Not as easy as it looks

The national press has suggested that the recent Boyejo case involving the provision of warden services was a major blow to Barnet’s ‘Easyjet’ model of council services. However, as Peter Keith-Lucas explains, the rhetoric is not supported by the judgement.

According to an article in The Times on 5 January 2010, the London Borough of Barnet is demanding "new flexibilities" in order to be able to introduce its "Easyjet" model of council services, under which only a basic statutory minimum service is provided free of charge but higher levels of service are available for a charge to the service user.

The council's comments appear to be a reaction to its defeat in the High Court in the Boyejo case (R (Boyejo) v Barnet LBC [2009] EWHC 3261 (Admin)) but, as so often happens, the actual judgment does not support the rhetoric.

Barnet (and Portsmouth in a case which was heard at the same time) were seeking to re-structure warden services at homes for people with serious disabilities. In practice, this meant the removal of resident wardens and the provision of mobile staff who could be summoned by alarms. In reality, it was a reduction in the standard of service in order to achieve considerable savings.

Because these were homes for disabled persons, there was particular emphasis on the statutory requirement to consult residents and other affected persons and to have regard to the responses which were received. In each case, the High Court held that the final decision taken without adequate consideration of the authority's duties under the Disability Discrimination Act 1995 to reduce discrimination against persons with disability and to seek to enable them to participate fully in normal life, and so overturned the council's decision.

What the court did not do was to consider what the council's statutory duties were in terms of the minimum level of service which would constitute performance of their statutory obligations. If the court had done so, it would have been very useful in determining a base level of service, above which Barnet could then charge service users for any extra service. Had this been what the court decided, then Barnet might have been justified in saying that this set the bar too high and was unaffordable for cash-strapped councils. That might have justified a call for new legislative flexibilities - but that is not what the court judgment considers. So the rhetoric from the council appears not to be supported by the judgment.

By way of background, ever since Charles I's attempt to levy a new tax – Ship Money – to fight the Dutch, and his attempt to arrest Hampden in the House of Commons, it has been a principle that any charge by a public authority is a tax and requires the express statutory authority of Parliament. Many statutes give local authorities a specific power to charge. Interestingly, some social services legislation provides a wide discretion to charge service recipients provided that the charge to an individual service recipient is not more than it is reasonably practicable for him/her to pay. The general power to charge for services is contained in s.93 of the Local Government Act 2003, but specifically does not apply where the authority is under a duty to provide the service to that individual – so it only applies to "discretionary" services.

So a court judgment on exactly what level of service it was mandatory for the authority to provide, and what additional services were discretionary, would be of great interest. But this decision is not that case.

Peter Keith-Lucas is a local government partner at Bevan Brittan.