Sonia Gould & Anor, R (on the application of) v Devon County Council [2026] EWCA Civ 687

[2026] EWCA Civ 687Case No CA-2025-000398
IN THE COURT OF APPEAL (CIVIL DIVISION)
[2025] EWHC 96 (Admin)
ON APPEAL FROM
THE HIGH COURT OF JUSTICE (KBD)
ADMINISTRATIVE COURT
Mr Justice Eyre
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 02/06/2026
Before
LORD JUSTICE BEAN(Vice-President of the Court of Appeal (Civil Division))LORD JUSTICE PHILLIPSLADY JUSTICE FALK
Between
SONIA GOULDAppellants/ALICE JEFFREYClaimantsDEVON COUNTY COUNCILRespondent/
Stephen Broach KC and Eleanor Leydon (instructed by Rook Irwin Sweeney LLP) for Appellants/ClaimantsJonathan Auburn KC and Oliver Jackson (instructed by Devon County Council Legal Services) for Respondent/DefendantHearing Hearing date: 12 March 2026
Approved JudgmentThis judgment was handed down remotely at 2 p.m. on Tuesday, 2 June 2026 by circulation to the parties or their representatives by e-mail and by release to the National Archives..............................
[1]This appeal concerned the lawfulness of a decision (“the Decision”) taken by the respondent local authority (“the Council”) on 13 March 2024 to close the North Devon Link Service (“the Service”). The Service provided drop-in facilities for adults with mental health difficulties in centres owned by the Council in Barnstaple, Bideford and Ilfracombe. The central issue was whether the Council, in not having regard to broad “target” duties under sections 2, 3 and 5 of the Care Act 2014 (“the Care Act provisions”) in making the Decision, thereby failed to take into account mandatory relevant considerations or, alternatively, acted irrationally in failing to take them into account.[2]On 24 May 2024 the appellants, two users of the Service prior to its closure, applied for judicial review of the Decision on the basis outlined above (among other grounds), notwithstanding that they accepted that the Council, in making the Decision, was not exercising a function to which the Care Act provisions applied and did not act in breach of the relevant duties either substantively or by failing to “have regard” to matters specified in section 2(2) or section 5(2) of the Act. The appellants’ argument was that it was nonetheless implicit that the Council must have regard to the sections, alternatively, that it was irrational for them not to do so.[3]On 24 January 2025 Eyre J (“the Judge”) dismissed the claim. In his reserved judgment of that date, the Judge accepted that it was conceivable that a statute might expressly or impliedly identify a broad target duty arising under a different statute as a mandatory relevant consideration when exercising powers under the first statute. He further accepted that there was no reason of principle why the existence of a target duty could not be an obviously material consideration so that not to take it into account would be irrational. But he held that, as the Council was not performing a duty under any statutory provision, there was no express or implied identification of the Care Act provisions as mandatory relevant considerations in making the decision. Further, the Care Act provisions were not obviously material to the Decision.[4]The appellants brought this appeal with permission granted by Falk LJ, challenging the Judge’s conclusions that the Council did not fail to have regard to any mandatory relevant considerations (Ground 2) or any considerations that were obviously material (Ground 3). The appellants also criticised the Judge’s refusal to take into account the evidence of users of the service as to its role in preventing them from going into mental health crisis (Ground 1), primarily in relation to his assessment of whether the Care Act provisions were obviously material.[5]The Council opposed the appeal and further sought to uphold the Judge’s decision on two grounds set out in its Respondent’s Notice: first, that the Judge was wrong to hold that a public law decision may be unlawful for failure to have regard to a target duty where that duty is neither engaged nor breached (save where a statute so provides); and second, that even if the Care Act provisions should have been considered by the Council, it is highly likely that the outcome would not have been substantially different, such that the Judge should have dismissed the claim under section 31(2A) of the Senior Courts Act 1981.[6]I would dismiss the appeal for the reasons set out below.

The essential facts

[7]The Service was set up by the Council in 1992 to provide support and guidance to adults with mental health difficulties but who did not require specialist NHS care. It was not part of the Council’s statutory mandatory social care provision and was not related to the eligibility of its users for care and support under the Care Act 2014, the vast majority of whom did not have any eligible needs.[8]The Service was managed by Devon Partnership NHS Trust (“the Trust”), but the staff at the centres did not have specialist mental health training. The centres facilitated social and leisure activities, such as art classes, coffee mornings and choirs. The Service had also operated at Holsworthy until 2022, when it was transferred to a community-led centre. The Council did not provide or operate a service similar to the Service anywhere else in Devon.[9]The Council ran two consultations as to the future of the Service in 2023 for two main reasons. First, budgetary pressures had caused the Council to review services which it was not obliged by statute to provide, including the Service which cost £485k per year to run. Second, the Council took the view that the introduction of new services by voluntary organisations, funded by the Devon Mental Health Alliance (“the Alliance”) and accessed through GP practices and the wider primary care team, meant that the Service now duplicated other mental health provision.[10]Following the consultations, the recommendation to close the Service was set out in a detailed report of Tandra Forster, the Council’s Director of Integrated Adult Social Care (“the Report”), presented to the Council’s Cabinet on 13 March 2024, together with an Impact Assessment. The Report noted the following: i) the Service had been commissioned to meet social care needs, not to provide support for mental health needs that were too complex to be managed in primary care (para 3.3); ii) in recent years there had been improved accessibility to mental health services and an increased range of support with the introduction of the Alliance, a partnership between six voluntary, community and social enterprise organisations dedicated to providing support for people experiencing challenges with their mental health. The Alliance worked in partnership with the Trust to develop good connectivity across voluntary and community organisations, multi-agency teams and urgent care services as part of the community mental health framework (para 3.4); iii) the Alliance provided support to 1500 people across Devon. Its staff were visiting users of the Service to understand their needs and arrange a “warm handover” to other mental health services (para 3.5); iv) each GP surgery had a Mental Health Multi Agency Team which could offer support and refer people to the Alliance or other community-based services. That team would ensure that available resources were meeting needs, developing future services and strengthening community assets in addressing any gaps in provision (para 3.6); v) the above services were not available at the time the Service started. With specific national funding provided to the NHS to develop community health and wellbeing support, and the new model of muti-agency teams and links with primary care, it was reasonable to question whether the Council should be funding very similar services (para 3.7); vi) the successful transfer of the Holsworthy link service to a community-led centre also helped informed the proposal to close the Service (para 3.8); vii) the recommendation did not affect peoples’ right to support under the Care Act 2014. Care Act assessments would be carried out where eligible needs were identified or a user of the Service requested one (para 3.10); viii) the consultation process had identified concerns about increased risk of suicide or crisis if the Service closed. But the Service was not a crisis service and was not commissioned to provide that support. The Trust had a 24/7 urgent mental health service, which was the gateway to access crisis support and intervention (para 5.10); ix) the financial challenge facing the Council meant difficult decisions to cease services had to be considered. The starting point was to protect services that contributed to meeting the Council’s statutory duties. Although the Council’s Integrated Adult Social Care had funded the Service for over 30 years, the vast majority of people who attended did not have eligible needs under the Care Act 2014 (para 12.4).[11]The Cabinet accepted the recommendation in the Report, resolving that the Service be closed and that the Council work with the Trust and the Alliance to support all users of the Service in their transition to alternative community support over a period of at least 3 months.

The Care Act provisions

[12]The Report did not refer to any of the general duties imposed on local authorities by Part 1 of the Care Act 2014. As indicated above, the appellants’ central contention is that three of those duties should have been brought to the attention of the Cabinet making the decision.[13]The first was section 2, which outlines the “prevention duty”:
“2. Preventing needs for care and support (1) A local authority must provide or arrange for the provision of services, facilities, or resources, or take other steps, which it considers will — (a) contribute towards preventing or delaying the development by adults in its area of needs for care and support; (b) contribute towards preventing or delaying the development by carers in its area of needs for support; (c) reduce the needs for care and support of adults in its area; (d) reduce the needs for support of carers in its area; (2) In performing that duty, a local authority must have regard to — (a) the importance of identifying services, facilities and resources already available in the authority's area and the extent to which the authority could involve or make use of them in performing that duty; (b) the importance of identifying adults in the authority's area with needs for care and support which are not being met (by the authority or otherwise); (c) the importance of identifying carers in the authority's area with needs for support which are not being met (by the authority or otherwise)….” (a) contribute towards preventing or delaying the development by adults in its area of needs for care and support; (b) contribute towards preventing or delaying the development by carers in its area of needs for support; (c) reduce the needs for care and support of adults in its area; (d) reduce the needs for support of carers in its area; (a) the importance of identifying services, facilities and resources already available in the authority's area and the extent to which the authority could involve or make use of them in performing that duty; (b) the importance of identifying adults in the authority's area with needs for care and support which are not being met (by the authority or otherwise); (c) the importance of identifying carers in the authority's area with needs for support which are not being met (by the authority or otherwise)….”
[14]The second was section 3, which sets out the “integration duty”:
“3. Promoting integration of care and support with health services etc. (1) A local authority must exercise its functions under this Part with a view to ensuring the integration of care and support provision with health provision and health-related provision where it considers that this would — (a) promote the well-being of adults in its area with needs for care and support and the well-being of carers in its area, (b) contribute to the prevention or delay of the development by adults in its area of needs for care and support or the development by carers in its area of needs for support, or (c) improve the quality of care and support for adults, and of support for carers, provided in its area (including the outcomes that are achieved from such provision)….” (a) promote the well-being of adults in its area with needs for care and support and the well-being of carers in its area, (b) contribute to the prevention or delay of the development by adults in its area of needs for care and support or the development by carers in its area of needs for support, or (c) improve the quality of care and support for adults, and of support for carers, provided in its area (including the outcomes that are achieved from such provision)….”
[15]The third was section 5, which provides for “the marketplace duty”:
“5. Promoting diversity and quality in provision (1) A local authority must promote the efficient and effective operation of a market in services for meeting care and support needs with a view to ensuring that any person in its area wishing to access services in the market — (a) has a variety of providers to choose from who (taken together) provide a variety of services; (b) has a variety of high-quality services to choose from; (c) has sufficient information to make an informed decision about how to meet the needs in question….” (a) has a variety of providers to choose from who (taken together) provide a variety of services; (b) has a variety of high-quality services to choose from; (c) has sufficient information to make an informed decision about how to meet the needs in question….”
The Judgment The nature and role of the Service

The Judgment

[16]The Judge first considered the appellants’ contention that the Council had misunderstood the role of the Service and therefore had proceeded on a false basis. He recorded that the appellants’ contention, based on numerous witness statements from users, was that in practice the Service operated to prevent users from going into crisis. As such, the appellants asserted, it performed an important role in reducing the risk of suicide or self-harm: [21] and [26]. That was disputed by the Council, Ms Forster’s written evidence confirming that the Service provided neither clinical nor specialist mental health support, the staff at the centres were not employed as mental health specialists and the centres were neither designed nor equipped to provide a crisis service [26].[17]The Judge viewed the above as giving rise to a genuine dispute as to the true nature of the Service and the role it played, stating that he could only conclude that the Council had proceeded on a mistaken basis if he was satisfied that the appellants’ case as to the true factual position was correct [18]. Adopting the approach to determining disputes of fact in judicial review proceedings set out by Chamberlain J in R (F) v Surrey County Council [2023] EWHC 980 (Admin), [2023] 4 WLR 45 at [50], the Judge proceeded on the basis that, as the appellants bore the burden of proving that the true nature and role of the Service was not as assumed by the Council in making the Decision, the Council’s evidence was to be preferred unless it could be shown that it “cannot be correct” [19].[18]Applying that test, the Judge rejected the appellants’ case as to the nature and role of the Service, stating at [28] as follows:
“…[T]he substance of Ms Forster’s evidence about the Service and the reasoning behind the Decision was adequately detailed and addressed matters which were within Ms Forster’s knowledge in light of her role. The account which she gave cannot be dismissed as either inherently unreliable or as being inconsistent with undisputed evidence. [The appellants’] evidence shows that the service users (or at least some of them) view matters differently from [the Council], but that falls far short of establishing that [the Council’s] understanding of the role of the Service is wrong. [The appellants] assert that [the Council’s] understanding was mistaken and that in reality the function of the Service was different from that on which [the Council] relied in making the Decision. [The appellants] are contending that although the Service was created to provide social and related support it operated in practice to prevent users falling into crisis and played a significant role in reducing the risk of self-harm and suicide. The burden of establishing that proposition lies on [the appellants] and, applying the R(F) v Surrey County Council approach as set out above, they have failed to do so. [The appellants’] perception and belief, real and genuine though they are, do not establish that proposition and matters are not advanced by the non-expert opinion evidence contained in the supporting evidence. It follows that I am to proceed on the basis that [the Council’s] understanding of the role and function of the Service was correct. At the very least [the appellants] have failed to show that it was not properly open to [the Council] to approach the Decision on the basis of its understanding of the role and function of the Service.”

Whether “target” duties, although not directly engaged or breached, could in principle be relevant considerations

[19]At [90] the Judge accepted that the Care Act provisions were “target” duties, and that there is “a fundamental difference in public law between a duty to provide benefits or services for a particular individual and a general or target duty which is owed to a whole population” (per Lady Hale in R (Ahmad) v Newham LBC [2009] UKHL 14). At [92] he further accepted that the court must be on guard against a move to convert a target duty into a specific duty owned to an individual.[20]The Judge nevertheless held that it did not follow (as asserted by the Council) that the existence of a target duty can never be a mandatory relevant consideration (referred to by the Judge as a “CREEDNZ category 1” consideration CREEDNZ Inc v Governor General [1981] NZLR 172 per Cooke J, applied in R (Friends of the Earth) v Secretary of State for Transport [2020] UKSC 52. See para 31 below. ) in respect of a particular decision, nor that a failure to take the existence of such a duty into account can never be an irrational failure to take account of an obviously material consideration (a “CREEDNZ category 3” consideration), stating his reasons at [94]:
“The facts that the duty said to be a relevant matter to be considered is a broad target duty and that no breach of that duty is alleged do not, without more, mean that a public body is not required to have regard to the existence of that duty when making a decision. It is conceivable (although it is likely to be a rare case) that a statute may expressly or impliedly identify the existence of target duty under a different statute as a consideration to which regard must be had when exercising the powers under the former statute such as to make it a CREEDNZ category 1 consideration. Similarly, there is no reason of principle why the existence of a target duty cannot be an obviously material consideration within CREEDNZ category 3. Whether it is such a consideration in a particular case will depend on the nature of the exercise in which the public body is engaged and on the nature of the duty in question. Clearly, the broader the duty then the less likely that it will be so obviously material to a particular decision that rationality will require its consideration…. It is to be remembered that the test for CREEDNZ category 3 purposes is one of rationality. As Elisabeth Laing J explained in [R (DAT) v West Berkshire Council [2016] EWHC 1876 (Admin)] the decision-maker must have sufficient material to enable a proper decision to be made and must be properly alerted to the consideration in question. In assessing the sufficiency of the material, it is to be remembered that “it is for the decision-maker and not the court, subject again to Wednesbury review, to decide upon the manner and intensity of inquiry to be undertaken into any relevant factor …” (per Laws LJ in R (Khatun & others) v Newham LBC [2004] EWCA Civ 55, [2005] QB 37 at [35]). In addition, the extent of the risk that the ultimate decision will be in breach of a target duty is likely to be relevant to the question of whether the existence of the duty is an obviously material consideration. The greater the degree of risk of such a breach then the more likely the duty is to be a material consideration and vice versa. Nonetheless, provided regard is had to those qualifications, it will be open to the court to conclude in an appropriate case that the existence of a target duty was a consideration which was obviously material to the decision being taken such that a failure to take account of that duty’s existence was irrational.”

Whether the Care Act provisions were mandatory relevant considerations for the Decision

[21]As the Council was not, in making the Decision, performing a duty under the Care Act 2014 (or the National Health Service Act 2006), the Judge held at [104] that there was no basis for the appellants to argue that there was an express or implied statutory requirement to consider the Care Act provisions in so doing. The Judge further held that, contrary to the appellants’ case, there was nothing in R (DAT) v West Berkshire Council [2016] EWHC 1876 (Admin) that entailed that target duties could otherwise be mandatory relevant considerations. The Judge found that, in DAT, Elizabeth Laing J had decided that, where a consideration was one to which the public body was required to have regard there must be proper consideration in the sense that the decision-maker must be provided with sufficient material to be able to understand the consideration and take it into account [99(v)]. But her decision did not assist with the circumstances in which the existence of a particular statutory duty would be a consideration to which a decision maker must have regard either as a matter of express statutory obligation or as a prerequisite for a rational decision [100].

Whether the Care Act provisions were obviously material to the Decision

[22]The Judge started by recognising that a public body is likely to be subject to a number of statutory duties and that, whilst it was possible for such a duty (even one expressed in general terms) to be an obviously material consideration, care was needed before finding that a particular duty was such a consideration in relation to a particular decision [108].[23]The Judge then stated at [109] that the potential relevance of the Care Act provisions depended very much on the view taken as to the role performed by the Service. In that regard:
“[The appellants’] argument is predicated on their assertion that the Service played an important role in preventing the users going into crisis and so operated as a protection against the onset of suicidal ideation. I have already explained why, at the very least, [the Council] was entitled to proceed on the basis of its understanding of the role performed by the Service. The force of [the appellants’] argument is greatly diminished once it is established that [the Council] was entitled to address the Decision on the footing that the Service had a limited role, and that this role did not include crisis prevention.”
[24]At [110]-[113] the Judge considered various factors, including that the Service was not addressing eligible needs under the Care Act, that the Council did not provide equivalent Services elsewhere in Devon, that the Care Act provisions were expressed in general terms and a breach of them was unlikely, and that the Services’ role and function could and would be met in other ways if it was closed. At [114] the Judge summarised his reason for rejecting the appellant’s argument as follows:
“…[I]t remains necessary to assess whether a consideration which it is said should have been taken into account was obviously material and that requires an assessment of its potential impact on the ultimate decision. The context here was, in summary, that the Decision was being made on the basis that the Service was not being provided pursuant to a statutory obligation; that the closure of the Service would bring the North Devon position into line with the rest of the county; that there were alternative services which would address the needs met by the Service; and that the Service, at least to some extent, duplicated that provision. That context strongly supports the assessment that the existence of these statutory duties were not obviously material to the Decision.”
Ground 1: the Judge’s approach to the evidence.[25]The appellants asserted that the Judge was wrong and erred in law in treating the dispute between the parties as a question of fact as to the role and function of the Service (and so applying the principles set out in R(F)) because the dispute was not as to “primary” or “objective” facts but as to matters of opinion – in particular as to the effect the Service had on users. They contend that the Judge should not, therefore have proceeded on the basis that the Council’s understanding of the role and function of the Service was correct.[26]In that regard Mr Broach KC, for the appellants, referred to witness statements from six users of the Service (including the appellants), each giving evidence to the effect that attending the drop-in centres provided by the Service kept their mental health stable and prevented them from going into crisis. To put that in context, the Report stated that 130 people had used the Service in the preceding 18 months (para 2.1).[27]In my judgment, the immediate and complete answer to the Ground is that opinion evidence, in particular as to the effect of the Service (and its closure) on the mental health of users, would only be admissible (and of any weight) if provided by an expert in the field, and no such expert evidence was adduced. Certainly the Judge was right not to treat as relevant the subjective views of a relatively small number of users, with no qualifications or expertise in the field, no matter how deeply felt or vividly expressed.[28]Further, even if the mental health effect described by the six users was accepted as fact in their own cases, that would not, in my judgment, form a sensible basis for finding that the Council’s understanding of the overall role and function of the Service was mistaken. The Council had an overview of the Service in all three centres, as well as the mental health provisions available through the Trust (including for persons with eligible needs), and was best placed to form a view as to the respective roles played in supporting mental health issues and crises, actual and potential. The views of six users as to the effect the Service had on their own mental health did not undermine the Council’s view that the Service was as described in the Report.[29]Mr Broach further submitted that the Council (in the Report) and the Judge failed to appreciate the difference between the Service helping to prevent crisis on the one hand, and dealing with someone in crisis on the other hand. However, it is plain that the Judge fully understood that the appellants were contending that the Service “operates in reality to prevent users moving into crisis and thereby reduces the risk of self-harm and suicide”. He was fully entitled to reject that contention on the basis of Ms Forster’s account that the Service “provides neither clinical nor specialist mental health support” [26].[30]I recognise of course that, in broad and general terms, the Service will have contributed to the wellbeing of persons with mental health difficulties, that being its purpose, and to that extent the Service will have prevented those difficulties worsening. But the same might be said of many other facilities and services provided by the Council such as recreational facilities, transport and care services. The Judge cannot be criticised for accepting the Council’s position that the Service was neither established, nor operated, with an identifiable role or function in crisis prevention for those with mental health difficulties, that being dealt with by other services.

Ground 2: the Judge’s approach to statutory duties as mandatory relevant considerations

[31]The principles to be applied where a decision is challenged on the ground of a failure to take relevant matters into account are well-established. They were restated by Lord Hodge and Lord Sales JJSC in R (Friends of the Earth) v Secretary of State for Transport [2020] UKSC 52, [2021] PTSR 190 (“Friends of the Earth”) at [116], approving the summary outlined by Simon Brown LJ in R v Somerset County Council, ex p Fewings [1995] 1 WLR 1037, at 1049, in which he set out three categories of consideration: “First, those clearly (whether expressly or impliedly) identified by the statute as considerations to which regard must be had. Second, those clearly identified by the statute as considerations to which regard must not be had. Third, those to which the decision-maker may have regard if in his judgment and discretion he thinks it right to do so”.[32]A failure to take into account considerations in the first category results in the relevant decision being invalid. A failure to take account of a consideration in the third category will only make a public law decision unlawful if that consideration is so “obviously material” to the decision that such a failure would be irrational: CREEDNZ, p. 183. The test for obvious materiality is the “familiar Wednesbury irrationality test”: Friends of the Earth, [119].[33]The Judge accepted that it was conceivable, but likely to be rare, that a statute (either expressly or impliedly) might provide that regard must be had to another separate statutory duty, even if that duty was a general or target duty. It appears, despite a challenge to some of the Judge’s reasoning in its Respondent’s Notice, that the Council does not challenge that that possibility exists. The Judge found, however, that the Care Act provisions were not mandatory relevant considerations in the present case, and that nothing in DAT entailed that they could be so categorised.[34]The appellants challenge that finding, contending that the Judge wrongly interpreted the decision in DAT, which had the effect that decision makers had to be assisted to consider the substance and/or questions posed by various statutory duties relevant to a decision, even if arising under different statutes and statutory instruments.[35]In my judgment, however, the appellants’ contention that the Care Act provisions were mandatory relevant considerations in relation to the Decision (and their criticism of the Judge’s finding to the contrary) does not get off the ground. As appears from the authoritative statement above, endorsed by the Supreme Court, to be mandatory the considerations in question must be clearlyidentified by the relevant statute as being one to which regard must be had. That entails that the words of the applicable statute are to be considered carefully to see whether they clearly identify such consideration expressly or by necessary implication.[36]In the present circumstances, that would involve the appellants demonstrating that the Council was exercising a statutory function, then further identifying that the wording of that statute required that regard be had to the separate Care Act provisions. But the appellants have not identified the governing statutory provision, let alone set out its wording and explained how that wording expressly or impliedly required that regard be had to the Care Act provisions. The basic requirements of establishing CREEDNZ 1 considerations have not been addressed, let alone satisfied.[37]If the decision in DAT suggested that considerations could be mandatory without being identified in a statute, it would be contrary to the highest authority and wrongly decided. But it plainly does not do so. DAT concerned a challenge to a local authority’s decision to cut funding to voluntary organisations which provided short breaks for disabled children. One of the questions before the court was whether the decision to cut the funding was unlawful because the local authority had failed to take into account mandatory relevant considerations “that is, the questions posed by, and/or the requirements of the statutory provisions which apply to short breaks”: DAT, [5]. At [47]-[48] Elizabeth Laing J stated as follows:
“47. The question… is whether members were given the help which they needed to answer the questions posed by those provisions in the context of this case. I appreciate that, just as some people can utter prose without realising that that is what they are doing, it is possible for members to comply with the law, as it were, unconsciously, if their minds have been directed to the issues, in substance, which the law requires them to consider: cf per Lord Bingham in R v Somerset County Council ex p Fewings [1995] 1 WLR 1037 at p 1046B-H. But as he recognised in that passage, that conclusion is difficult to reach if members’ minds have not been directed to the relevant statutory language, and thus to the question which they should address. A paraphrase of the statutory test which includes some, but not all, relevant matters is not enough. Express reference to the statutory test (or an accurate paraphrase or summary, as the case may be) ensures a focus on all the factors which Parliament or (in the case of delegated legislation) the executive, with the necessary Parliamentary sanction, has prescribed. 48. There is no trace in the materials given to members of any reference to the express language, or to the substance, of regulations 3 and 4 of the 2011 regulations, or of section 27(2) of the 2014 Act. … There is no reference, either, to the duty imposed by section 11 of the 2004 Act, or the best value guidance, to which the Council was required to have regard. In other words, members’ attention was not drawn to mandatory relevant considerations. I conclude that on those grounds, also, decision 1 was unlawful.”
[38]Mr Broach argued that DAT established(i) that a statutory duty could be a mandatory relevant consideration when making a decision that could potentially impact the performance of that duty;(ii) that the relevance of the Care Act provisions to the Decision in the present case was analogous to the relevance of the duties which Laing J had relied on in DAT;(iii) that the Cabinet had not been “given the help they needed” to consider the Care Act provisions in accordance with DAT; and(iv) that, consequently, the Decision was unlawful.[39]However, the mandatory relevant considerations in DAT were expressly engaged when making a decision about breaks for carers: paragraph 6(1)(c) of Schedule 2 to the Children Act 1989 required that the duty to give carers breaks from caring “must be performed” in line with regulations 3 and 4; section 11 imposed a duty on local authorities to have regard to “the need to safeguard and promote the welfare of children” when exercising their functions in a way which affects a child; and section 27(2) provided that a local authority “must consider the extent” to which special educational needs provision meets the social care needs of young people (though Elizabeth Laing J’s tentative interpretation of that section has subsequently been held to be incorrect). Consequently, DAT has no bearing on the question of when statutory provisions will be relevant; it only explains how they should be considered in cases where they are. It follows that, not surprisingly, DAT does not support the proposition that the Care Act provisions were mandatory relevant considerations for the purpose of the Decision.[40]Mr Broach also relied on R (SARCP) v Stoke County Council [2025] EWHC 18 (Admin), [2025] PTSR 1311 (“SARCP”). That case dealt with a local authority’s decision to change the price it paid to residential care providers. At [79], HHJ Tindal held that the decision “failed to take into account expressly statutory factors”, including certain duties under section 5 of the Care Act. It does not remotely support the appellants’ case that the Care Act provisions were mandatory relevant considerations in the present case.[41]I would add that Mr Broach’s contention, that various statutory provisions can be mandatory relevant considerations for a decision because of their “relevance” and the “need to assist” the decision maker, without foundation in the wording of a statutory provision, is not merely contrary to the highest authority, but would effectively conflate CREEDNZ 1 and CREEDNZ 3 considerations. It would have profound and startling results for public bodies, requiring them in every case to have regard to a wide range of statutory duties which were (or were arguably) relevant in a broad sense although not identified in the governing statute.

Ground 3: Obvious materiality/irrationality

[42]The Judge accepted that, in principle, the existence of a non-engaged statutory duty, even a general or target duty, could be an obviously material consideration in making a public law decision. The Council challenged that finding by its Respondent’s Notice, but it seems to me (without needing to decide the point) that it is difficult to rule out the possibility that a target duty could ever be obviously material.[43]Mr Broach argued that, in rejecting the appellants’ case as to obvious materiality of the Care Act provisions, the Judge erred in his approach to the evidence, a contention I have already dealt with above. Otherwise, Mr Broach submitted that the Judge(i) erred by focusing on “crisis prevention” at [109], ignoring the Service’s preventative function more generally and the consequent relevance of section 2 of the Care Act 2014;(ii) wrongly placed weight at [111] on the fact that the Council did not provide equivalent services in other parts of Devon, which was relevant only to rationality; and(iii) erred at [114] by referring to the availability of alternative services, which was relevant to the merits of the Decision, but not its lawfulness.[44]It was common ground that the test for an “obvious materiality” challenge is that of Wednesbury irrationality, a high threshold which the Judge did not consider had been established. In my judgment the challenges to that finding are without merit. First, the suggestion that Judge focused unduly on the “crisis prevention” function of the Service was misconceived. As the Judge said, his view on Ground 1 led to the conclusion that the Service had a more “limited role” (in terms of both function and effect) than the appellants had contended, “and that this role did not include crisis prevention” [109]. A lack of crisis prevention was just one aspect of that more “limited role”. It was hardly the sole basis on which the Judge assessed “obvious materiality”. Secondly, the Judge was entitled to consider the availability of equivalent services, since the Care Act provisions were expressed to apply to a local authority “in its area”. Thirdly, the Judge was also entitled to note “the context” that alternatives to the Service were available because section 2(2)(a) of the Care Act 2014 specifically refers to identifying alternative services; that analysis was part of the Judge’s conclusion that section 5 of the Care Act 2014 was not material.[45]Further, during the course of argument Mr Broach accepted that, had the Report set out the Care Act provisions in the manner for which he contended, it would have been open to Ms Forster also to inform and advise the Cabinet that those provisions were not engaged in relation to the Decision and would not be breached by it. Indeed, it might be thought that such advice would have been appropriate so that the Cabinet was not misled into thinking that the provisions, and the factors they identified, were directly applicable to the Decision. Given that such advice would have been proper and accurate, it is difficult to see how it can seriously be suggested that it was obviously material to refer to the provisions.[46]I would add that, given Mr Broach’s acceptance of the explanation that could (and perhaps should) have accompanied any reference to the Care Act provisions in the Report, there is also force in the Council’s Respondent’s Notice point that it is highly likely that the outcome for the appellants would not have been substantially different in those circumstances. Given my conclusions on the appeal, however, it is unnecessary to consider further whether the power in section 31(2A) of the Senor Courts Act 1981 should have been exercised by the Judge had he otherwise found for the appellants.[47]I agree.[48]I also agree.

Cited in 1 later judgment