"Resolved: (a) That the flexi childcare service be closed following the required period of notice for staff. (b) That the childcare provision for children aged under 3 of age at both Borough Road and Northward facilities be closed from the end of the spring term. (c) That the childcare provision be retained until August 2013 for the 95 children across both settings who will be due to start school in September of that year, thus minimising disruption for those children and their families. Reasons: (a) All three Kids & Co services are running at a total deficit of£212,000 per annum at a time when the Council is having to prioritise services in accordance with its statutory obligations and its available budget. (b) In spite of extensive detailed work, no model of running the provision has been identified which removes the need for a Council subsidy. (c) No alternative models have been proposed formally by any other parties which would remove the Council subsidy. (e) Neither school as hosts of the nurseries is currently prepared to consider a partnership arrangement with another provider. (f) Other childcare vacancies exist across Darlington amongst childminders and private day nurseries. (g) There is no longer any demand for the flexi childcare, service partly due to other service reductions within the local authority, and there were no consultation responses received which would lead members to review the original proposal for closure. (h) Closure of the provision at the end of the spring term for children aged under 3 gives parents a reasonable period of notice with which to find alternative settings or to make other arrangements. (i) Closure of the provision at the end of August 2013 for children transferring to school in September 2013 removes any disruption for those families and removes the need for them to seek alternative arrangements for only one term."
"An English local authority must secure, so far as is reasonably practicable, that the provision of childcare (whether or not by them) is sufficient to meet the requirements of parents in their area who require childcare in order to enable them— (a)to take up, or remain in, work, or (b)to undertake education or training which could reasonably be expected to assist them to obtain work."
"(2)In determining for the purposes of subsection (1) whether the provision of childcare is sufficient to meet those requirements, a local authority— (a)must have regard to the needs of parents in their area for— (i)the provision of childcare in respect of which the child care element of working tax credit is payable, and (ii)the provision of childcare which is suitable for disabled children, and (b)may have regard to any childcare which they expect to be available outside their area. (3)In discharging their duty under subsection (1), a local authority must have regard to any guidance given from time to time by the Secretary of State." 21. It is not suggested by the claimant that there has been a breach of section 6(1). It is, however, argued that the Council failed to consider a relevant consideration, namely the March 2012 Review, when it purported to comply with section 6(1), the Childcare Sufficiency Assessment 2011 and the Childcare Sufficiency Review 2012. 22. Before going further, it is necessary, albeit briefly, to set out what is contained within the Childcare Sufficiency Assessment 2011 and the Sufficiency Review 2012. I shall call the former "the Assessment of 2011" and the latter "the Review of 2012"
"36.Under the Childcare Act 2006 , local authorities have a duty to assess the sufficiency of the childcare in their area at least every 3 years. Details of the legal obligations and the sufficiency assessment were set out in the Cabinet report [paragraph 21 to 28, page 100 of the bundle]. The March 2011 Childcare Sufficiency Assessment was included as a background paper to the Cabinet report. It should be noted that in February 2013 the Government published its Children and Families Bill 2013, which is progressing through Parliament and repeals the local authority's duty to assess sufficiency of childcare provision[section 11 of the Childcare Act 2006] . However, undersection 6 of the Childcare Act 2006 , the local authority's statutory duty to ensure childcare remains. 37. The 2011 Childcare Sufficiency Assessment is a comprehensive piece of work. The assessment considers, amongst other matters, the population of Darlington, the labour market, childcare use, the supply and demand of childcare, and included a full gap analysis comparing the future childcare requirements of existing and prospective parents and carers, including a number of minority groups, and also of local employers with a snapshot picture of existing childcare supply in Darlington. From the beginning of the assessment process, including commissioning any research support I required publishing the documents, the assessment takes around 18 months. The completed 2011 Childcare Sufficiency Assessment ran to 166 pages. 38. As well as the very detailed 3-yearly childcare assessment, a yearly review is also undertaken in the intermediate years. This is a far less extensive piece of work than the full assessment. The review takes around 2 to 3 weeks to complete. It looks much more simply at childcare demands, looking at the unmet demand list recorded by Darlington's People and Families Information Support Service and taking into account any occurrences in Darlington which may affect childcare demand over the next 12 months (from a large employer closing down or a new building development being built). It also looks more simply at supply within the childcare market, concentrating on the main areas for concern highlighted in the previous assessment. 39. In respect of the Cabinet's decision, the most up-to-date review available was the 2011/2012 Childcare Sufficiency Review, which was published in March 2012. The review was not presented to members, which were instead provided with the most up-to-date information about vacancies which the Council obtained from a telephone audit. 40. Unsurprisingly, there had been some changes between the full assessment and the 2011/2012 review. The information presented to Cabinet about the full assessment [see paragraph 25, page 101] summarised that "
"The 2013 Review, which is currently in draft form, shows that between March 2012 and March 2013 the number of private daycare nurseries in the Borough has remained static at 20, although one additional setting at the Darlington arena opened in April 2013 with capacity for 70 children. The rest of the childcare market has remained static, as has the number of unmet childcare enquiries. The current position at Kids & Co is that there are a total of 154 children on roll and who will need to be placed, amounting to 71 full equivalent time places or 142 session, although many of these will be starting school in September 2013. The information that was available to Cabinet showed that there was surplus capacity to place these children. A further telephone exercise was carried out by staff at the end of May 2013 to seek to find out what vacancies existed. This confirmed again that from the data that was obtained there are both childminder and nursery vacancies in excess of the placements required upon the closure of Kids & Co." 27. The essence of the Director's submission to the Council (via its Cabinet) was that there was sufficient alternative provision based upon the up-to-date position which was reported to the Cabinet. The Claimant's Argument 28. The argument advanced by Mr Ben McCormack, of behalf the claimant, stripped of much detail, comes to three simple propositions: (1) the Council has left out of consideration a factor, namely the 2012 Review, which, he asserts, was obviously material; (2) the provision of other childcare resources in the area was plainly a material consideration; and, (3) the information in the 2012 Review was highly relevant, and ignored by the council. I forbear to recite the written submissions contained in the skeleton argument or recount the oral submissions which amplified them. The Council's Argument 29. The argument advanced by Mr Richard Clayton QC, on behalf of the Council, can be distilled in this way: (1) on the facts of this case, the 2012 Review was not an obviously material consideration; (2) the core issue to be resolved by the Council was whether there were sufficient places elsewhere if the nursery should close; (3) the Council had placed before them the main historic document (the 2011 Assessment) and the up-to-date position, which enabled them to reach a conclusion; (4) the 2012 Review (note, a review, not an assessment) was a class of document that the Council was entitled to consider if they wished to do so or not, as the case may be; and, (5) factually, it is asserted, the claimant has been selective in the presentation of what is and is not germane to the legal issues. The Legal Issues 30. The central question for me to determine as a matter of law is whether the 2012 Review was a material consideration. If it was, the Council have acted unlawfully. The Council then mount the argument that even if it had been placed in the equation, the result would have been the same. The Council also asserts as a backstop that the court, as a matter of discretion, should not grant relief as events have now very considerably moved on. 31. The two final arguments only arise if I adjudge the 2012 Review to be a material consideration. It is to that issue I now turn. Material Consideration 32. I commence by referring to theChildcare Act 2006 . By section 6(1), the Council is required, subject to reasonable practicability, to secure the provision of childcare, not necessarily by the Council itself, for the children whose parents are in employment or undertake education with a view to employment. By section 11(1) and 11(3), the Council must prepare childcare assessments every 3 years. An annual report is also needed pursuant to statutory guidance issued by the Department for Education in 2010. This latter aspect of the regime is not of importance. In simple and understandable terms, there is a requirement placed upon the Council to undertake 3-yearly assessments, but in the intervening years reviews should be undertaken. In this case, there is no suggestion of any breach of the statutory requirements. 33.There is a difference between what is sometimes called a target duty and a duty owed to an individual. It is a matter of statutory interpretation into which category a duty extends. It is also clearly understood that the Administrative Court is not an appellate court reviewing the factual merits of a case when exercising its judicial review jurisdiction. However, the question whether a particular item is a material consideration is a question of law. 34. In the factual and legal matrix of this case, it has not been suggested by the claimant that there is any statutory or regulatory demand to consider the 2012 Review when making the decision about whether to close the nursery. The duty on the Council is to ensure adequacy of provision of childcare as described by section 6(1). Mr McCormack asserts that the 2012 Review falls into the category of material postulated by Lord Scarman in the House of Lords in In re Findlay & Ors[1985] 1 AC 318 , where he accepted the proposition of Cooke J (later a judicial member of the House of Lords) in a New Zealand case called CREEDNZ Inc v Governor General[1981] 1 NZLR 172 . Cooke J (as he then was) said: "
"49. I accept that when stating, at paragraph 109 of his judgment, that 'the question of possible prejudice to third parties was not a legally relevant factor', the judge has elided the question whether it was capable of being a legally relevant factor with whether it was a factor the decision maker was required to take into account. The distinction was considered, in relation to a quite different statutory regime in Re Findlay[1985] AC 318 . At page 333H, Lord Scarman, with whom the other members of the Committee agreed, cited with approval the statement of Cooke J in CREEDNZ Inc v Governor General[1981] 1 NZLR 172 , at 183: ... "
'Some considerations are required to be taken into account by decision makers. Others are required not to be. But there is a third category: those considerations which the decision maker may choose for himself whether or not to take into account.' 52. In R (Corner House Research) v Director of the Serious Fraud Office[2009] AC 756 , Lord Bingham of Cornhill stated, at paragraph 40: '
"A telephone audit conducted during the last week of November 2012 by the Families Information Service indicates a large number of childminder vacancies exist across the Borough. All 20 nurseries were contacted and of the 14 that have responded to date, 11 showed vacancies and 6 are still to respond to the audit." 42. Plain it is the Council based its decision upon the information (highly material information) that was the most recent assessment of childcare provision in their area to enable them to make their decision in accordance with the section 6 statutory duty. It is quite impossible to say with any conviction that the Council were presented with a misleading picture when they had up-to-date information on a crucial issue. The Director makes this clear in a number of observations in his witness statement. It is pertinent to note that the claimant has never sought to challenge the conclusion that there were sufficient vacancies for childcare. On the up-to-date material before the cabinet, that was plainly a legally reasonable conclusion. 43. Whilst I accept the contention it was a highly material consideration to have an assessment of childcare provision in Darlington in order to comply with the Council's statutory duty, I cannot see there being any statutory or other obligation to consider the 2012 Review. Counsel of perfection may have suggested passing reference to it, but that really is the high water mark of criticism, and that in no way inflates the 2012 Review to a material consideration. It was at best historical information. It was a review of matters as of 2012 stemming from the 2011 Assessment, which was a fundamental piece of work. It is plain to me the Council carefully analysed the relevant data and concluded there was adequate provision, should the nursery close, at local nursery and primary schools. There was a significant debate in the Cabinet about this issue (see paragraphs 57 and 58 of the Director's statement of4 June 2013 ). 44. I feel it is important to repeat and state with pellucid clarity that the 2012 Review was not a material consideration. The material consideration was the adequacy of other provisions so as to comply with the statutory duty. Whether the Council chose to look at the historic picture or only part of it is a matter for them, subject to acting reasonably; more accurately, not Wednesbury unreasonably. 45. Try as I might to view the claimant's argument as benevolently as I can, I fear there has been an elision of the concept of something being legally a material consideration and facts forming part of the material consideration or not. Although historical facts may be interesting and of marginal relevance, or even forming a foundation of the current position, it is the current position in fact that is pivotal to the issue of material consideration. Subject to Wednesbury principles, what facts or evidence the decision maker places into the matrix when he is addressing a material consideration is really a matter for him. This is not an appellate court viewing factual merits. 46. I am very conscious of the helpful exposition of this by Lord Brightman in R v Hillingdon London Borough Council, ex parte Pullhofer[1986] AC 484 at 518: "