Local Government - February 2009
Increase in childcare proceedings fees challenge
unsuccessful
R on the application of London Borough of
Hillingdon and others v The Lord Chancellor and the Secretary
of State for Communities and Local Government
After the recent furore concerning the May
2008 increase in fees, payable by councils in childcare
applications, from £150 up to £4,825, four councils sought judicial
review of the decision to increase the fees, and lost. Since
1992, the fee income from the civil courts has had to cover the
cost of accommodation and judicial salaries; however, the fees in
family proceedings have historically been at less than ‘full
cost’.
The grounds of
challenge
Perhaps more to make a point than expecting
to win, the judicial review was brought on five grounds, claiming
that the Fees Orders were unlawful on the basis that they were:
- made without any consultation as to the
principle of whether court fees paid in public law proceedings
should be increased to ‘full cost’ levels;
- irrational;
- made without regard to a relevant
consideration and/or under a mistake of fact;
- defeated the claimants’ substantive
legitimate expectation that the increase in fees would be fully
funded by Central Government; and
- had a degree of retrospective effect.
Lack of consultation
In
relation to the first ground, section 92 of the Courts Act 2003
permits the Lord Chancellor to prescribe court fees by order,
provided he has consulted the people specified in s92(5) which
includes the President of the Family Division. It is of
course perfectly possible that in framing his response to the
consultation, the President of the Family Division could choose to
consult those potentially affected by the new order. It was
argued on behalf of the claimants that there was a common law duty
to act fairly, and/or the doctrine of procedural legitimate
expectation applied to the circumstances. Since the inception
of the Family Act 1989, local authorities had ‘benefited’ by paying
reduced court fees; they would now be deprived of this benefit.
However, consultation with local authorities was not mandatory, and
indeed the ‘existence of the statutory duty to consult is fatal to
the claimants’ case on consultation’. As Lord Justice Dyson
commented:
‘If in truth, the real significance of the
proposal was its implication for vulnerable children, then it is at
least arguable that the consultation should go wider than merely to
local authorities and should at least include bodies concerned with
child welfare. But how much wider? These are difficult
questions. They raise matters of public interest. Where
Parliament has decided, the courts should not enter the arena and
impose a different duty of consultation.’
Irrationality
In
relation to irrationality, it was argued that the reasons put
forward by the defendants to justify the decision to increase court
fees were inconsistent and contradictory; in judicial review terms
the decision was irrational. This was the ground which
probably stood the greatest chance of success, as indeed Mr Justice
Bennett commented his ‘mind ha[d] wavered’ over the issue.
However, the Court held the decision was not irrational, and as
Lord Justice Dyson stated:
‘Many people find unconvincing the reasons
advanced by the Government in justification of the increased
fees. But the policy is not irrational and is not
unlawful. If it is not unlawful, the fact that the reasons
put forward in justification of the policy may be unconvincing is
of no relevance. That is a matter for political debate and
ultimately for Parliament.’
Mistake of fact
The
claimants also argued that the Fee Orders were made without regard
to a relevant consideration and/or under a mistake of fact.
This ground was swiftly rejected by Lord Justice Dyson who noted
that Bridget Price, MP the Minister responsible for the Fees
Orders, knew there was £40 million to be distributed amongst local
authorities by way of Formula Grant.
Legitimate
expectation
In relation to the argument that there
had been a breach of substantive legitimate expectation, it was
contended on behalf of the claimants that:
‘assurances were given by the responsible
Ministers to the effect that (i) the total Formula Grant had been
or would be increased by an amount equivalent to the estimated
total increase in court fees for the year 2008-09 and (ii) each
local authority would receive sufficient additional funding to pay
the fee increases.’
However, in order to be relied upon the
assurances must be ‘clear, unambiguous and devoid of relevant
qualification’; R v Inland Revenue Commissioners, ex parte
MFK Underwriters [1990] 1 WLR 1545. Lord Justice
Dyson held that the assurances did not satisfy that requirement, as
they were ambiguous as to whether the total amount of money paid to
local authorities collectively would fund the increase (there would
be some ‘winners and losers’), or that each local authority
individually would be fully funded. Accordingly, the
ambiguity meant that this ground also failed.
Retrospective
effect
The Fee Orders applied to applications
made after the 1st May 2008, or, if an application had
been made before this date, the new fees would apply if the hearing
took place after the 14th May 2008. Consequently,
it was argued by the claimants that the Fee Orders were
retrospective and they should have been consulted about them.
However, the transitional provisions reflected established policy
in relation to the effect of fee changes in proceedings which were
issued before the changes occurred. Accordingly, Lord Justice
Dyson rejected this ground of appeal:
‘it would be very surprising if there was a
duty to consult local authorities on this one narrow issue in
circumstances where (as I have held) there was no duty to consult
them on the fundamental question of whether the fees should be
increased to ‘full cost’ levels.’
Conclusion
Given the
recent condemnation surrounding the death of baby P, childcare
proceedings are very much in the public arena. Indeed, it has
been reported that there was a 26% increase in childcare
applications in the immediate aftermath of the trial. Local
authorities have to take their child protection responsibilities
seriously and act when cases meet the threshold criteria,
regardless of the cost of this.
The interests of vulnerable children must
continue to be safeguarded by local authorities, and as Lord
Justice Dyson concluded:
‘Local authorities have been and will continue
to be so compensated in public law family proceedings…the
compensation is sufficient to avoid any real risk that the new fee
regime may lead to the interests of vulnerable children being
harmed. Any measure that is said to have the potential to
harm the interests of children must be carefully scrutinised to see
whether it in fact carries with is a risk of harm. I have
given my reasons for concluding there is no such risk here.’
Catriona Sangster
Weightmans LLP