“that the Chief Executive be authorised to lead a review of the organisational form of the Council and to report back to Cabinet with options for change by December 2008”
“In order [to] maximise the value to citizens of Barnet’s public services, the Council should focus its energy on the activities where it alone can add value. It should therefore enable other organisations to do those things that they can do as well or better than the Council. Fundamentally, the Council should conduct those activities that only the Council can. This implies a number of principles on which to base the future shape of the organisation: 1. .... 2. The future Council should be strategic rather than operational, focused on convening and working with its partners to prioritise and commission the public services that should be provided in the borough, rather than delivering services itself. 3.- 6. ...” (The emphases are in the original.) The Cabinet resolved: “that the proposal for officers to develop a detailed assessment of the overall model for public service commissioning, design and delivery be agreed.”
“The background paper to this report sets out a high-level options analysis for how we might achieve the development of a customer services organisation. There are three options: • Council remains the main delivery vehicle; • Co-ownership model (Employees, Customers, Members are the major shareholders); • Joint Venture/Outsourcing. Work on deciding which option to pursue will be undertaken as part of the Future Shape implementation process.”
“... bring together the following functions into an environmental management, regulatory and design function, and seek a partnership with the private sector: Planning, Housing and Regeneration • Building Control and Structures (including Street Naming & numbering) • Planning (Development Management) • Strategic Planning • Regeneration • Land Charges • Environmental Health (Residential and Commercial sectors) • Cemetery & Crematorium. Corporate Services • Registration of Births, Marriages and Deaths Environment and Operations • Trading Standards & Licensing • Highways Network Management • Highways Traffic & Development • Highways Strategy • Transport & Regeneration.”
“That the Commercial Director be authorised to commence the procurement process to identify a strategic partner for the delivery of the Development and Regulatory Services project.”
“1.1 That the Director of Commercial Services be authorised to produce a business case for the following: a. The procurement of a private sector partner(s) to deliver the following services - Customer Services, Estates, Finance, Human Resources, Information Services, Procurement, Revenues and Benefits. b-d. .... 1.2 That the details of business case 1.1(a) be referred to and considered by a future meeting of Cabinet Resources Committee. 1.3 That the Director of Commercial Services be authorised to initiate the procurement of a private sector partner(s) to deliver the following services: • Customer Services, Estates, Finance, Human Resources, Information Services, Procurement, Revenues and Benefits 1.4 That this procurement process will only proceed into the dialogue phase once the business case identified in 1.1(a) above be approved by Cabinet Resources Committee.”
“New Support and Customer Services Organisation Business Case For the reasons set out in the Cabinet Member’s report, andhaving given due regard to the statutory Public Sector EqualityDuty and the outcomes of equality impact assessments referredto within the report, the Committee RESOLVED - (1) That the committee approves the New Support and Customer Services Business Case in order that the council can begin the competitive dialogue process, following the previously approved placing of the OJEU notice. (2) That the authority to award contract remains with the Cabinet Resources Committee. (3) That the committee give due regard to the statutory equality duties under theEquality Act 2010 and the outcomes of the equality impact assessments referred to in this report.”
“1 That Cabinet note the outcome of the evaluation stage of the New Support and Customer Service Organisation (NSCSO) Project and accept Capita’s Final Tender as the preferred bid, with reference to the Full Business Case . , Equalities Impact Assessments ..., List of Principal Legislation ., and Evaluation Scores ... . 2 That Cabinet approve the appointment of the recommended reserve bidder. 3 That Cabinet delegate contract completion and signature (and ancillary documentation) finalisation and execution to the [Chief Financial Officer] ... 4-5 ....”
“Where the High Court considers that there has been undue delay in making an application for judicial review, the court may refuse to grant— (a) leave for the making of the application; or (b) any relief sought on the application, if it considers that the granting of the relief sought would be likely to cause substantial hardship to, or substantially prejudice the rights of, any person or would be detrimental to good administration.”
“a ... principle, whose nature is not dependent upon an appeal to the rules relating to delay . that a judicial review applicant must move against the substantive act or decision which is the real basis of his complaint. If, after that act has been done, he takes no steps but merely waits until something consequential and dependent upon it takes place and then challenges that, he runs the risk of being put out of court for being too late.”
“For my part the substantive position is straightforward. The court has jurisdiction to entertain an application by a citizen forjudicial review in respect of a resolution before or after its adoption. But it is a jump in legal logic to say that he must apply for such relief in respect of the resolution on pain of losing his right to judicial review of the actual grant of planning permission which does affect his rights.” (5) He observes (para. 42, p. 1607 F-G) that if the position were that a person in Mrs Burkett’s position was obliged to challenge a preliminary resolution rather than await the final grant of planning permission that “... would also be in tension with the established principle that judicial review is a remedy of last resort”
“If a decision-maker indicates that, subject to hearing further representations, he is provisionally minded to make a decision adverse to a citizen, is it to be said that time runs against the citizen from the moment of the provisional expression of view? That would plainly not be sensible and would involve waste of time and money. Let me give a more concrete example. A licensing authority expresses a provisional view that a licence should be cancelled but indicates a willingness to hear further argument. The citizen contends that the proposed decision would be unlawful. Surely, a court might as a matter of discretion take the view that it would be premature to apply for judicial review as soon as the provisional decision is announced. And it would certainly be contrary to principle to require the citizen to take such premature legal action. In my view the time limit under the rules of court would not run from the date of such preliminary decisions in respect of a challenge of the actual decision. If that is so, one is entitled to ask: what is the qualitative difference in town planning ?” (6) At paras. 43-50 he considers which approach is preferable as a matter of policy. He acknowledges the “need for public bodies to have certainty as to the legal validity of their actions” (para. 44, at p. 1603C), and he refers to the weight given to that factor by the Court of Appeal and by Laws J in Greenpeace. But he believed that there were countervailing policy considerations. In summary: (a) Since the effect ofCPR 54.5 is potentially to deprive a citizen of the right to challenge an abuse of power, it is important to have “a clear and straightforward interpretation which will yield a readily ascertainable starting date” (para. 45, at p. 1608 F-G). (b) If, as Laws J had decided in Greenpeace, time was treated as running from the date of the act or decision “which is the real basis of his complaint” - or, as it is put elsewhere, “when the complaint could first reasonably have been made” - that would conduce to complexity and uncertainty (paras. 45-49). It would often be highly debatable when the “real” basis of a complaint had arisen or when it could first reasonably have been made. (c) It would be unreasonably burdensome to require applicants to incur the very considerable costs of preparing an application for judicial review of aresolution of the kind in question “when the resolution may never take effect” (para. 50). (7) The relevant part of the speech concludes, at para. 51 (p. 1610): “For all these reasons I am satisfied that the words 'from the date when the grounds for the application first arose' refer to the date when the planning permission was granted. In the case before the House time did not run therefore from the resolution of15 September 1999 but only from the grant of planning permission on12 May 2000 .”
“In my opinion, for the reasons given by Lord Steyn, where there is a challenge to the grant itself, time runs from the date of the grant and not from the date of the resolution. It seems to me clear that because someone fails to challenge in time a resolution conditionally authorising the grant of planning permission, that failure does not prevent a challenge to the grant itself if brought in time, i.e. from the date when the planning permission is granted. I realise that this may cause some difficulties in practice, both for local authorities and for developers, but for the grant not to be capable of challenge, because the resolution has not been challenged in time, seems to me wrongly to restrict the right of the citizen to protect his interests. The relevant legislative provisions do not compel such a result nor do principles of administrative law prevent a challenge to the grant even if the grounds relied on are broadly the same as those which if brought in time would have been relied on to challenge the resolution.”
“43. The references to the Burkett and Risk Management cases were clearly helpful in identifying the principles but they cannot be dispositive in themselves. ... [M]uch may turn on the individual facts of the particular case. To what extent is it right on the evidence before me to regard the decisions as final? 44. I do not think it appropriate to take too legalistic a view on finality. As I have pointed out already, if the Defendants chose not to go ahead at some point, after signing the "instruction to proceed" documents, there would be financial consequences. Because they could be released from their commitment on payment of the appropriate sum, does that mean that the decisions taken at that stage had only been conditional ? I think not. It seems to me that those binding agreements, en route to the final agreements then contemplated, cannot be equated to conditional agreements. They reflect contractual obligations. 45. Final decisions had already been taken in September, ... which might in theory have been reversed, but there was no indication that this would happen. The 29 September minute referred to contract discussions on how (not whether) to take matters forward. If an agreement is truly conditional, one can envisage at least two possibilities occurring. There will come, as it were, a fork in the road at some point. Either the condition(s) will be fulfilled or not. There is an inherent degree of uncertainty. Here, the decisions were "final", although there were arrangements to be worked out. There could be a change of heart. One or more of the Defendants could have extracted themselves from the commitment - perhaps on making the appropriate contractual payments. But that seems to me to be qualitatively different from a resolution to go ahead only on the fulfilment of certain conditions.”
“The claimant should challenge the decision which brings about the legal situation of which complaint is made. There are occasions when a claimant does not challenge that decision but waits until some consequential or ancillary decision is taken and then challenges that later decision on the ground that the earlier decision is unlawful. If the substance of the dispute relates to the lawfulness of that earlier decision and if it is that earlier decision which is, in reality, determinative of the legal position and the later decision does not, in fact, produce any change in the legal position, then the courts may rule that the time-limit runs from that earlier decision.”
“It is not our intention to consult the public on the principles of the Future Shape programme. As we have stated elsewhere the programme is a response to known concerns, such as declining satisfaction and significantly lower grant settlements and the Council is showing clear leadership in addressing these issues directly. However there will be a process for engaging citizens in the ‘commissioning’ phase of the future shape programme to ensure that we understand how we can work with people to achieve better outcomes for the people of Barnet. Those areas will be discussed in the next future shape report. The timescales of this will vary depending on the issue but we would expect this process to start within the next 12 months and to involve large numbers of residents.” (2) At another forum on15 June 2010 he was told: “Over coming months the council intends to engage fully residents as to how services can develop in the difficult financial circumstances that the public sector faces. The scale of this involvement will relate to the challenge we face.” (3) The minutes of a meeting of the “Future Shape Overview & Sentencing Panel” on11 August 2010 record that the Chairman told Mr Dix: “The Council is planning to launch a wide-ranging consultation at the end of September 2010 to invite residents to comment on the future of services and public sector priorities in Barnet over the coming years given the current pressures on public finances and changing models of customer demands. As well as public meetings (which have not attracted many attendees in the past) the council will explore new internet based models for involving residents in developing the priorities of the council. Individual services will be engaging with current and potential service users to explore new models of service provision over coming years. The exact nature of this latter engagement will vary from service to service, as is most appropriate for the users of each service. Details will be published as engagement programmes are launched. The Council will promote engagement activity through Barnet First magazine, Council advertising sites and local newspapers. The Future Shape Overview and Scrutiny Panel will monitor this consultation. All the feedback from the consultation will be fed into the relevant project streams of the One Barnet programme.” (4) Finally, at a further meeting of the Panel on23 February 2011 Mr Dix was told that an “engagement strategy” had been endorsed by the “One Barnet Partnership Board” on20 January 2011 , though this was qualified by a statement that the document in question was “less of a strategy and more of a collection of principles”
“ The general duty (1) A best value authority must make arrangements to secure continuous improvement in the way in which its functions are exercised, having regard to a combination of economy, efficiency and effectiveness. (2) For the purpose of deciding how to fulfil the duty arising under subsection (1) an authority must consult— (a) representatives of persons liable to pay any tax, precept or levy to or in respect of the authority, (b) representatives of persons liable to pay non-domestic rates in respect of any area within which the authority carries out functions, (c) representatives of persons who use or are likely to use services provided by the authority, and (d) representatives of persons appearing to the authority to have an interest in any area within which the authority carries out functions. (3) For the purposes of subsection (2) “representatives” in relation to a group of persons means persons who appear to the authority to be representative of that group. (4) In deciding- (a) how to fulfil the duty arising under subsection (1), (b) who to consult under subsection (2), or (c) the form, content and timing of consultations under that subsection, an authority must have regard to any guidance issued by the Secretary of State.” (a) representatives of persons liable to pay any tax, precept or levy to or in respect of the authority, (b) representatives of persons liable to pay non-domestic rates in respect of any area within which the authority carries out functions, (c) representatives of persons who use or are likely to use services provided by the authority, and (d) representatives of persons appearing to the authority to have an interest in any area within which the authority carries out functions. (4) In deciding- (a) how to fulfil the duty arising under subsection (1), (b) who to consult under subsection (2), or (c) the form, content and timing of consultations under that subsection, an authority must have regard to any guidance issued by the Secretary of State.”
“6.5 To fulfil the duty of best value, authorities should seek to achieve a balance between potentially, but not necessarily, competing objectives in particular: • responding to the needs of all sections of the community including those groups with complex or specialist needs • seeking to address the whole-life costs of decisions, focusing on early intervention and achieving sustainable outcomes • exploiting economies of scale • achieving locally-responsive services. 6.6 Achieving the right balance will require - as set out in section 2 on the duty to involve - appropriate consultation and involvement (ideally led by elected members) with representatives of local people including potentially the local authority’s own workforce, and - where there is an impact upon LAAs - also require consultation with the relevant partner authorities.” (The reference to a “duty to involve” is to a distinct duty introduced by the 2007 Act, which attracts its own guidance in chapter 2.) Fresh guidance, entitled Best Value Statutory Guidance, was issued in September 2011. The passage relating to consultation reads: “To achieve the right balance - and before deciding how to fulfil their Best Value Duty - authorities are under a Duty to Consult representatives of a wide range of local persons; this is not optional. Authorities must consult representatives of council tax payers, those who use or are likely to use services provided by the authority, and those appearing to the authority to have an interest in any area within which the authority carries out functions. Authorities should include local voluntary and community organisations and small businesses in such consultation. This should apply at all stages of the commissioning cycle, including when considering the decommissioning of services.”
“A significant part of the savings identified would come from ‘Future Shape’ - the Council’s transformation programme. These savings would come from bringing together all of the internal support services across the council - for instance from having a single central team responsible for managing the purchase of goods and services, or developing contracts with service providers.”
“- What are your views on what we can cut back on ? - Should the council stop doing some services ? - What could the council do better ? - What could the council provide and charge for ? - Are there activities that the council could facilitate rather than pay for ?”
“If consulted about the authority’s Human Resources function in isolation, residents might say that it is important to them that it remains being carried out by employees of the authority itself. But if consulted about that function in conjunction with others, and against a backdrop where the authority has explained that its financial position is such that savings must be made by one route or another, residents might be considerably more amenable to outsourcing of the Human Resources function, in preference to cutting frontline services elsewhere.”
“Where an authority has decided that the appropriate way to consult for the purpose of assisting it in deciding how to fulfil its duty to “make arrangements” is through consultation relating to the full range of its functions, the obvious means of carrying out that consultation is through the process of setting the authority’s Budget, the Corporate Plan and the Medium Term Financial Plan. That is the stage at which the authority must itself make difficult decisions on how best to allocate its limited resources. It is of the essence of this stage that it is directed towards securing improvement in the way which the authority’s functions are exercised. It is therefore the stage at which consultation will best assist the authority in deciding how to make arrangements to secure that improvement.”
“Authorities have to use common sense. The Bill does not say “you must consult in this way on that aspect. ... We should credit local councils with a bit of common sense. That is why we are making the bill more flexible. Our proposals will not involve a consultation process that is over-prescriptive, over-bureaucratic or, quite honestly, useless.”
“3.10 Legislation could prescribe a framework for the form and timing of consultation. Consultation could be achieved, for example, through general publicity, through specific mailing of individuals and businesses, through regular feedback related to specific services, or in respect of the whole impact of the council’s services on particular groups or communities. A combination of such methods, decided locally, might be feasible. The timing of the consultation process would ideally be related to the budget cycle, although this might be difficult to achieve across all services on an annual basis. The process of consultation might, therefore, need to have a longer term focus recognising that it could sometimes be difficult to adjust services instantaneously.Either way the local consultation process will be effective only insofar as it secures and sustains a positive response from local people. This will depend in part on local authorities’ responsiveness, and the skill and transparency with which the issues are presented. But it will also depend on public perception of progress in restoring fiscal responsibility to councils and in involving local people in local decisions. 3.11 A formal requirement to consult in a particular way would not in itself guarantee a responsive and sensitive process, or guarantee a sense of interest and involvement by local people. There is probably no one mechanism that will be appropriate in all circumstances: individual local authorities and people will need to consider what suits their local circumstances best, building on the good practice that authorities have been developing through initiatives such as Local Agenda 21. The Government therefore favours a duty to consult cast only in general terms, leaving the process open to local discretion and the development and dissemination of best practice, including that learnt from the pilot schemes. It will take into account, however, responses to its proposals to involve local communities in shaping local services such as those described in the consultation paper on local democracy and community leadership.”
“(1) A public authority must, in the exercise of its functions, have due regard to the need to— (a) eliminate discrimination, harassment, victimisation and any other conduct that is prohibited by or under this Act; (b) advance equality of opportunity between persons who share a relevant protected characteristic and persons who do not share it; (c) foster good relations between persons who share a relevant protected characteristic and persons who do not share it. (7) The relevant protected characteristics are - Age; Disability; Gender reassignment; Pregnancy and maternity; Race; Religion or belief; Sex; Sexual orientation.” (a) eliminate discrimination, harassment, victimisation and any other conduct that is prohibited by or under this Act; (b) advance equality of opportunity between persons who share a relevant protected characteristic and persons who do not share it; (c) foster good relations between persons who share a relevant protected characteristic and persons who do not share it. Age; Disability; Gender reassignment; Pregnancy and maternity; Race; Religion or belief; Sex; Sexual orientation.”
“Having considered these issues in detail, it is the Council’s view that the overall impact on all groups with protected characteristics in the borough in terms of their access to and use of these services, the Council’s ability to tackle discrimination and advance equality of opportunity, is likely to be positive.There is likely to be a neutral impact on good relations between those sharing and those not sharing protected characteristics. However these assessments will be kept under review throughout the mobilisation and contract period.”
“The reasons for the current positive and neutral assessments are as follows: • No service reductions are proposed in Capita’s Final Tender. In particular, face to face provision will be retained as is, in terms of location, staff numbers and opening hours. • Capita has defined key over-arching design objectives for the NSCSO designed to ensure that Customer needs are met and groups with protected characteristics are protected including: (a) Building Service Delivery Differently - Capita will enable multi-channelled delivery and the ability to bundle services in ways that relate to customer need and put that at the heart of service delivery. Capita will consult closely with all stakeholders and employ a co-design process with customer groups that represent the residents of Barnet so services fit into customer’s lives and are easy to use. (b) Managing Service Delivery Differently - Capita will transform the way Customers interact with our services (and the Council) by transferring control to them and engaging them in service design. Insight will form the basis of the new service delivery model by investment in understanding the customer, understand need, understanding access to services and the requirements of the more vulnerable. • Where there could be negative impacts, in terms of location, service structures and new technology, Capita has committed to a range of measures that will prevent changes from adversely impacting the quality of service provision on any customer, and introducing equalities training for staff and advocacy for vulnerable customers to make a positive contribution to equalities. Capita has also committed to conducting EIAs when any changes to services are being considered, prior to their approval and implementation. • Capita has committed to adhering to equalities legislation and the Council’s equalities policy, and producing an annual equalities report. • Activities or measures currently undertaken by the services which promote the public sector equalities duty will be retained by Capita. • Capita is introducing a number of service improvements that will enable better data about customers to be collected, analysed, and shared so that services can be better designed and targeted to customers needs, and committing to significant improvements to customer service outcomes such as first contact resolution and customer satisfaction. • Capita will use the intelligence gathered through codesign and their on-going management of processes and operations to create dynamic and personalised service delivery for all customer groups. This rich understanding of customers drawn from behavioural analysis, and combined with their experience and Barnet specific Insight will enable them to identify and understand patterns of Customer behaviour and specific customer needs and tailor service accordingly.”