5.60R (T) v Sheffield CC [2013] EWHC 2953 QB, (2013) 16 CCLR 580
Too fine a level of analysis risks descending into an impermissible appeal of the merits
Facts: Sheffield decided to stop paying subsidies to nurseries in relatively deprived areas where there was little prospect of making up the shortfall from fees charged to parents, so that some of the nurseries might well have to close. A judicial review was brought on the basis that Sheffield had failed to consult lawfully, had not discharged the PSED and had acted unlawfully in other, ancillary ways.
Judgment: Turner J held that Sheffield had acted lawfully. In relation to the PSED, he said this:
55. I am of the view that the defendant in this case fulfilled its duties under section 149. In doing so I bear in mind the observations of the Court of Appeal in Bailey in which Davis LJ held at para 102:
‘Councils cannot be expected to speculate on or to investigate or to explore such matters ad infinitum; nor can they be expected to apply, indeed they are to be discouraged from applying, the degree of forensic analysis for the purpose of an EIA and of consideration of their duties under s149 which a QC might deploy in court. The outcome of cases such as this is ultimately, of course, fact specific … All the same, in situations where hard choices have to be made it does seem to me that to accede to the approach urged by Miss Rose in this case would, with respect, be to make effective decision-making on the part of local authorities and other public bodies unduly and unreasonably onerous.’
56. In R (Greenwich Community Law Centre) v Greenwich London Borough Council [2012] EWCA Civ 496 Elias LJ held at para 30:
‘I would emphasise the need for the court to ask whether as a matter of substance there has been compliance; it is not a tick box exercise. At the same time the courts must ensure that they do not micro-manage the exercise.’
57. In R (Branwood) v Rochdale MBC [2013] EWHC 1024 (Admin), Haddon-Cave J remarked at para 60:
‘In my judgment, the claimant’s argument runs counter to the direction of travel of authorities in this area: which is to discourage challenges based on minute criticisms of EIAs, or elaborate inquisitions of possible permutations of equality … It is not the law that public authorities must set out s149 verbatim, collect, analyse and record each scrap of data with regard to every single protected group and then analyse each such group seriatim against every limb of s149, looking at endless permutations and combinations. A sense of proportionality and reality is required. The basic test is simple: whether ‘in substance … due regard’ has been had to the relevant statutory need. This straightforward test should be the touchstone, both for those seeking to fulfil the PSED duties and those seeking to challenge.’