One of a kind

Outsource iStock 000007727531XSmall 146x219Claire Booth reviews the recent High Court ruling where a local resident sought to challenge a council's outsourcing programme.

In R (Nash) v Barnet LBC; Capita Plc, EC Harris LLP and Capital Symonds (Interested Parties) [2013] EWHC 1067 (Admin) (Admin Ct) N, a resident, applied for judicial review of one decision and one impending decision by the council to outsource to private sector organisations a high proportion of its functions and services under its One Barnet programme.

The contested decisions related to the award of the outsourcing contract and were taken (or were to be taken) in December 2012 and January 2013. In 2010/11 the council had taken decisions that marked the formal beginning of the procurement process leading to the contract award decision.

N claimed that the council had not complied with its consultation obligations relating to the decisions and had failed to have due regard to its Public Sector Equality Duty (PSED) under s.149 of the Equality Act 2010. She also contended that if the council entered into the proposed contracts it would be in breach of its fiduciary duty to council taxpayers. 


The court held, dismissing N's application, that the claim was out of time. If the council was under a duty to consult, it should have consulted prior to the decisions taken in 2010/2011 to proceed with outsourcing and to initiate the procurement procedures accordingly; and any breach of that duty crystallised when those decisions were taken without any consultation having occurred. The 2010/2011 decisions plainly constituted distinct substantive decisions and had immediate legal effect.

The decisions made in December 2012, or impending in January 2013, were, or would be, different decisions, namely to award a particular contract to a particular contractor. On that basis, it was clear that N's challenge was in truth to the earlier decisions, on grounds that existed from the moment that they were made. The challenges on PSED and fiduciary duty were similarly out of time. 

The judge was not prepared to extend time - the proceedings were brought 18 months or more after they should have been. The council had been proceeding on the basis that the decisions were lawful, and it would be contrary to all principles of good administration for that basis now to be put in doubt and would also risk considerable wasted expenditure.


Even if the application for judicial review had been made in time, the council would have been held to have been in breach of its consultation obligations in respect of the 2010/11 decisions. However, the court would not necessarily have quashed those decisions or the December 2012 decision as it would have wished to consider seriously whether even if the claim was in time, it would be right to withhold relief.

Nor would the council have been in breach of its PSED: the question for the court was only whether the council had paid due regard to the issue, which it had done. It was for the council, not the court, to judge whether the provisions of the contract adequately addressed the interests of groups with a protected characteristic and its assessment could only be challenged if it fell outside its wide discretion. 

On the issue of breach of fiduciary duty, the court would have refused permission on the merits even if the claim had been within time as the evidence did not establish the kind of reckless disregard of the principles of financial planning or management that was necessary to make good such a claim. 

Claire Booth is an Associate Professional Support Lawyer at Bevan Brittan. She can be contacted on 0874 194 1705 or byThis email address is being protected from spambots. You need JavaScript enabled to view it.This email address is being protected from spambots. You need JavaScript enabled to view it.