Tuesday 3 January 2012

Join the West Lancs Fighting Fund today

On 23rd December 2011, West Lancashire Borough Council was issued with a "letter before claim" by legal firm Irwin Mitchell over the cuts announced at the Council meeting on 19th October 2011.  The whole of that letter is copied below. The council has until 6th January 2012 to confirm that it is quashing its current plans for cuts, or face the commencement of Judicial Review proceedings.

To take the case forward to Judicial Review, it is necessary to raise a "fighting fund" as a contribution to legal costs.  The fund will be taken into account as and when the courts consider whether the case should go forward to full Judicial Review. If you want to help fight the illegitmate and unfair process used by the Council to impose cuts on the people of West Lancashire, please consider making a donation to the fund.  You can do so electronically by clicking on http://www.gofundme.com/bvdz8 and following the payment instructions there.

The case against the Council is set out in some detail in the letter before claim, copied below.  In summary, the case is that:
The local authority has failed to carry out a proper consultation in reaching its decision to implement the proposals to reduce expenditure identified in their Major Services Review.  The consultation material provided by the local authority carried insufficient detail to allow the public to make an informed view on the proposals.
The cut off date for contributions is 17th January 2012, as the action must be initiated within 3 months of the Council's decision on 19th October 2011.  So please don't delay, contribute today.

Any contribution will be gratefully received.  You will be kept updated of progress on this website.

Yours



The West Lancs Fighting Fund



The letter before claim sent on 23rd December 2011


Our Ref:           MCX/xxxxxxxxx

West Lancashire Borough Council
PO Box 16
52 Derby Street
Ormskirk
L39 2DF

BY POST AND FAX

Mathieu Culverhouse
mathieu.culverhouse@irwinmitchell.com
Secretary:  xxxxxxxxxx
Tel:  0114 274 4642
Fax:  0161 839 9804


23 December 2011



Dear Sirs

FORMAL LETTER BEFORE CLAIM

OUR CLIENT: xxxxxxxx (DOB xx.xx.xxxx) OF x xxxxxxxxx, xxxxxxx, xxxxxxx, LANCASHIRE, xxxxx

This is a formal Letter Before Claim in accordance with the Judicial Review Pre-Action Protocol.

The Claimant

We are instructed by the above named client with regard to the decision of West Lancashire Borough Council, taken on 19 October 2011, to implement budget cuts following an inadequate consultation process.

Background

The Claimant is xx years old and has is a resident of xxxxxxxxx, West Lancashire.

On 19 October 2011, the local authority held a Council meeting, which formally approved a number of proposals to reduce local authority expenditure following a Major Services Review. It is understood that the Major Services Review first came before the local authority in July 2011, and was considered under part two of the agenda, with the exclusion of the press and public. The local public and stakeholders were invited to give their views on the proposals in a consultation exercise in September 2011 and the local authority considered all the responses at the Council meeting of 19 October 2011.

Grounds of Challenge

The Claimant’s case is that the local authority has failed to carry out a proper consultation in reaching its decision to implement the proposals to reduce expenditure identified in their Major Services Review.

The consultation material provided by the local authority carried insufficient detail to allow the public to make an informed view on the proposals. For example, approximately a quarter of the cuts package, £428,220, was set out in the following terms:

“Reduce back-office costs with minimal effect on front line services. This includes savings in various areas including administration, secretarial support, insurance, accountancy, customer services, housing services, street scene.”

The consultation documentation provided no detailed assessment of how the cuts were to be divided across these departments, no further assessment of what the impact of these cuts would be, and no rationale to explain to the public why these posts, once deemed necessary for service delivery, are no longer required.

In addition, the consultation material provided by the local authority excluded key information, which may have changed an important statement within the consultation. The consultation goes on to provide that the local authority proposes to:

“Bring together the street cleaning and grounds maintenance teams into one front-line service unit, tackling all areas of work. There will be minimal impact on the service, but a reduce ability to respond to unexpected issues beyond the agreed contract…”

It later became apparent that the above proposal will result in the loss of 36 jobs, a fact which was omitted from the consultation material and is relevant to the public to enable them to make an informed decision on whether the cuts will impact upon them.

The consultation process was also overly restrictive, particularly in respect of the word limit set on the online consultation forms, this being the principal method of consultation offered. The restrictions limited the comments that participants were able to make and provided no advice as to what to do if a participant wanted to say more.

The local authority failed to interpret the consultation responses accurately and impartially. The consultation received 39 responses, an example of which is from the Hesketh with Becconsall Parish Council. The response stated simply that “this Parish Council noted the report at their September meeting”. This neutral response, however, has been interpreted by the local authority in the following way:

This response reflects that there is acknowledgement that the Council has to make some difficult decisions given the financial position, and broadly supports the approach taken”.

It is disputed that the Parish Council’s response provides broad support for the proposals set out in the consultation.

A separate response provided:

It is impossible to say precisely [what change would have the most impact] because the changes laid out around, for example, back office costs, are far too vague. There needs to be much more detail on what these changes are and how they will impact on frontline services, given that the back office function would not have been in place in the first place had they not deemed needed by the Council.”

This response was followed by:

            “The Council needs to start the review process again, as this consultation exercise is a nonsense”.

The officer response to the first substantive paragraph is simply, “noted”. The suggestion of beginning the consultation process again is not responded to.

In a speech defending the local authority’s approach, the Leader of the Council, stated that no participant of the consultation had seen fit to bring forward alternative savings. However, one consultation response reads:

“The Council has not as yet made any real attempt to identify income potential. As just two examples of where the Council is ignoring income potential:

(a)     We know that the Clinical Commissioning Groups are looking in many areas to share back office functions from 2013-14, but it seems that there has been no dialogue.

(b)    Many Councils have well advanced plans for major income streams from the development of solar technologies (Feed in Tarriff, etc.) on their properties (including Council housing) but this Council has not yet done anything in this regard. It is not, therefore, reasonable to set out the type of cuts here envisaged without exploring new avenues for income.”

The above participant therefore does bring forward an alternative option, although this focuses on income growth, rather than alternative methods of cutting costs.

Further, it is understood that the local authority implemented certain proposals contained in the consultation before the consultation period had ended. It has been revealed that the Leader of the Council wrote to his French and German ‘twin town’ colleagues on 22 July 2011 stating that:

“The budget which we have for Town Twinning and in particular the Twinning games has been deleted – it was a decision which I personally was disappointed about but in the current financial climate and the further budget restrictions in the year ahead left little room for manoeuvre.”

It therefore appears that the Leader of the Council has predetermined the outcome of the consultation, specifically in respect of the proposal to cut the Twinning games budget, but also more generally.

In addition, it is noted at the beginning of the agenda item of the Council meeting held on 19 October 2011, that the Mayor did not want the agenda item to last long, as the matter had already had full discussion at the July full Council meeting. The July meeting was held before the consultation began and was concerned with the authorisation of the consultation, rather than reviewing the results. This action strongly suggests that the findings of the consultation were superfluous and that the decision on the proposed cuts was pre-determined.

Scrutiny of the consultation process through the local authority’s normal Overview and Scrutiny mechanisms was not undertaken. Under the 2007 Councillor all for Action legislation, an opposition councillor succeeded in having several issues relating to July 2011 Council papers placed on the agenda of the Corporate Overview and Scrutiny meeting to be held on 23 September 2011. However, it is understood that the Chair of the Overview and Scrutiny meeting declared the meeting closed before that agenda item could be taken, thus denying a legitimate scrutiny opportunity.

The essential requirements for a lawful consultation were set out in the case of R v North and East Devon Health Authority ex parte Coughlan [2001] QB 213. The Coughlan set out the following principles:

1.       Consultation must be carried out in good time, so that responses to the consultation can still genuinely be taken into account before the final decision is made;

2.       There must be enough information so that people responding to the consultation understand the proposals and can make an informed response;

3.       Sufficient time must be allowed for responses to be made to the consultation; and

4.       There must be genuine consideration of the responses to the consultation.  It is not sufficient for a public body simply to pay ‘lip service’ paid to the responses.

In the present case, as outlined above, the Council has failed to provide enough information to allow people responding to the consultation to make an informed response, and has failed properly to take into account the responses to the consultation before reaching its decision.

Details of the Action that West Lancashire Borough Council is Expected to Take

We write to request that the local authority:

1.       Confirm in writing that it accepts that it has failed to comply with its duties and will quash the current decision to implement a Major Services Review.

2.       Confirm in writing that should it wish to retake the decision that it will carry out a fresh consultation in accordance with the Coughlan principles.

3.       Immediately cease all work and actions on the implementation of the Major Services Review pending the outcome of the fresh consultation at 2 above and a taking of a new decision.

Details of the Legal Advisers Dealing with this Claim and Address for Reply and Service of Court Documents

Mathieu Culverhouse
Irwin Mitchell LLP
Bauhaus, Rossetti Place
Quay Street, Manchester M3 4AW
DX 14368 Manchester

Tel: 0161 838 2390
Fax: 0161 839 9804

Proposed Reply Date

If we do not receive a response within 14 days we are instructed to issue Judicial Review proceedings.

We can confirm that our client will have the benefit of a public funding certificate in respect of this matter, details of which will be provided in due course.

We look forward to hearing from you by 4pm on 6 January 2011.


Yours faithfully





IRWIN MITCHELL LLP