The people versus the cuts (and, as ever, the lawyers will be the winners)
After protests and petitions, campaigners turn to judges to halt spending decisions. Matt Chorley reports on how the taxpayer still picks up the tab
Sunday 05 June 2011
Local councils and their spending cuts are in the dock. After angry street protests and political lobbying failed to halt the swing of the axe to public services, growing numbers of campaigners are turning to the courts to prevent the loss of popular – and often essential – services. An alliance of authors, carers, bus passengers, drivers and solicitors are now waging a legal war through the High Court against the coalition's spending cuts.
From cuts to disability support in Argyle and Bute to the doubling of parking costs in Barnet, from threats to social care in Lancashire to the loss of children's centres in Hampshire, judges are dealing with an unprecedented number of judicial reviews attempting to reverse council decisions.
This increase has prompted critics to question the extent to which judges are interfering in decisions made by elected representatives. Spiralling legal costs – in effect, the taxpayer funds both sides of any case – have also prompted opponents to demand a review of the system.
Councils blame the speed and severity of George Osborne's budget cuts, which slashed central-government
funding for town halls this year by 12.1 per cent, from £28.3bn to £24.9bn. Rushed consultations and a failure to take into account the impact of cuts on the elderly, disabled and mentally ill are the most frequent grounds for legal challenge.
Campaigners opposing the closure of libraries have seized on the technique, with judicial reviews already launched in Somerset, Gloucestershire and Brent. In addition to allegations of flawed consultations, legal experts say the statutory duty to provide a "comprehensive and efficient" library service could be crucial to the success of the cases.
Dan Corey, a solicitor acting for library campaigners in Gloucestershire and Somerset, said the level of cuts was behind the rise. "Judicial review is proving a very useful tool to look carefully at these kinds of cuts and to pick up where councils have just had one eye on their balance sheet and have tried to rush cuts through without consulting properly."
Successful challenges already include a plan by London councils to cut £10m from funding for voluntary groups, in January, and, in March, the High Court ruled Birmingham City Council acted unlawfully over plans to cut care for disabled people. It left the authority with a legal bill of at least £600,000.
Mathieu Culverhouse, from Irwin Mitchell solicitors, which took the case against Birmingham, is pursuing similar cases against Manchester City Council and Lancashire County Council, alongside a judicial review against Blackburn with Darwen Borough Council. He said judicial review was needed where councils took decisions "without regard to the Disability Discrimination Act".
Kenneth Clarke, the Justice Secretary, has warned that the cost of judicial reviews has "exploded" but said any attempt to limit legal aid would create a "complete nightmare". "You are talking about cases where the citizen is challenging the state or one of its agencies – central or local government or a quango – on some administrative decision. It is key that no citizen should be barred from that, so we keep it in legal aid."
However, in some cases the Legal Services Commission is asking for "community contributions" towards the legal bill of some cases, worth up to 50 per cent of costs. In the decade from 1999, the number of applications for judicial review rose from just under 5,000 to more than 9,000 in 2009. The legal aid bill for people pursuing such cases is around £12.5m a year, with public law challenges accounting for around a third of the cost. Whitehall does not keep total figures for the cost of judicial reviews, but the Department for Communities and Local Government alone spends more than £1m a year on contesting legal challenges.
Stephen Grosz, a lawyer from Bindmans, said: "It's a thriving area in law. The economic climate means there have been a lot of cuts and a lot of voluntary services will be challenging these."
However, the growing trend of individuals and campaign groups contesting spending cuts made by local authorities is creating an increased drain on council budgets.
Matthew Sinclair, director of the Taxpayers' Alliance, said judicial reviews are "incredibly expensive" and leave public bodies having to fund both sides of the case. "There is going to be a lot of pressure on the public services because of the crisis in the public finances. Putting additional pressure on them by having money soaked up fighting both sides of these cases is ridiculous.
"There is a legitimate role for judicial reviews, but we need to be very careful that narrow, and ultimately insubstantial, procedural claims are not allowed to block necessary spending cuts. What courts can't do is proactively prioritise between a number of very different needs. Public bodies are increasingly facing that very difficult decision on a day-to-day basis. We need to be careful about the courts getting too involved in these fiscal decisions."
Sir Anthony May, a senior Appeal Court judge, recommended the Government consider removing automatic legal aid in cases that are seeking reconsideration of previously dismissed appeals, particularly in asylum cases. "If an economical system could be put in place, where legal aid was available for meritorious claims but not available for claims with no merit, that would be of advantage," he said last year.
The Commons justice committee, in a report earlier this year, urged the Government to consider the idea in the worst repeat cases. Its Lib Dem chairman, Sir Alan Beith, last night said his committee was considering launching an inquiry into the in-creasing use of judicial review. "There could be financial savings if a proper merit test was applied if cases are not going to get anywhere. The impact of judicial reviews is far wider than the actual cases. In one sense, you might say it is fine, because good procedures on how to conduct government are having to be bedded into the system, but at times the amount of time and process it takes can almost be absurd."
York Council has joined other local authorities in mounting a legal challenge to the decision by the Communities Secretary, Eric Pickles, to cut £148m from the revenue support grant nationally. The money relates to academy schools, which will be funded centrally rather than locally. In York, after taking the expenditure savings into account, the council still faces a shortfall of £325,000.
York's council leader, James Alexander, said: "We've worked on the budget the Government gave us, and it's unfair that we should now be told to stand a further reduction in funding, which would result in redundancies and cuts to services that are already scaled back."
Additional reporting by Brian Brady, Paul Bignell, Hana Chambers and Mary Ann Pickford
Judicial review: The tests that flush out nonsensical decisions
Judicial review enables individuals to challenge the authority of a government minister, a local council or a tribunal. Broadly speaking, its purpose is to prevent an abuse of power by the executive as well as ensuring an individuals rights are protected.
Judges have developed a series of tests for measuring the lawfulness of the exercise of executive power. These include: whether the action is legal; whether the procedures are fair; whether individuals have an opportunity to express their views; whether decisions are compatible with conventions signed up to by the UK government; whether a decision makes sense; and whether a decision is rational – or defies logic so that "no sensible person who had applied his mind to the question could have arrived at it". In 1885, the British jurist A V Dicey explicitly proposed that the government should be subject to the common law courts.
Mary Ann Pickford
Rural buses, Cambridgeshire
Jo Green, 42, from Milton in Cambridgeshire
She lives with her six-year-old disabled son in a semi-rural area. She is challenging a county council decision to overhaul public transport services across the county and slash bus subsidies. As a result, Jo, who doesn't have a car, and her son no longer enjoy bus services at night or on a Sunday.
"My little boy is disabled and now he can't go to his youth club, he can't go swimming or to the cinema. There is an autism-friendly screening on a Sunday, but now no bus service to get him there. There are no evening or public holiday services. Lots of people are left with no service. That's very demoralising. You end up being a prisoner in your own home and become isolated."
Adult social care, West Sussex
Patrick Smythe, 46, Don't Cut Us Out Campaign
Patrick is one of three people whose case is being used in the judicial review to represent 4,500 vulnerable people across West Sussex. Under council plans, people like Patrick, judged with "moderate" disabilities, will lose all their care benefits and support. He has been attending Ferring Country Centre for 12 years.
"It's all wrong. I like working here. I would have nothing to do if I didn't have this." His supervisor, Lauren, said: "Patrick likes having a purpose. It would be so damaging if that was taken away." Patrick lives at home with his widowed mother. "If he were to lose his placement at Ferring, it would have major detrimental effects on both of them."
Domestic violence court, Barry, Wales
Kay Quinn, director of Atal y Fro charity
She worked with Vale of Glamorgan Council and Vale MP Alun Cairns to file a judicial review of the Ministry of Justice's decision to close Barry Magistrates' Court after a recent £1.5m upgrade. It serves a large rural area.
"We worked hard to get a specialist domestic violence court here two years ago, and it would be awful if it closed now. Barry is the largest town in Wales. Not to have its own court is appalling. Since becoming a specialist domestic violence court we've seen an increase of a third in the number of such cases brought to court. I'm afraid that if the court closed that number would decrease again."
Sure Start, Hampshire
Catherine Ovenden, 31, mother and head of Hampshire Save our Children's Centres
Sure Start provided a vital service when Catherine suffered post-natal depression. She became alarmed when Hampshire revealed plans to cut 35 per cent of Sure Start's costs, compared with the national average of 11 per cent. She began a campaign for the council to review its plans. She wants Sure Start to be recognised as the "frontline" service it is, and says it is "short-sighted" to cut a service that brings wider benefits to the community.
Magistrates' court, Sittingbourne, Kent
Simon Holmes, 37, Partner, Robin Murray & Co
Solicitors Robin Murray & Co filed a judicial review of Kenneth Clarke's decision to shut Sittingbourne Magistrates Court. Simon and others are challenging the fairness of the consultation process, believing that the Ministry of Justice failed to pay due regard to its obligations under the Disability Discrimination Act.
"Sittingbourne Magistrates is a very busy court. Its utilisation rate exceeds 82 per cent – above the Ministry of Justice's recommendations – and it serves a socially deprived community. Vulnerable members of the community would be forced to travel much further."
Johanna Anderson, 32, Friends of Gloucestershire Libraries
She views the current cuts to library services as disproportionate. The cuts affect deprived areas, and axe all mobile libraries serving rural Gloucestershire. After being repeatedly rebuffed by the council, the campaigners resorted to judicial review. "We've been blocked. The planned cuts were already a done deal before we got the chance to discuss it or vote. Libraries only represent 1.45 per cent of the council's budget, yet 43 per cent of the service is being cut."
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