Philip Havers KC and Christian Howells represented three children and one parent in a claim for judicial review of the decision of Hillingdon London Borough Council to cease all of its nursery provision in the county.
On 4 August 2022 the Leader of the Council, using his emergency powers, decided to cease provision of all of the Council’s early years childcare, without any prior consultation. The decision was to be effective as of 31 December 2022. The Council ran 3 early years centres, two of which were co-located with children’s centres. Many of the children who attended were from disadvantaged backgrounds and/or vulnerable children, as those children were prioritised at the centres. Further, the centres made childcare available at rates which were much reduced compared to the local private provision.
The Claimants argued that:
- The decision to use emergency decision making powers was contrary to the Council’s constitution and therefore in breach of section 9D of the Local Government Act 2000;
- The early years centres formed part of the children’s centres and there was a statutory duty to consult prior to any significant service change, pursuant to section 5D of the Childcare Act 2006;
- The Leader failed to have due regard to the public sector equality duty (section 149 of the Equality Act 2010) because the officer’s report and the equality impact assessment did not: (i) identify mitigation in relation to the identified impact on children; and (ii) did not identify the negative impact on single mothers;
- The Leader failed to comply with the duty to improve the welfare of children in section 1 of the Childcare Act 2006 and failed to comply with the duty to promote the welfare of the child in section 11 of the Children Act 2004 because the closure of the early years centres would negatively impact upon children; and
- The Leader failed to have regard to all material financial considerations, in that the officer’s report did not provide information in relation to ongoing staffing costs, premises costs and the cost of providing free childcare in the private sector.
Before the claim was issued, the Council “paused” the decision because it had to consider a petition signed by thousands of residents. However, it would not give any assurances about how it would make decisions in the future. When the claim was issued, the Claimants sought an interim injunction preventing the Council from implementing the decision until the outcome of the claim. In response to the application for interim relief, the Council confirmed that it was withdrawing the decision and gave an undertaking to consult before any new decision. On that basis, the proceedings were settled.
The Council’s Cabinet has since formally withdrawn the Leader’s decision.
The outcome of this claim is reward for the tenacity of the parents and residents of Hillingdon and reflects how highly they regard the Council’s early years provision.
The judicial review has been featured in the press: