The High Court has ruled that a decision by West Berkshire Council to cut funding to several charities that provide short breaks for disabled children was unlawful.
In a judicial review hearing on 22 July, Judge Elizabeth Laing ruled that West Berkshire councillors had not been given the legal advice they needed when they decided to stop the funding. This meant they could not have considered the council’s legal duties carefully enough, she said.
The council has funded short breaks for disabled children through contracts with several local and national voluntary organisations since 2008 and by 2015/16 was providing breaks to between 350 and 400 children.
In March, the council decided to cut this funding after being hit with a 44 per cent cut in central government funding – the third-largest cut to any unitary authority, according to court papers.
After two mothers of affected children were granted permission to seek a judicial review of the decision, the council revisited the issue in May, but decided to press ahead with the cuts.
Laing ruled that although the councillors had been told about the council’s statutory obligations, particularly its public sector equality duty to ensure disadvantaged groups are treated fairly, when they made the initial decision in March, they had not been given the necessary advice to ask themselves the right questions about who would be affected by the cut.
In her judgment, Laing said: "They were directed to look at that material in a way that did not help them to focus on the right question, but, instead, told them to focus on an irrelevant – or, at best, only partly relevant – question."
She said she believed both decisions should be quashed, because she did not believe it was "highly likely" that if all the information had been available in the first place councillors would have made the same decision.
Emma Dowden-Teale, a senior associate at the law firm Bates Wells Braithwaite, said the case could also provide support for charities and other potential claimants who were concerned when the "highly likely" test was introduced in judicial review cases last year.
"When the ‘highly likely’ test came into force, there was some concern that it could mean that, even if defendants didn’t think about a decision properly at the time, if they were highly likely to have made the same decision anyway they would effectively be excused," she said. "This case demonstrates that that’s not so."
Dowden-Teale added that the case was also a warning that that public sector equality duty and other legal considerations needed to be considered properly, otherwise they would be open to challenge by charities and others.