“It is a good time to think about using the law to challenge local authority cuts.”
Local authorities have to set their budgets by 11 March (it’s in Local Government Finance Act 1992 s32(10)) so this time of year is when decisions are made about changing spending, to come into force from the beginning of the financial year in April.
The enormous funding cuts from central government to local authorities usually mean one thing: reductions in services. Some areas are hit much worse than others but everyone suffers from the cuts in services, which can, of course, be far more costly to society. It is therefore a good time to think about using the law to challenge cuts. Every budget season triggers a number of judicial reviews alleging that local authorities have acted illegally by failing to comply with the public sector equality duty in Equality Act 2010 s149, though it’s hard to say how many succeed.
When considering such a challenge, the starting point is to realise that it will inevitably be difficult. Where parliament entrusts a local authority with making a decision, the court will start by assuming the power has been used correctly. It is not enough to show the cut was unreasonable or will have a horrific impact on people: you have to show it was done unlawfully. However, bear in mind that few judicial reviews get as far as a final, contested hearing. The relatively small number of successful court decisions masks the fact that a properly focused legal action can bring effective results.
When I worked at Sheffield Law Centre, I was particularly pleased with the result of a challenge to a cut in concessionary fare travel on buses, which settled soon after we issued proceedings in the High Court. The local passenger transport authority (not the local council) decided to cut the additional concessions it funded above the minimum standards applied nationally. This would have meant disabled people could no longer rely on travel concessions before 9.30 am, impacting on their ability to get to work, as well as caring duties, training, volunteering and medical appointments.
Officers had carried out some degree of analysis of the equality issues. However, the relevant material did not find its way to the elected members who had to make the decision. While the councillors expressed sympathy in general terms at a well-attended public meeting, I argued that they simply did not have the right information to make a lawful decision.
Fortunately, the authority’s solicitor understood the argument and we reached settlement, reinstating the concessions for disabled people and bringing significant benefits to over 250,000 travel pass-holders in South Yorkshire. As an added bonus, the authority came away with a better understanding of how the s149 duty worked and what the elected members had to do to comply with it, and considering equality became a mainstream part of its decision-making process. The case was funded by legal aid, although no claim was made as the costs were met by the authority.
A number of challenges to cuts in library services have gone through successfully to full hearings. In R (Green) v Gloucestershire CC; R (Rowe and Hird) v Somerset CC [2011] EWHC 2687 (Admin), for example, library users took their councils to court when they proposed to stop funding over a quarter of their libraries. The decisions were quashed. The judge said the real question was ‘whether there was a conscious directing of the mind by the decision-makers to their obligations under the legislation and in particular to the need to exercise the duty to have due regard in substance and with rigour and based on sufficient information, appropriately analysed’ (para 130). The difficulty with such claims is that, ultimately, a lot depends on the facts as they appear to the judge hearing the case on the day. It is therefore very difficult to predict any outcomes.
One last thing to consider is that the public sector equality duty is all about process, not final outcomes. The court will not make decisions that belong to locally elected councillors. A good legal challenge needs to be accompanied by a public campaign so that, following any legal success, the authority comes to accept a result that is popularly supported.

About the author(s)

Description: Douglas Johnson - author
Douglas Johnson is a discrimination specialist and a consultant. He is executive member at Sheffield City Council for climate change, environment and...