UK Supreme Court Blog

EDITORS: Dan Tench, Emma Cross, Zainab Hodgson, Francesca Knight, James Warshaw and Natalie Haefner (CMS)
Hugh Tomlinson KC, Matthew Ryder KC, Nandini Bulchandani and Daniel Rudd (Matrix)

This case concerns cuts enacted by a local council in 2012 and addresses a claim, brought by a ‘qualifying young person’ that, in applying cuts to the local budget, the council of North Somerset failed to have due regard to its statutory obligations to protect young and disabled members within its area of authority.

In particular the case considers the council’s obligations under section 507B of the Education Act 1996,  which requires that a local authority secure certain resources for “qualifying young persons”, and the council’s obligations under section 149 Equality Act 2010,  which requires that the council “advance equality of opportunity between persons who share a relevant protected characteristic”.

The law

Section 507B, among other things, requires that a local authority “so far as reasonably practicable”, secure access for qualifying young persons to “sufficient recreational leisure time activities which are for the improvement of their wellbeing” and “sufficient facilities for such activities”.

Under s 507B(2), “Qualifying young persons” includes (a) those aged 13-20; and (b) those aged 20-25 with learning difficulties.

Section 149 of the Equality Act applies an obligation on public authorities to exercise their functions having due regard to the need to eliminate discrimination and advance equality of opportunity. Of particular relevance to this case is the obligation to “advance equality of opportunity between persons who share a relevant protected characteristic and persons who do not share it” and to “remove or minimise disadvantages suffered by persons who share a relevant protected characteristic that are connected to that characteristic”. Protected characteristics include age and disability.

Facts

On 21 February 2012 the council made the decision to cut its youth services budget for the year 2012/2013. The cuts amounted to £364,793 and, as a consequence, the universal provision of youth services was to be removed with only ‘targeted’ services being available in the alternative.

The cuts affected a youth club called the ‘Escape Club’ which acted to provide services to 11 – 24 year olds with special needs. Mr Hunt – being 22 years of age with ADHD, learning difficulties and behavioural problems – attended the club. He also constituted a qualifying young person for the purposes of the Education Act.

In response to the cuts, Mr Hunt brought a claim that the council had unlawfully failed to comply with either (i) its obligations under s 507B and the accompanying statutory guidance, or (ii) its duties under s 149 Equality Act.

Decision at first instance

The Administrative Court dismissed Mr Hunt’s challenge. The focus of its decision was whether the council members present at a meeting held on 21 February 2012, wherein the decision regarding the cuts was reached, had acted with due regard to their statutory duties. Reference was made to an equality impact assessment which had been prepared, and to whether the council members had had proper regard to this assessment. A second consideration was whether the council had discharged all of its obligations under s 507B: in particular the duty to consult qualifying young persons.

In relation to s 149, the judge found that, had the members made their decision having had regard to the equality impact assessment, they would have satisfied their s 149 duties. Whilst a copy of the assessment was not provided to the members, details of how to access the assessment were provided. The judge inferred that the members would have sought out the full copy of the assessment and would have read its content and thus s 149 was satisfied.

In relation to s 507B, Mr Hunt argued that no proper consultation had been undertaken. The judge at first instance, however, held that whilst no consultation had taken place with qualifying young persons specifically, he “had no doubt that many persons and organisations were given the opportunity to raise issues of concern” and that, as those persons and organisations would have included qualifying young persons, the duty to consult had been satisfied.

Court of Appeal

On appeal Mr Hunt argued that the judge at first instance had been wrong to find that the council members had read the equality impact assessment and that the consultations undertaken were not specific enough to satisfy the s 507B obligations.

The court agreed with Mr Hunt, finding that there was no basis upon which it could be inferred that the members had read the assessments; indeed the provision of a summary of the assessments to the members of the council appeared to negate the likelihood that the whole assessment had been read. The Court of Appeal accordingly held that the s 149 duty had not been discharged.

It was also held that there was not sufficient evidence to demonstrate that the council had taken the steps (required by section 507B(9)) to ascertain the views of qualifying young people.

Having found on all points in favour of Mr Hunt, the Court of Appeal nevertheless dismissed Mr Hunt’s appeal. The reasoning for this was stated to be that, as the budget decision had been made and carried out, and as it would be extremely difficult to reverse – in particular as it would have a retrospective effect on council tax – no relief could be granted and thus the appeal must be dismissed. Having dismissed the appeal, the court ordered that Mr Hunt pay the council’s costs.

Supreme Court

The Supreme Court will consider whether the Court of Appeal was wrong not to grant relief, despite finding that Mr Hunt’s position was correct, and whether it was wrong to order him to pay the council’s costs, when the decision of the lower court was held to be wrong.