Council defeats second judicial review challenge to nursery charging decision

Two mothers have lost a High Court challenge to a council’s decision to stop providing full time nursery education free of charge for three-year-old children.

As a result of austerity measures Rhondda Cynon Taf County Borough Council carried out a review of its services.

On 12 February 2015 its Cabinet decided that free full-time provision for three-year old children would end from September 2015.

Instead they would be offered part-time (half day, 15 hours a week) provision. Full-time (30 hours a week) provision would kick in from the term after a child's fourth birthday.

The claimants each had a child who, without the decision taken, would have started full time nursery education after they had attained the age of three years old.

The mothers had previously successfully challenged a similar decision at Rhondda Cynon Taf in relation to the 2014/15 academic year, with Mr Justice Supperstone holding in the High Court that the councillors took the decision when they had not been provided with a proper account of the council's statutory duties nor had the material required to enable them to effect a proper discharge of their statutory duties.

In October 2014 Rhondda Cynon Taf resolved to consult on a similar proposal in respect of the 2015/16 academic year.

A consultation was held which ran – after being extended to take into account the Supreme Court decision in Moseley – until 30 January 2015.

The claimants commenced proceedings on 16 January 2015. The Cabinet subsequently made the impugned decision.

Two grounds of challenge were advanced:

1. Whether the consultation carried out was inadequate? The main issue was whether, when an authority proposed to cut a service to the public it could do so fairly without providing information about alternatives. In addition, it was contended that: (a) The information provided by the defendant in the consultation was insufficiently fair and accurate; (b) The information provided was flawed because it excluded any reference to the transport consequences of the decision.
2. Whether the defendant was in breach of its duty under section 22 of the Childcare Act 2006 to secure sufficient childcare for working parents?

In Morris & Anor, R (on the application of) v Rhondda Cynon Taf County Borough Council [2015] EWHC 1403 Mrs Justice Patterson rejected the claim.

The High Court judge concluded that the consultation exercise carried out by the council had been “fair in all of the circumstances” and dealt adequately with the issues of realistic alternatives.

On the second ground, the judge said the position had moved on from Mr Justice Supperstone’s ruling.

“On this occasion the issue of childcare was, in my judgment, approached on the basis of a correct appreciation of the local authority’s statutory duty,” she found.

“The defendant asked itself the right question and took reasonable steps to acquaint itself with the relevant information to enable it to answer the questions correctly.”

Responding to the ruling, Cllr Andrew Morgan, Rhondda Cynon Taf’s Leader, said: “While I welcome the decision of the Court in respect of our decision, as I made clear throughout the process, if it were not for the dramatic reductions in funding we have faced, this is not a decision in normal circumstances Cabinet would have considered.

“I am pleased that the Court has recognised that the decision-making processes we adopted in respect of the changes to nursery funding we had to consider were correct.”

Cllr Morgan added: “The decision of [Mr Justice Supperstone] did not question the rationale for our decision, but took issue with the process we had adopted to make this decision. I made it clear that the council would learn lessons from this case and that is why amended proposals around nursery funding were considered.

“When we reconsidered this matter, the Cabinet extended the length of the consultation and the ways in which it consulted with residents and those who would be affected by the proposals. This work, which included a 14-week consultation period, distribution of over 45,000 consultation materials and six public consultation events giving people the opportunity to speak to Cabinet members and officers directly, was recognised in this judgement.”

He said the council accepted that the “very necessary” decisions on service changes had been, and would continue to be, unpopular with the public.

“I have to stress that any proposals for service changes we have taken, and will need to consider in the future, give neither me nor the Cabinet any pleasure; the severity of funding cuts we have faced mean that we have to reduce the level of service offered by the council,” Rhondda Cynon Taf’s Leader said.

“It is therefore vitally important that the council communicates the rationale for the difficult decisions it has to take.”