these duties have not been brought to members’ attention and do not feature in the analysis of the proposals, then the decision to cut the service may well be quashed by the court. It is important to note that the Local Authority’s arguments that quashing the decision would cause chaos did not impress the Judge in West, see para 76.

Disabled people and families who consider that the cuts taking place in their area may be unfair or unlawful – and indeed all groups affected by cuts – need to take legal advice as quickly as possible. Challenges to high level financial decisions need to be brought even more quickly than ‘ordinary’ applications for judicial review; see the discussion of ‘delay’ in West at paras 70-76.

All of these solicitors with expertise in SEN and disability cases should be interested in talking to disabled people and families affected by proposed cuts about the potential to bring a legal challenge – the solicitors in West were Bindmans whose details are on my list.

I would be keen to hear about any other successful challenges to cuts using sufficiency duties, whether or not the case made it to court, in the comments below.