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Welsh council wins Court of Appeal battle over scope of duty to secure improvement

A requirement on councils to consult on service improvements is not so wide as to mean consultations must be held on every decision, the Court Of Appeal has ruled.

In Williams, R (On the Application Of) v Caerphilly County Borough Council [2020] EWCA Civ 296  the court concluded that Caerphilly County Borough Council took a lawful decision to implement a sports and recreation strategy for 2019-29 to which local resident Shane Williams objected.

Under the strategy adopted by the cabinet, the 10 leisure centres would be consolidated to four to save money.

Once the strategy had been adopted, the council commissioned a report on the centre at Pontllanfraith which recommended closure and the cabinet agreed.

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Mr Williams appealed on the grounds that the decision to adopt the strategy was one for the council, not the cabinet, that the cabinet failed to have regard to the cost of implementing the strategy and that the strategy was an “arrangement to secure continuous improvement in the exercise” of the council's functions within the meaning of section 2 of the Local Government (Wales) Measure 2009 which required it to undertake a consultation.

On the consultation point, Males LJ pointed to the vague wording of the law on the point.

He said references to ‘improvement’ the English and Welsh versions both used “very general language and it is hard to know to what it applies”.

Males LJ asked: “When is an authority making an ‘arrangement to secure continuous improvement in the exercise of its functions’, as distinct for example from merely providing a service which it hopes will be better than what existed before?”

He said it was “not easy to discern” when it applied, which was “unfortunate because when the general duty applies, a specific obligation to consult…is triggered”.

Since almost any decision made a council would be aimed at improving services “the result would be that every such decision is subject to an obligation to consult under section 5 [of the 2009 Measure] which could have adverse consequences for the efficiency of local government”.

He dismissed this ground too, agreeing with an earlier judgment that the strategy was not “an arrangement to secure continuous improvement in the exercise of functions”. and it would be wrong to create a statutory obligation to consult in respect of any proposed strategic decision.

Males LJ said that once the strategy was adopted, the future of the Pontllanfraith centre “must have looked bleak” but there was nothing in the strategy that made its closure inevitable “let alone that it would happen in the current financial year so as to involve expenditure contrary to the budget.

“I would therefore hold that the decision whether to adopt the strategy was the responsibility of the executive and not the full council.”

Since the strategy set out broad policy objectives over 10 years it was not irrational for the cabinet to adopt it without insisting on being provided with full financial information, he said.

Mark Smulian

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