De-risking Difficult Decisions


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In a time when local authorities are working hard to balance the books, they are faced with difficult decisions to make about cuts to jobs, funding and services.

At the same time, individuals, campaigners and pressure groups are increasingly taking action through the courts to challenge those decisions and protect the status quo. Charlotte Clayson, Partner, considers how local authorities can look to de-risk those decisions and manage the difficulties they present.

Balancing the Books

Soaring energy prices, inflation at a 30-year high and set to rise further, a cost-of-living crisis. Add to that the aftershocks of the pandemic still being felt keenly and the effect on wallets around the country is hard to underestimate.  Local authorities have not been spared from economic uncertainty and continue to come under immense pressure to find ways to balance the books. As we come to the end of the financial year, and with the impact of the Chancellor's Spring Statement being worked through, local authorities are faced with achieving millions in savings to present a balanced budget.

Difficult decisions have to be made about how spending can be cut, revenues increased, and how the important work of local authorities can continue within ever tighter budgets. Which projects take priority, which services are reduced and what services might be commercialised are decisions which, if not taken with appropriate care, can also be susceptible to challenge through the courts.

Challenging times

This is not new - whether as a result of formal spending reviews, or a local authority's day-to-day decision making against a backdrop of squeezed budgets, in a time of flux and uncertainty those legal challenges tend to increase as individuals look to protect those things that are important to them and their communities.

But 2022 sees more risk to those on the receiving end of challenges. An increased sense of engagement in public decision making has been combined with access to the courts becoming much easier. There are an increasing number of campaign groups supporting those who wish to challenge, crowd funding for legal fees has become more common place, and more organisations are being set up to focus on strategic litigation holding public bodies to account. We've also seen Data Subject Access Requests and Freedom of Information Act requests used as a key tool at the outset of any challenge to obtain early and extensive disclosure and tie up resources.

Legal action can focus on huge projects being derailed or slimmed down, or on matters that affect just one or a handful of individuals very personally. We've seen challenges around housing allocation, closure or reduction of core services and facilities, individual educational and social care related decisions, and the impact of redevelopment of inefficient and out of date buildings.

Whilst challenges often relate to financially driven decisions of public bodies, they also touch upon other issues - for example, decisions that impact environmental and sustainability issues are coming under increasing scrutiny, especially for those local authorities that have declared a climate emergency.

Local authorities must be ready to deal with these challenges and should be doing the groundwork in anticipation of those now - as and when the decisions are made - not after the event.

De-risking

No decision or legal challenge comes with zero risk but there is plenty that local authorities can do to ensure that those risks are minimised. In times of uncertainty, robust decision-making is the first line of defence for many public bodies faced with opposition on difficult or sensitive topics.

Whilst so much about resisting challenges is fact specific, there are common themes we see crop up again and again: ensuring that these issues are considered in advance of and during the decision-making process can make a huge difference to how far a challenge might go, and even whether one materialises at all. 

  • Do your homework: what have you said about the topic in the past? This includes promises or statements you may have made to stakeholders about what you will do or how you will do it. Those may amount to a legitimate expectation and that may be difficult to depart from without good reason. Don't forget to consider wider reaching policies and statements that might be engaged, such as or whether a consultation will be undertaken, or commitments around tackling climate change.
  • Equality: have you considered the impact that the decision might have on those with 'protected characteristics' (age, disability, gender reassignment, pregnancy and maternity, race, religion and belief, sex and sexual orientation), and have you considered the requirement to (amongst other things) take steps to eliminate discrimination and advance equality of opportunity within your communities?
  • Listen: are you required to or is it a matter of good practice to consult? It may well be appropriate to consult with relevant stakeholders prior to making any decisions: if a consultation is undertaken, make sure that it provides sufficient information and time for stakeholders to respond, and to maximise engagement. Don't pre-determine the outcome of that consultation and ensure the responses are given proper consideration.
  • Considerations: has your decision-making process taken into account all relevant facts? Any irrelevant facts must be disregarded, and you must act reasonably in determining how much weight is given to any particular factor and more generally in making your decision.
  • Document: carefully document your decision-making process and the matters that you have considered as part of your deliberations. Not only will this ensure that minds are focussed but it will also act as an audit trail in the event of any challenge to explain how a decision was made. This can often discourage a challenge altogether or knock it out at the earliest opportunity.
  • If in doubt, ask: Don't be afraid to take early advice on your legal obligations, and ensuring your decision-making processes are the best they can be. We are often involved at the outset of difficult decision-making processes and can guide you through the appropriate steps to mitigate the risks inherent in your decisions, letting you get on with the business of serving your constituents.
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