Council fends off JR challenge over future of advice services

Newham Council has defeated a judicial review challenge over plans for the shape of future advice services in the borough.

In the case of Siwak, R (on the application of) v London Borough of Newham [2012] EWHC 1520, the claimant was a Roma woman with multiple problems who in the past had received assistance from the Roma Support Group in relation to welfare benefits, housing and debt. 

In July 2011, Newham decided to withdraw funding for advice services provided by the voluntary sector through the Newham Advice Consortium, of which the Roma Support Group was a member. The council has not resumed that funding.

However, the judicial review challenge was not about that decision but about the mayor in Cabinet’s decision on 17 November about advice services in the future.

Under its Information, Advice and Guidance (IAG) project, Newham planned to provide three tiers of service under a new model for advice. This would see:

  • Online self-help information, advice and guidance on debt, benefit and housing issues for residents able to self help;
  • Direction from council officers, where required, in using the online self-help service;
  • A one-to-one problem solving package advice service (tier 3) for residents where council officers “deal with immediate crises and work with clients to identify root causes of problems, address these problems and enable future self-help”. Access would be by referral only, from designated council services and external organisations.

The claimant challenged the 17 November decision that future problem solving tier 3 advice services would be provided by council officers, and would not include, as previously, any advice commissioned from the voluntary sector.

She also challenged what she contended was an implied decision arising from that decision, that there would be a hiatus in face-to-face advice services in Newham until April 2013.

It was the claimant’s case that there was a strategic decision as to the identity of the provider in the model to be developed. The criterion on which a decision was reached was that the service would be provided in-house and not as in the past commissioned from external providers such as the voluntary sector.

The main ground of challenge advanced by the claimant was that, in reaching its decisions, the council failed to comply with the public sector equality duty.

But in the High Court Mr Justice Cranston said the difficulty the claimant could not surmount was the reality of what the council decided on 17 November 2011. This was to authorise officers to develop a new service delivery model for the problem solving tier 3 advice service for residents.

A turf war within the council – which had delayed the IAG project by several months – was also resolved, with housing brought within the scope of the model.

“Significantly, the 17 November decision then records that following the development of the new problem solving model ‘the proposal would be brought back to Cabinet for approval by the mayor in consultation with Cabinet,” the judge said.

He added: “Thus the 17 November decision did not itself introduce any new service model.” It was also made clear that other services might be added at a later date, subject to report back.

The judge said it might have been the case that some officers within the council, and perhaps members, had firm views that the voluntary sector would have no role in the future provision of advice services in Newham. This had been evidenced in part by information sent to the Roma Support Group at a meeting in January 2011.

It also seemed from the documentation that the Council 'machinery' was moving towards the introduction of the tier 3 service in the first quarter of 2013.

“The crucial point is that there was no formal decision of the council on either of these matters,” the judge said. “There was the decision of the council on 28 January 201, where the council decided to cease funding advice services from the voluntary sector by the end of July 2011. There was also the decision of 17 November 2011, which ended the turf war within the council about the future of housing services.

“But there was nothing more about the final shape of the tier 3 model. It was to be developed further now that the housing advice problem was resolved. The matter was then to revert to the mayor in cabinet for further decision.”

Mr Justice Cranston pointed out that the January 2011 decision to cease funding had not been challenged in the proceedings. “Proposals were certainly being formulated and it was taking longer than anticipated because of internal council disagreements. Importantly, however, the process was continuing.”

The judge added that a draft Equality Impact Assessment (EIA) was being prepared and had reached its sixth draft by the November 2011 meeting. The assessment included the different options of council and voluntary sector provision and their impacts on the protected characteristics set out in s. 149 of the Equality Act 2010.

The preparation and contents of the EIA put paid to criticism by reference to guidance produced by the Equality and Human Rights Commission (EHRC). It showed that equality analysis was being engaged in with policies under formulation.

Mr Justice Cranston said that for the court to interfere at this stage would be to breach the “sensible injunction” of Elias LJ in the Greenwich Community Law Centre case that courts should not micromanage the decisions of public authorities. It would also constitute an “unwarranted interference into local democratic processes”.

The judge acknowledged that the EHRC suggested early engagement with those affected and engagement at each stage of the process. “However, it seems to me that consultation was premature in this case when the tier 3 service was only in the process of being formulated, was uncosted and was still undefined as to the scope of services within it.”

Mr Justice Cranston added: “Consultation at that stage of the proposals would have been wasteful as to resources and unhelpful, possibly misleading, in outcome since it would have been based to an extent on conjecture.”

In any event the report to the 17 November meeting made clear that any advisable consultation would follow when the scope of the tier 3 advice was determined, he said.

Two other grounds were advanced by the claimant and rejected by the judge: a failure to consult and a failure to take into account a relevant factor.

The judge said that in his view there was no obligation to conduct a public consultation before 17 November. “As already indicated it would have been impossible, at that stage, to have engaged in a meaningful dialogue with the public when sufficient detail of the proposals had not been fleshed out.”

As there was no need to consult the Best Value statutory guidance and the Newham Compact did not arise, Mr Justice Cranston said. The judge said he had been assured that Newham’s intended consultation would comply fully with them when it was conducted.

On the third ground, the claimant argued that Newham had failed to take into account the potential advantages of commissioning external advice services and the Best Value guidance issued by the Department for Communities and Local Government.

“In my view this head of challenge goes nowhere, since there was no decision choosing between adopting an in-house new service model and commissioning services from the voluntary sector,” the judge said.

The judge pointed out that the council had made it clear – via the deputy mayor in consultation with Cabinet – on 15 March 2012 that the proposed new service model might include advice services being provided by independent organisations within tier 3 of the IAG model and that such a decision would be the subject of a formal consultation.

Mr Justice Cranston concluded that the challenge to the 17 November 2011 failed. He also said that even he were wrong in reaching that conclusion, in his view the decision of 15 March 2012 cured any defect in the council’s decision-making and rendered the proceedings “pointless”.

“That 15 March decision made clear that no decision had yet been taken and that any such decision would be the subject of formal consultation,” the judge added.

Philip Hoult

Slide background