One of the big cautionary notes that Councils must always be aware of is not only what the status of their documents is, but also how those documents are seen from outside. The most prominent case on this was R (Flatley) v Hywel Dda [2014] EWHC 2258 (Admin) in 2014, where the High Court determined that an NHS planning document from two years prior to a consultation did not support a claim of pre-determination. Now another case has been added to that particular canon.

You may be familiar with the first edition of R (Williams) v Caerphilly [2019] EWHC 1618 (Admin), as we have featured it before when it was before the High Court. Sheena even used it as an example of a case where inadequate risk assessment had caused a successful legal challenge. A quick precis, for those that don’t remember the detail. Caerphilly Council had mooted the closure of the Pontllanfraith Leisure Centre, before suspending their decision in the face of vociferous opposition. They then adopted a new Sports Strategy that involved the reorientation of services to four sites designated as ‘strategic leisure centres’, of which Pontllanfraith was not one. Subsequently they announced the intended closure of Pontllanfraith, before sending the decision out to consultation. Mr Williams, a user of the Pontllanfraith centre, challenged the decision on the grounds that:

1. the adoption of the Strategy was not within the authority of the Council’s Cabinet to take,
2. the adoption of the Strategy was unlawful because it was taken without information as to how much it would cost to implement
3. the decision to adopt the strategy was unlawful because it failed to comply with obligations under the Local Government (Wales) Measure 2009,
4. the Council had failed to comply with the s.149 Public Sector Equality Duty,
5. the Council had failed to consider the option of a community asset transfer.

In the High Court, Mr Williams won his case on the basis of the claim that the council had failed to have due regard to the Public Sector Equality Duty in closing the Pontllanfraith Centre. All other grounds were rejected by the judge. Rather unusually, despite his victory at the High Court, Mr Williams appealed their decision. Although he did not make an appeal on the Public Sector Equality Duty grounds, he challenged the assessment of the Judge on the first three of the other grounds.

In the Court of Appeal, he met with similar results. The judges concurred with Mr Justice Swift and the appeal was rejected.

For consultors, the interest here is not necessarily in the loss of the case, but rather in the discussions of the nature of the decisions being made. One of the key claims of Mr Williams in arguing the first and second ground was that the adoption of the Strategy was a firm decision on providing the four strategic leisure centres for closing, or otherwise divesting the Council of the remaining sites (including the key Pontllanfraith). The Council contended that the Strategy did not in fact make any firm decisions about upgrading or closing any particular centres, and was instead setting out a policy objective to be implemented over a ten year period, highlighting that the Council had been vocally clear that any more detailed decisions would require further consideration down the line. The judges at both the High Court and the Court of Appeal agreed with the Council.

So what is the distinction? Well, had the Strategy been as Mr Williams characterised it, the Strategy might very well have fallen under the responsibility of the full council, as it would have required significant budgetary outlay. This budgetary outlay and any specific closures and openings that it would have involved would likely have incurred obligations for further consultation. As the Strategy was deemed to be only a policy-setting document and not a firm plan with specific recommendations, not only did it not involve obvious budgetary outlay but that the consultation requirements were not as onerous or specific.

The obligation to consult was raised again in the third ground of appeal. The decision to adopt the Strategy, so Mr Williams claimed, fell under the purview of the Local Government (Wales) Measure 2009, by virtue of being an “arrangement to secure continuous improvement in the exercise of its [Caerphilly Council] functions” (s.2). Had it fallen under s.2, then the specific requirement to consult contained in s.5 of the same Measure would have applied, and the consultation undertaken by the Council on the Strategy would have been insufficient. Having watched the case, the debate here was quite fascinating and drew in comparative reasoning from the similar “best value” provision in the Local Government Act 1999. It is an issue that these judges were not the first to find confusing. Underhill LJ appeared to similarly struggle with it in his reasoning in Nash v London Borough of Barnet [2013] EWHC 1067 (Admin). The key question was whether the duty to secure “continuous improvement in the exercise of its functions” applied at such a granular level, or whether the duty merely applied to a broader appreciation of the “exercise of functions”. In the event, the Court decided that the duty applied at a fairly high level, and they agreed with the submission of the Council that it was concerned with the general exercise of the authority’s functions. In his judgment, Males LJ wrote:

“It is legitimate in my view to have regard to the consequences of giving the section a broad construction encompassing any measure aimed at improving the exercise of a function performed by a local authority. Such a construction would include a very wide range of local authority decisions, since it can be assumed that (within financial constraints) most such decisions will be aimed at making improvements in the services which a local authority provides” para 69

So what does it mean for consultors? Well, clearly you should be very careful in what you include in Strategy documents, and documents making specific proposals. General strategy documents setting long term goals might not fall under the same strict consultation requirements as their more solid cousins. How do you draw the distinction between the two? Well, this case reinforced the suggestion that if a document contains no specific commitment to spending, it may be more of a strategy document than a specific document for change. It is perhaps notable that in the High Court the judge noted that “the Sports Strategy goes no further than saying that over a 10 year period these facilities should be provided” (para 10, emphasis added). Is it as simple as being the difference between ‘should’ and ‘will’ or ‘would like to’? It seems unlikely, but we may well have to wait for another case to clarify that one. For local authorities, and others who fall under the Local Government (Wales) Measure, and analogous legislation (such as the ‘best value’ duty), you should be aware of the delineation between general improvement and improvement of specific functions, as this might alter your responsibilities to consult.

If you have any thoughts on the judgment, or our assessment of it, please get in touch.