High Court quashes decision by Birmingham CC to end funding for legal advice services

Birmingham City Council has become the latest public authority to have a decision to cut or terminate funding successfully challenged on the grounds that it had breached its equalities duties.

In Rahman, R v Birmingham City Council [2011] EWHC 944, the five claimants challenged a decision by the council’s Cabinet on 29 November 2010 to end funding for Legal Entitlement Advice Services (LEAS) they used pending new commissioning arrangements coming into force in the summer of 2011.

The claimants were variously users of the St James Advice Centre, the Chinese Community Centre and the Birmingham Tribunal Unit. Evidence was filed saying that withdrawal of funding had led to a severe reduction in the services that could be offered to the three organisations’ client communities as well as the issuing of redundancy notices to staff.

In the High Court Mr Justice Blake said he accepted the claimants’ submission that the November 2010 decision failed to have due regard to public sector equalities duties (PSEDs) since they were not in the minds of all the decision makers taking the decision. He also accepted that a fresh decision taken in March 2011 had also failed to have due regard to those duties.

The judge said: “The November decision is clearly defective because there is no evidence to suggest that each of the decision makers were aware of the duty and how it was engaged in these decisions at the time they took the decision. The inference from the absence of reference to it in the reports is that it forms no part of the material consideration even if Councillor Khan were aware than an EINA (Equality Impact Needs Assessment) had been undertaken. I note that there was no submission to the contrary deployed by the defendant.”

Mr Justice Blake said the position was different with respect to the 14 March decision. “By this stage I accept that each of the decision makers was aware of and had their attention drawn to the EINA and the need to take it into account. However, in my judgment that decision was also defective for two essential reasons, namely that there were substantial defects in the EINA that had been prepared in November 2010 and secondly that the duty is not merely to have regard to the EINA but to have regard to the PSED and the particular needs spelled out earlier in this judgment.”

The judge said that some relief should be granted. “Even where the context of decision making is financial resources in a tight budget, that does not excuse compliance with the PSEDs and indeed there is much to be said for the proposition that even in the straitened times the need for clear, well-informed decision making when assessing the impacts on less advantaged members of society is as great, if not greater.”

However, Mr Justice Blake decided not to quash the decisions that led to the termination of funding to all 13 LEAS. The judge gave a number of reasons for this, including that although ten other agencies were served as interested parties, none had filed evidence of the impact of the decision on them or had indicated a wish to be heard in support of such wide-ranging relief.

“The impact on other agencies of the funding cuts is not known and therefore the impact on their service users cannot be known, therefore a poor evidential base for the application of the PSEDs is lacking in their cases,” he added.

The judge therefore concluded that no relief other than the general declaration should be given that would have impact wider than the three service providers with whom the five claimants were concerned.

Mr Justice Blake said he appreciated that continued funding of the three services would cost Birmingham £25,000 a month and that this had significant budgetary implications, and that two months was likely to be the shortest extension of funding given the ‘purdah period’ ahead of elections. However, he said this was not enough to deter him from granting relief.

The judge said his intention was to ensure that current funding for the three organisations should continue until the first of either recommissioning of services is operative or a lawful decision to terminate funding before recommission is taken having regard to the PSEDs.

Philip Hoult