Kevin Curley: I was wrong - public law challenges do still work

A local action in West Berkshire has changed the mind of our columnist

Kevin Curley
Kevin Curley

Ten years ago the Public Law Project and Navca began a programme of training in public law for local voluntary sector leaders. It was accompanied by help to challenge the illegal decisions of local public bodies, mostly local councils and clinical commissioning groups. More than 4,000 local leaders took part over six years. Most used their new knowledge to challenge local statutory bodies to use the Compact more effectively and to insist on compliance with the public sector equality duty.

Under the pressure of local funding cuts, an apparent loss of faith that the Compact makes any difference and the closure of the training programme after six years of Big Lottery Fund support, it seemed to me local legal challenges were long gone. So I was pleased to see a successful action in West Berkshire last year. The local Mencap and Crossroads Care Oxfordshire supported a successful judicial review on behalf of two disabled children against West Berkshire Council. This protected £386,000 used to pay for short breaks for 80 families. Leila Ferguson, chief executive of West Berkshire Mencap, told me: "Short breaks for disabled children are vital for keeping families together. Parents get some respite, siblings get precious time with their parents and everybody benefits."

The High Court judge ruled that the council acted unlawfully because it failed to comply with its best-value duty and the statutory guidance that says "authorities should seek to avoid passing on larger reductions to the voluntary and community sector than they take on themselves". Alex Rook, partner with Irwin Mitchell solicitors, explained: "This is the first case to successfully rely on the best-value duty in the courts, confirming that a failure to comply will lead to the courts quashing the decision." But West Berkshire ran its consultation again and in September decided to cut funding from £386,000 to £163,000.

Some say we should not make legal challenges that force councils to spend scarce resources defending their decisions. Catherine McLeod, chief executive of Dingley's Promise, another Berkshire provider of short breaks, said: "It's vital the third sector stands up to government, but this should be balanced by working with local authorities. In this case the council was found only to have come to the decision in the wrong way." But Neil Cleeveley, chief executive of Navca, said the scale of cuts forced on local government results in ill-considered decisions: "We encourage charities to be aware of public law and prevent this sort of thing happening, but where necessary to challenge unlawful decisions."

Public law is one of the few tools we have to defend voluntary sector services in austerity. We owe it to the people we serve to use it when there is a chance to save a service from an illegal decision to cut it.

Kevin Curley is a voluntary sector adviser

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