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Three ways to challenge the cuts in court

High CourtCampaigners are increasingly looking at legal ways to challenge public spending cuts. A procedure called judicial review allows certain cuts to be challenged in the High Court. Judges can rule on whether a public authority’s decision is lawful.

Here are three key grounds for challenging cuts in court – though there may be others.

Discrimination

Cuts tend to have the greatest impact upon the most disadvantaged in society, including groups which already face discrimination. There are laws which are intended to address inequality suffered by certain groups.

For some years public authorities have been obliged to consider the need to eliminate discrimination and to advance equality of opportunity for those disadvantaged due to sex, race or disability. From 6 April, the 2010 Equality Act (created by the last Labour government) extends this obligation to include those disadvantaged due to sexual orientation, religion or belief, age, pregnancy, maternity and gender re-assignment. Disadvantage due to socio-economic inequalities was the most controversial addition introduced by the Equality Act, and would have been most useful to cuts challenges, but has been shelved by the Coalition government.

Public authorities do not have to reach decisions that eliminate discrimination so the Equality Act is not a trump card. However if no thought has been given to whether disadvantaged groups will be disproportionately affected by the cut the Court can strike down a decision and send the public authority back to the drawing board.

Generally an Equality Impact Assessment will have to be carried out. One of the first things campaigners can do – without the need for a lawyer – is write to the public authority to request a copy. If an Equality Impact Assessment has been completed but has not taken on board discrimination issues properly the public authority can be asked to re-think.

There are three recent examples of attempts to use these provisions to challenge cuts. The Fawcett Society brought a challenge alleging that the October 2010 Spending Review had a disproportionate impact on women. The judge dismissed the claim on a technicality about time limits – perhaps because the implications of a Fawcett Society victory were too great to contemplate.

A second challenge in January 2011 was more successful. A case was brought by Roma users of the Roma Support Group, challenging a cut of £10 million to voluntary and community groups all over London. The judge ruled that the London Councils had not conducted a proper Equality Impact Assessment and quashed the decision.

A third challenge is currently being brought by two teenagers contesting the tuition fees rise on the basis that it disproportionately impacts on those from ethnic minority backgrounds.

Lack of consultation

A decision can also be overturned by a judge because there has been inadequate consultation. In 2006 a group of lawyers representing victims of miscarriages of justice brought a challenge to the decision of the then Home Secretary, Charles Clarke, to abolish a compensation scheme overnight without warning. The Court of Appeal dismissed the claim saying that there was no duty to consult the lawyers, but stated that where there has been a promise to consult or a prior practice of consultation there would be a duty.

Therefore an organisation which would usually be consulted on issues that affect them, or a group or community that they work with, could challenge a funding cut that has been brought about without proper consultation. This would be most likely to succeed when the public authority has not understood the full impact of the cut or where those challenging have specialist knowledge that could have made a difference to the changes.

In February 2011 I represented two women who had been trafficked into the UK in a legal challenge to a plan by the Ministry of Justice to introduce a new funding model which denies victims of trafficking the accommodation and support to which they are entitled under European law. We argued that there was a failure to consult the Poppy Project, the organisation which currently provides such accommodation, as well as no Equality Impact Assessment. The Ministry of Justice revised their plans after the judicial review was lodged in court.

Irrationality

Cuts could also be challenged on the grounds of “irrationality” if, for example, the decision would lead to an utterly different outcome to that intended or create such an unacceptable scenario that no reasonable decision maker could have reached the decision. However judges set a very high threshold in such cases.

There are three challenges currently underway by magistrates seeking to challenge closures of their Magistrates’ Courts on the basis that the assessment of savings is inaccurate, that other courts could not take the overflow and that legal aid costs would increase due to the need to travel elsewhere.

There have been reports in the press of legal advice being taken in relation to cuts of various services, including libraries and forests. The strategies employed and outcomes of any legal actions should be shared among campaigners and publicised to help inspire others. If you are aware of a legal challenge please send it to False Economy or tell us about it in the comments below.

Nogah Ofer is a solicitor at Bhatt Murphy solicitors.

Note: Readers considering mounting a legal challenge should first seek professional legal advice. Success in court may only delay a cut rather than stop it outright. Costs can be significant, though in some cases those directly affected by a cut may be entitled to legal aid.

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