LORD JUSTICE DILLON: Preliminary
The court has before it two appeals against orders made by Popplewell J. on 9th July 1992 whereby he dismissed two substantive applications for judicial review which he had heard together over 6th, 7th and 8th July.
Both applications concern the highly emotive subject of the closure by local authorities of residential homes for old people. In the one case the local authority is the Devon County Council and in the other case it is the Durham County Council.
In each case the applicants for judicial review are ladies who, before the resolutions for closure of the homes in question, had been accepted as permanent (as opposed to temporary) residents in these homes. In the Devon case, the applicants are Mrs Baker, now aged 91, a resident at the Torry Brook Residential Home at Plympton, and Mrs Johns, now aged 90, a resident at the Ingleside Residential Home in Plymouth. In the Durham case, the applicants are Mrs Broxson, now aged 86, and Mrs Curtis, also 86, both residents in Ridgeway House at Wingate in the Easington district of County Durham.
Two important questions are raised in each appeal.
1. Consultation
It is said for the applicants that each county council owed a duty in law, before resolving to close a residential home, to consult the permanent residents in that home over the closure of the home, (and not merely over what was to happen to the residents after the home was closed). It is said that what consultation should amount to was a matter of some flexibility, and not governed by strict rules, and to that I return below. It was accepted by the Councils that they owed the residents a duty to act fairly in making the decision to close a home, and it was submitted for the applicants that the duty to consult was an aspect of the duty to act fairly; see generally the observations of Lord Bridge of Harwich in Lloyd v. McMahon [1987] A.C.635 at 702H-703A. It was further urged for the applicants in the Devon case that specific promises of consultation had been given by Mrs Russell, the Chairman of the County's Social Services Committee, in two letters, one of 8th January 1990 and the other of 12th June 1991, to which I shall have to come; it will then be necessary to consider the outcome, and effect in law, of those letters in the context of the facts.
2. Alternative remedy
It was accepted by the councils that the jurisdiction of the courts to grant relief by way of judicial review was not ousted by the existence of an alternative statutory remedy available to the applicants; see the observations of Lord Bridge of Harwich in Leech v. Deputy Governor of Parkhurst Prison [1988] A.C.533 at 562D and Woolf L.J. in R. v. Inner London Education Authority, ex parte Ali [1990] 2 Admin L.R. 822 at 835H. But it was submitted that such relief ought not to be granted because of the alternative remedy of an application to the Secretary of State under section 7(D) of the Local Authority Social Services Act 1970 ("the 1970 Act") introduced into that Act by the National Health Service and Community Care Act 1990 ("the 1990 Act"). Conversely it was urged for the applicants that the alternative remedy under section 7(d) did not, or did not clearly, apply to what they sought by way of judicial review.
Background
By section 21 of the National Assistance Act 1948 ("the 1948 Act") and directions made by the Secretary of State thereunder the County Councils became bound to make arrangements for providing residential accommodation for persons who by reason of age, infirmity or any other circumstances are in need of care and attention which is not otherwise available to them. The residential homes with which we are concerned were established by the Devon and Durham Councils under that section. The homes so established were managed by the councils, but it is not in doubt that any council had power, in appropriate circumstances, to close a home which it had established. It is not claimed that the fact that an elderly person had been admitted as a permanent resident in a particular home gave that person a right to continue to reside in that particular home for the rest of his or her life. It is accepted that there might be occasion for the home to be closed or for residents to be moved from a particular home. What is asserted is merely that the residents have a right to be consulted, and to have any views they or their friends may express considered before any decision is taken.
Subsection 23(2) of the 1948 Act envisages that by reason of a change in a person's circumstances he may be no longer qualified to receive accommodation under the 1948 Act or may become unsuitable therefor. But that is not relevant to the present issues.
Section 2 of the 1970 Act required every local authority to establish a Social Services Committee and provided further that there should stand referred to that committee all matters relating to the discharge by the authority of their functions under the enactments specified in the first column of Schedule 1 to the 1970 Act. These include section 21 and the immediately following sections of the 1948 Act. Section 3 of the 1970 Act defines the expression "social services functions" as meaning the functions of the local authority relating to matters which stand referred to the Social Services Committee by virtue of section 2. The importance of this definition is that the expression "social services functions" is used in the new sections 7(B) and (D) of the 1970 Act introduced by the 1990 Act.
Section 7(B) provides for the establishment of a procedure for considering any representations or complaints by or on behalf of a qualifying individual (which would include a resident in one of the homes) in relation to the discharge of, or any failure to discharge, a local authority's social services functions in respect of that individual.
Section 7(D) provides that if the Secretary of State is satisfied that any local authority has failed to comply with any of its duties which are social services functions (with an exception not material to the present case) he may make an order declaring that authority to be in default with respect to that duty and may give directions for the purpose of ensuring that the duty is complied with. Any such directions are to be enforceable by mandamus on the application of the Secretary of State.
Section 7(D) replaced section 36 of the 1948 Act which had similar provisions for the Secretary of State - then the Minister - to declare a local authority to be in default and to give directions for the purpose of remedying the default, but it envisaged a different procedure if the local authority failed to comply with the directions.
It was established, in general, in relation to section 36 that if any one had a complaint that a local authority had failed to discharge any of its statutory functions, the only way of securing the discharge of those functions was by an approach to the Minister under section 36 and not by an application to the court. See Southwark London Borough Council v. Williams [1971] Ch.734, a decision of this court where Pasmore v. The Oswaldtwistle Urban District Council [1898] AC 387 was applied.
In addition to many other new provisions, the 1990 Act imposed a duty on local authorities, by subsection 46(1) to prepare and publish a plan for the provision of community care services in their area. "Community care servies" were defined as meaning services which a local authority provided or arranged to be provided under certain statutory provisions which include Part III of the 1948 Act, which in turn includes section 21.
In carrying out its function under subsection (1) of section 46 the local authority was bound, under subsection (2) of that section, to consult District Health Authorities, Family Health Services Authorities, local housing authorities, and various voluntary organisations and bodies. The judge found that those statutory consultations duly took place in Devon and in Durham for the purposes of the preparation of the draft community care plans of those counties. But he rejected the submission that the fact that Parliament had required consultation with the bodies specified in subsection (2) of section 46 showed that no further consultation with any one else was required before it was decided to close a residential home which would be superfluous under the county's community care plan. That submission has not been put forward in this court and I need say no more about it than that I agree with the judge that subsection 46(2) has no relevance to the issues which he had, and we have, to decide.
Against that background, I turn to consider separately the cases against the Devon and the Durham County Councils, and I take the Devon case first.
The Devon Case.
The actual resolution of the County Council, in effect adopting proposals for the closure of the Tory Brook and Ingleside Residential Homes and certain other homes was finally passed on 24th October 1991. The proposal had been approved by a Working Party on Homes for the Elderly at a meeting held on 3rd September 1991 and approved at a meeting of the Social Services Committee held on 19th September 1991, before it came to the Council itself for approval.
But there had been a long previous history.
It appears that in June 1988 the Social Services Committee had commissioned a review of the development and provision of residential homes for the elderly (though the date is given as November in one affidavit). The start of the review coincided with the publication of a report by Sir Roy Griffiths to the Secretary of State, called "Community Care Agenda for Action", which was apparently considered as likely to be followed by a White Paper which would be the precursor of new legislation - in the event the 1990 Act. In the event therefore the informal review commissioned in 1988 was subsumed into the preparation of the draft community care plan under section 46(1) of the 1990 Act.
But it seems that even earlier, while, possibly, preliminary consideration was going on, rumours started going round as to possible closures, and we are told that in August 1988 there was a meeting with the residents and their relatives at Ingleside at which "the process of review being undertaken was outlined and the potential vulnerability of Ingleside highlighted". This would have been shortly after Mrs Johns had become a permanent resident at Ingleside.
So far as Tory Brook is concerned, the evidence of Mr Williamson, the Director of Social Services, is that as part of his regular programme he visited Tory Brook on 13th September 1990, together with the District Manager, so that he could meet with residents and staff in the later afternoon. He says that the debate centred on the issue of closure of Homes in Devon, and very strong feelings were expressed as to why Tory Brook should not be included in the programme. This was after Mrs Baker had become a permanent resident in Tory Brook. It would seem that the debate must have been started by staff, residents or relatives rather than by Mr Williamson himself. But, whichever way it was started, the residents had the opportunity of expressing their views on the closure of Tory Brook to the council's officers.
I have no doubt, on the evidence as a whole, that the council's officers and the councillors were at all material times well aware that the residents at Ingleside and Tory Brook saw no good reason for the closure of those residential homes and were strongly opposed to their closure.
We know that in October 1990 a support committee was formed for Tory Brook. One of the moving spirits was Mrs Hill, the daughter of Mrs Baker. The first meeting was held on 15th November 1990 and was attended by about 12 0 people including all 48 residents, councillors from each of the political parties, doctors, representatives of the churches, relatives and friends. A letter was sent in October by Mrs Hill to Dr David Owen, then a local M.P., and was passed on by him to Mr Alan Clark, another local M.P.
Another group was formed called the "Keep Ingleside Open Group"; its object is plain from its name, and we have Mrs Hill's evidence that there was very close liaison between the Tory Brook support group and the Keep Ingleside Open Group.
The first of the two letters from Mrs Russell, that of 8th January 1990, was written to a Mrs Green who had written to express concern over the possible closure of the Ingleside Centre and to ask that her letter be read to the Social Services Committee at its meeting on 12th January. Mrs Russell said in her reply:-
"The meeting on the 12th January, in fact, is a special Social Services Budget meeting and the future of the Devon Local Authority Homes for the Elderly is not on the agenda. Ingleside and some of the other Devon Homes will be considered by a special working party of members on 25th January and the recommendations from that working party will be referred to the Social Services Committee on 1st February. However, there are one or two points I would wish to make, which hopefully will allay some of your anxieties.
The Social Services Committee is, in fact, evaluating all of Devon's Homes for the Elderly, which is a mammoth exercise, not likely to be completed until the end of the year. It is the result of the first part of the exercise which is being considered on 25th January and in that exercise two of Plymouth's homes were evaluated; one of them Ingleside. The recommendation to the members on 25th January is that no decision will be taken on the homes within the City of Plymouth until they have all been evaluated, allowing the management of the Social Services in West Devon to come to a corporate view concerning the need for provision of residential care in the City. I can advise you however that there is a high level of commitment in terms of retaining respite and day care at Ingleside.
I can also tell you that whatever the members' inclinations are concerning any of Devon's homes, the first thing that we are instructing our management staff to do is to organise a full consultation programme with the residents, carers, staff and unions alike, so there will be plenty of room for representation.
I will have your letter with me when the working party of members meet on 25th January in the event of Ingleside being specifically mentioned, but I have sent a copy to Mr A Wooderson, Assistant Director West, as he will want to consider your point of view when looking at residential, respite and day care needs in the City of Plymouth."
Mrs Russell's second letter, of 12th June 1991, was to a Mr Santillo, the Chairman of Keep Ingleside Open Group. He had written to Mrs Russell on 2 3rd May, saying that he had heard from her on 28th January that the report on Devon's Homes was nearing completion, and he had asked for an update and an indication when the final decision on Ingleside's future was likely to be reached. In her letter of 12th June 1991 Mrs Russell said:-
"Thank you for your letter of the 23rd May concerning the future of Ingleside. The review of our Homes is not just about possible closures, it is primarily an exercise about improving the quality of care provided by this Authority for the elderly and their carers, whether this be in their own homes or in residential care. I do want to assure you that better services for the elderly result from our review, particularly in the community, and there is undoubtedly an over-provision of residential care in Devon taking the private and voluntary sectors into account as well as local authority provision. The Committee want to see a better balance between community and residential care than exists at present. Elderly people and their carers can be assured that if there is any likelihood of change, as a result of all this, affecting their lives, then I am totally committed to a programme of the fullest possible consultation, and if change is to take place then each person will be dealt with as an individual and with sensitivity and tact. Nothing will be done in a rush and whether residential care is provided for a person either by the local authority, the private or the voluntary sector, the prime responsibility for the welfare and well-being of that person will remain with Social Services. I hope this letter will reassure you that every care will be taken in arriving at a decision."
In fact on 25th January 1990 the Social Services Committee Working Party on Homes for the Elderly recommended that the Assistant Area Directors be authorised (a) to initiate a full consultation programme with residents, carers/relatives, staff and trade unions in respect of the homes already evaluated commencing as soon as possible with those that are recommended to close, and (b) to commence preliminary work, including negotiations with other agencies, concerning implementation plans.
Mrs Russell has sworn in her affidavit that all she meant by the references to "consultation" in her letters was that, once it had been finally decided that a particular home should be closed there would be the fullest possible consultation about the relocation of the residents. No one doubts that Mrs Russell was acting in good faith throughout, but what she now says she meant is not what she said in the letters.
The judge seems to have thought that as Mrs Russell was acting in good faith, it would not be right to use her letters against the council; he distinguished, on the ground of Mrs Russell's good faith, the case of R. v. Liverpool Corporation, Ex parte Liverpool Taxi Fleet Operators' Association [1972] 2 Q.B.299. Mr Samuels Q.C. for the Devon County Council, accepts that that is not a valid ground for distinguishing the Liverpool case.
That is not, however, the end of this aspect of the Devon case.
As I have already said, the final meeting of the Working Party on Homes for the Elderly was on 3rd September 1991. Their recommendations were sent to the Social Services Committee for consideration at that committee's meeting of 19th September 1991. A letter was sent to each resident at Tory Brook and Ingleside on 5th September and to relatives including Mrs Johns' daughter-in-law, Mrs Pauline Johns. These letters explained that recommendations would be made to the Social Services Committee on 19th September 1991 that Tory Brook - or Ingleside - be closed. These letters also said that meetings would be held at the homes to discuss the implications arising from the recommendations for closure. The meeting for that purpose at Ingleside was held on 9th September 1991, and that at Tory Brook on 24th September.
The upshot of the letter of 5th September was that on 19th September two coaches were hired, as Mrs Hill tells us, to take residents of the Tory Brook Home and their relatives and supporters to Exeter to demonstrate against the closure. The coaches carried about 100 peaceful demonstrators, including about 3 0 residents, one of whom was Mrs Baker whose 90th birthday it happened to be that day. The demonstration appears to have achieved wide local radio and television coverage.
On 24th October 1991, when the closure were considered by the council itself, there was a further peaceful demonstration outside County Hall, Exeter, attended by about 1000 people. Five coach loads of demonstrators went from Plympton and Plymouth (i.e. from Tory Brook and Ingleside) and Mrs Baker was again among them, among some 25 of the Tory Brook residents.
The minutes of the council meeting of 24th October show that Councillor Miller, an opponent of the closure, presented a petition with 11,857 signatures in support of Ingleside. There were also petitions against the closure of other homes throughout the county and against closures generally. Moreover the County Council also had before it a resolution of the Plymouth City Council's Public Services Committee opposing the proposed closures of Tory Brook and Ingleside and requesting deferment.
It appears from Mr Williamson's affidavit that the debate at the meeting of 24th October 1991 lasted from 2.15 p.m. to 8.15 p.m. The minutes show that a substantial number of resolutions, some in general terms, and some relating to the closure of particular homes, were proposed by opponents of closure, debated and voted on.
It may be added that by 24th October, solicitors had already been instructed by Mrs Johns, and they had received co-operation from the County Solicitor in the way of the supply of documents and information.
There is no suggestion at all in the evidence that the residents at Tory Brook or Ingleside or their supporters acted to their detriment in reliance on the promises or assurances of consultation in either of Mrs Russell's two letters. On the contrary the Tory Brook Support Committee and the Keep Ingleside Open Group seem to have had, and taken, ample opportunity to publicise their cause and put before the councillors their objections to the closure of Tory Brook and Ingleside, and the grounds for those objections. There is no suggestion in the evidence of any fact, or argument in favour of keeping either home open, that the supporters of either home wanted to put to councillors but were prevented from putting.
We were referred to a judgment of Webster J. in R. v. London Borough of Sutton, Ex parte Hamlet where he set out from an earlier judgment the four requirements for adequate consultation. Without wishing to cast any doubt on that classification, it seems to me that the essentials of any consultation in the context of the present case are (1) that the residents should have known that closure of the homes was under consideration well before the final decision to close them was made, (2) that the residents should have had a reasonable time to put to the council their objections to the closure of the homes and (3) that the residents' objections should have been considered by the council.
As to that, (1) the residents did know that the homes were under threat well before the final decision to close them was made, and they knew also the general background to the threat of closure, viz that the council was making a comprehensive survey and assessment of all its residential homes for elderly people; (2) the residents had ample time to make any representations or objections to the council, and their supporters rallied round to help them; and (3) the council's permanent officers were scrupulously fair in putting before the councillors all representations and objections to closures which had come in from any one. On the facts the opposition of the residents to the closures and the views of the residents were very clear to the council.
I do not believe that each individual resident had an individual right to be consulted face to face by permanent officers or groups of councillors. Consultation can perfectly well be achieved by meetings held by council officers with the residents generally at a particular home or by views expressed through the support group.
The question of the closure of Tory Brook and Ingleside and the other homes in Devon selected for closure was fully ventilated and thrashed out, and on the facts, irrespective of any of the issues of law, I would refuse judicial review of the decision of the Devon County Council and dismiss this appeal.
The Durham case
The Durham case differs from the Devon case not merely in that there were no letters in the Durham case comparable to Mrs Russell's two letters in the Devon case, but also in that the matter of the closure of Ridgeway House did not have the long-drawn out history that the question of closures had in Devon.
The closure of Ridgeway House and of certain other residential homes was approved at a meeting of the Durham County Council Social Services Committee on Wednesday 15th January 1992.
The council had prepared a draft Community Care Plan under section 46(1) of the 1990 Act and that had been published in November 1991. It appears however to be in general terms and does not bear on the closure of individual residential homes. The statutory consultations under section 46(2) had duly taken place, and from these or possibly from eight public meetings about the draft plan held in different locations in the county, the council's officials had understood that residents in residential homes would be opposed to the closure of the homes where they were resident.
Nothing was done, however, about consultation with the residents over the closure of the homes before 15th January 1992, except that on the previous Friday, 10th January, letters were sent by hand to each home which was to be closed by the Director of Social Services, Mr Kemp. The substance of the letter was as follows:-
"For some time now the County Council has been concerned about the reducing number of residents in its Homes for Older People. This has been caused partly by the huge growth in the number of private residential homes and partly by our policy of enabling older people to stay in their own homes longer.
As there are now over 3 00 empty beds in the County Council's homes, it has been necessary to undertake a thorough review of the provision of residential care. While a range of alternative options have been considered, it has become clear that the County Council must reduce a number of its homes. It is with regret therefore, that I must inform you of my proposal to close Ridgeway House during 1992, as part of a rationalisation programme involving eight homes. The Social Services Committee will consider this recommendation at a special meeting on 15th January 1992.
Should the Committee approve my proposals, my overriding concern is that the future of each resident is given individual attention, and arrangements are being made to ensure that you are closely involved in planning the necessary move. The Team Manager responsible for the locality will contact you as soon as possible to begin this process. If in the meantime you wish to discuss any issue of concern to you, please ring Phil Dyson or George Lewis, Team Managers, at the above office."
Notwithstanding the very short notice, it appears from the minutes of the Social Services Committee Meeting of 15th January that petitions had been received by the committee in respect of Ridgeway House and the two others of the homes proposed to be closed. But the evidence does not indicate what individuals had organised that petition or what extent of opposition to the closure it indicated. The minutes also show that at the meeting of 15th January a motion was proposed by Councillor Moore, supported by Councillor Foote Wood, that the report of the Director of Social Services, which recommended the closures, be referred back to the officers, and that further consultation take place with the staff and residents concerned, as they had not been fully consulted on the matter; that motion was, however, rejected.
The impression I get from the papers is that, by contrast to the residents in the Devon homes who had long notice of what was being considered, the residents in Ridgeway House were helpless when told at virtually the eleventh hour that the closure of Ridgeway House was on the agenda for the meeting of 15th January.
The reasons why there was no earlier consultation with the residents over the closures seem to have been (1) that the council's officers did not believe consultation with the residents to be mandatory, because there was no statutory provision for consultation with the residents, and there was express statutory provision, in section 46(2) of the 1990 Act, for consultation with various bodies where that was required in connection with the preparation of the community care plan and (2) that the officers considered it impracticable to hold individual consultations with each of the residents in all of the council's 40 residential homes. As I have indicated, however, in my judgment on the Devon case, I do not think individual consultation with each resident separately was required; group consultation with all the residents in a particular home, at a meeting at that home, could be sufficient.
I come then to the main question of Consultation.
Obviously it could be said to be best practice, in modern thinking, that before an administrative decision is made there should be consultation in some form, with those who will clearly be adversely affected by the decision. But judicial review is not granted for a mere failure to follow best practice. It has to be shown that the failure to consult amounts to a failure by the local authority to discharge its admitted duty to act fairly.
The essentials of consultation in the context of the present case are, as I have said in my judgment on the Devon case, (1) that the residents should have known that the closure of Ridgeway House was under consideration well before the final decision to close it was made; (2) that the residents should have had a reasonable time to put to the council their objections to the closure of the home; and (3) that the residents' objections should have been considered by the council.
The law in this field is still developing, and it may be that the process of development has at the present time gone somewhat further in Australia than the decided cases have so far taken it in this country. For my part, however, I have found generally helpful the observations of Deane J. in the High Court of Australia in Haoucher v. Minister of State for Immigration and Ethnic Affairs [1990] 93 A.L.R. 51 at 52 where he said:-
"The notion of a 'legitimate expectation' which gives rise to a prima facie entitlement to procedural fairness or natural justice in the exercise of statutory power or authority is well established in the law of this country... The notion is not, however, without its difficulty. For one thing, the word 'legitimate' is prone to carry with it a suggestion of entitlement to the substance of the expectation whereas the true entitlement is to the observance of procedural fairness before the substance of the expectation is denied... In that regard, there is much to be said for preferring the phrase 'reasonable expectation' which has often been used in judgments in this court. For another thing, the vagueness of the phrase 'legitimate expectation', which enables it to be used as a convenient label for a broad category of circumstances which will give rise to a prima facie obligation to accord procedural fairness, may convey an impression of comprehensiveness with the result that the absence of an identified legitimate expectation is wrongly seen as a legal mandate for disregarding procedural fairness in any case where no legal mandate for disregarding procedural fairness in any case where no legal right in the strict sense is involved. Regardless of whether one can identify a right in the strict sense or a legitimate expectation, the reguirements of procedural fairness must be observed in any case where, by reference to 'the particular statutory framework'... it is proper to discern a legislative intent that the donee of governmental executive power or authority should be bound by them. There is a strong presumption of such a legislative intent in any case where a statute confers on one person a power or authority adversely and directly to affect the rights, interests, status or legitimate expectations of a real or artificial person or entity in an individual capacity (as distinct from merely as a member of a section of the general public). The rationale of that strong presumption is to be found not so much in sophisticated principle as in ordinary notions of what is fair and just. In that regard, it is important to bear in mind that the recognition of an obligation to observe procedural fairness does not call into play a body of rigid procedural rules which must be observed regardless of circumstances. Where the obligation exists, its precise content varies to reflect the common law's perception of what is necessary for procedural fairness in the circumstances of the particular case."
That leads to the following position in relation to the transfer of elderly residents from one local residential home to another:-
1. It is conceded that if, whether on the closure of a home or for any other reason, a resident is to be transferred from one home to another, she must be consulted over the home to which she is to be transferred.
2. It is also conceded by Mr Porten Q.C. on behalf of the Durham County Council that if there is no question of closing a home but for some reason it is desired to transfer a resident from one home to another, the resident would have to be consulted over her removal from the existing home as well as over the home to which she is to be transferred.
3. If the council had not sent the letter of 10th January 1992, but had passed the resolution of 15th January without any prior disclosure, and had then written to the residents in Ridgeway House saying, in effect, out of the blue "The Council has resolved to close Ridgeway House, and someone from the Social Services Department will be calling on you shortly to discuss where you should go", that would, in my judgment, shock anyone's sense of fairness and would warrant the quashing of the resolution for closure - subject to the alternative remedy point considered below - for want of prior consultation with the residents.
But the letter of 10th January did not, in my judgment, give the residents sufficiently early notice that the closure of Ridgeway House was under consideration, nor did it give them long enough to make representations to the council about the closure. Indeed that was not the purpose of the letter.
Therefore, in my judgment, the case of procedural unfairness in relation to the closure of Ridgeway House is made out.
I pass then to whether there was an alternative remedy available to the residents under section 7(D) of the 1970 Act which should preclude the grant of relief by way of judicial review.
Alternative remedy
A number of authorities on the question whether judicial review should be granted where an alternative remedy is available have been cited to us in the skeleton arguments or in the course of the oral hearing. Others were mentioned, without actual citation, during the oral argument. I have found particularly helpful the judgment of May L.J. in R. v. Chief Constable of The Merseyside Police, Ex parte Calveley [1986] Q.B.424 and the judgments of Sir John Donaldson M.R. and Parker L.J. in R. v. Secretary of State for The Home Department, Ex parte Swati [1986] 1 W.L.R. 477.
The duty of fairness, of which the duty to consult is an aspect, arises under the general law, but it arises in the present case in connection with the closure of a residential home for the elderly. The closure of such a home is part of the social services functions of the Durham County Council. But it is not clear to me whether the duty to consult is itself a social services function for the purposes of section 7(D) of the 1970 Act. In view of this, and as the issue is entirely one in law in a developing field which is peculiarly appropriate for decision by the courts rather than by the Secretary of State, I would hold that the applicants in the Durham case were not precluded from making their application for judicial review by the availability of another remedy; the case is one which it is proper for this court to entertain, differing in this respect from the judge.
There remains, however, one further point.
In the report of the Director of Social Services, Mr Kemp, prepared for the meeting of the Social Services Committee of 15th January 1992/ it is said that the closure of Ridgeway House would involve relocating 29 residents. The total bed space was apparently 38. It appears however that by the time of Mr Kemp's affidavit in the proceedings of 17th June 1992 the closure of the home had proceeded to the extent that there were currently only 12 residents remaining in Ridgeway House; a number of residents apparently chose - understandably - to move at the earliest opportunity if they were going to have to move at all. We do not know how far the process of closure has proceeded since the date of Mr Kemp's affidavit, or what the present position is. We will need therefore to hear further argument on what form of relief, declaratory or otherwise - if any - ought to be granted.
Generally
I should add that I regret that in this judgment I have not dealt specifically with many of the points on which the judge founded his judgment. But courtesy to the judge has had to yield to the logistics of getting a served judgment completed and handed down before the end of the present sittings.
LORD JUSTICE FARQUHARSON: I agree with both judgments.
LORD JUSTICE SIMON BROWN: I have had the advantage of reading Dillon L.J.'s judgment in these two appeals and agree with it entirely. I wish to add a judgment of my own, however, having regard to the considerable importance of the two legal issues at the heart of these appeals. These may be formulated as follows:
1. What if any process of consultation with residents is required if a local authority is to act fairly in deciding which of a number of old people's homes are to be closed as part of an overall reorganisation of this facility within its area?
2. Given the existence of the Secretary of State's default powers under section 7(D) of the Local Authority Social Services Act 1970, ought the courts in their discretion to decline to exercise their supervisory jurisdiction?
I turn at once to address these issues, adopting with gratitude my Lord's exposition of the facts and the legislative provisions in play.
1. Consultation
I would take as my starting point the admirably concise dictum quoted by Mr Bradley from Sir Robin Cooke's paper to the Commonwealth Judicial Colloquium at Oxford in September 1992:
"The administrator must act fairly, reasonably and according to law. That is the essence and the rest is mainly machinery."
This clearly accords with Lord Diplock's well-known classification of the three basic grounds upon which administrative action is subject to judicial control: illegality, irrationality and procedural impropriety - see Council of Civil Service Unions v. Minister for The Civil Service [1985] A.C.374 at 410.
What this case concerns is the administrator's duty to act fairly and in accordance with the procedural proprieties. How is the extent of this duty to be ascertained?
Much of the argument before us, not only in Devon but also in Durham, centred upon the concept (doctrine, principle, call it what one will) of legitimate expectation. This concept, as it seems to me, has now become so widely and variously invoked that it is time to examine what actual assistance can be derived from it, in particular in situations such as arise here in Durham.
It is first, I think, convenient to identify, at least in broad categories, various of the distinct senses in which the phrase "legitimate expectation" is nowadays used:
1. Sometimes the phrase is used to denote a substantive right: an entitlement that the claimant asserts cannot be denied him. It was used in this sense and the assertion upheld in cases such as R. v. Secretary of State for the Home Department, Ex parte Asif Mahmood Khan [1984] 1 W.L.R.1337 and R. v. Secretary of State for the Home Department, Ex parte Ruddock [1987] 1 W.L.R.1482. it was used in the same sense but unsuccessfully in, for instance, R. v. Board of Inland Revenue, ex parte MFK Underwriting Agencies Ltd. [1990] 1 All E.R.91 and R. v. Jockey Club, ex parte R.A.M. Racecourses Limited [1991] 3 Admin L.R. 2 65. These various authorities show that the claimant's right will only be found established when there is a clear and unambiguous representation upon which it was reasonable for him to rely. Then the administrator or other public body will be held bound in fairness by the representation made unless only its promise or undertaking as to how its power would be exercised is inconsistent with the statutory duties imposed upon it. The doctrine employed in this sense is akin to an estoppel.
Insofar as the public body's representation is communicated by way of a stated policy, this type of legitimate expectation falls into two distinct sub-categories: cases in which the authority are held entitled to change their policy even so as to affect the claimant, and those in which they are not. An illustration of the former is R. v. Torbay Borough Council, ex p. Cleasby [1991] 1 C.O.D. 142; of the latter, Ex parte Khan.
2. Perhaps more conventionally the concept of legitimate expectation is used to refer to the claimant's interest in some ultimate benefit which he hopes to retain (or, some would argue, attain). Here, therefore, it is the interest itself rather than the benefit that is the substance of the expectation. In other words the expectation arises not because the claimant asserts any specific right to a benefit but rather because his interest in it is one that the law holds protected by the requirements of procedural fairness - the law recognises that the interest cannot properly be withdrawn (or denied) without the claimant being given an opportunity to comment and without the authority communicating rational grounds for any adverse decision. Of the various authorities drawn to our attention, Schmidt v. Secretary of State for Home Affairs [1969] 2 Ch 149, O'Reilly v. Mackman [1983] 2 AC 237 and the recent decision of Roch J. in R. v. Rochdale Metropolitan Borough Council, Ex parte Schemet (unreported 24th July 1992) are clear examples of this head of legitimate expectation.
3. Frequently, however, the concept of legitimate expectation is used to refer to the fair procedure itself. In other words it is contended that the claimant has a legitimate expectation that the public body will act fairly towards him. As was pointed out in Attorney General for The State of New South Wales v. Quinn (1990) 170 C.L.R. 1, this use of the term is superfluous and unhelpful: it confuses the interest which is the basis of the requirement of procedural fairness with the requirement itself:
"No doubt people expect fairness in their dealings with those who make decisions affecting their interests, but it is to my mind quite artificial to say that this is the reason why, if the expectation is legitimate in the sense of well founded, the law imposes a duty to observe procedural fairness. Such a duty arises, if at all, because the circumstances call for a fair procedure and it adds nothing to say that they also are such as to lead to a legitimate expectation that a fair procedure will be adopted." per Dawson, J. in the Quinn case.
4. The final category of legitimate expectation encompasses those cases in which it is held that a particular procedure, not otherwise required by law in the protection of an interest, must be followed consequent upon some specific promise or practice. Fairness requires that the public authority be held to it. The authority is bound by its assurance, whether expressly given by way of a promise or implied by way of established practice. R. v. Liverpool Corporation, Ex parte Liverpool Taxi Fleet Operators' Association [1972] 2 Q.B. 299 and Attorney-General of Hong Kong v. Nq Yuen Shiu [1983] 2 A.C.629 are illustrations of the court giving effect to legitimate expectations based upon express promises; Council of Civil Service Unions v. Minister for Civil Service, an illustration of a legitimate expectation founded upon practice - albeit one denied on the facts by virtue of the national security implications.
Let me acknowledge at once that the above is by no means an exhaustive analysis of the concept of legitimate expectation - anyone interested in that should study instead Mr Paul Craig's illuminating article in 1992 L.Q.R. at page 79. Rather it is an attempt at a broad categorisation which may, I hope, clear away some at least of the many semantic confusions that have bedevilled this area of our law.
Insofar as the appellants in Devon rely upon the Russell letters, they are, of course, asserting a legitimate expectation of individual consultation in category 4. I propose to say little more about this than that I entirely share Dillon L.J.'s view that those concerned to keep open Tory Brook and Ingleside in fact advanced every possible representation in favour of their cause so that nothing could or would have been added to the decision-making process by the council honouring to the letter the precise promises of consultation given (unintentionally) in the Russell letters. I add only this: the circumstances in which those letters came to be relied upon only at a late stage of the proceedings, coupled with consideration of other letters passing between Mrs Russell and Mr Santillo in January and May 1991, leads me to conclude in any event that few if any residents were actually expecting individual consultation before the working party came to its critical final decision, and certainly none were counting on it. But that perhaps is to add little if anything to what Dillon L.J. has already said upon that case.
It is when one turns to Durham that the issue of consultation arises in its sharpest form, no promises or practice of consultation here being asserted by the appellants, no actual process of consultation being in fact afforded by the council. Durham, in short, on the facts, could hardly be more unlike Devon.
The legitimate expectation argument in Durham is advanced in these terms:
"The County Council's decision deprived the appellants of a benefit or advantage which they had hitherto been permitted by the County Council to enjoy and which they could legitimately expect either to continue indefinitely, or at least to continue unless and until the County Council communicated to them some rational ground for withdrawing the benefit on which they were given an opportunity to comment." (See paragraph F5 of Mr Bradley's skeleton argument.)
This, of course, is asserting a legitimate expectation in category 2 - certainly, Mr Bradley disavows, as inevitably he must, any attempt to assert a legitimate expectation in category 1.
As stated, the second category of legitimate expectation comprises those interests which the law recognises are of a character which require the protection of procedural fairness. What then is the touchstone by which such interests can be identified? It cannot be merely that the law insists they be not unfairly denied else there would be no point in introducing the concept of legitimate expectation in the first place; one would simply look at the decision in question and ask whether the administrator acted fairly in taking it.
I turn to the well-known passage in Lord Diplock's speech in Council of Civil Service Unions v. Minister for Civil Service where at page 408F he describes the two situations in which, by reference to their consequences, decisions will be held susceptible to review, the second situation (class (b)) being the one involving what he called a legitimate expectation. Class (b) arises, he said, when a decision affects someone:
"(b) by depriving him of some benefit or advantage which... he had in the past been permitted by the decision-maker to enjoy and which he can legitimately expect to be permitted to continue to do until there has been communicated to him some rational grounds for withdrawing it on which he has been given an opportunity to comment..."
(I cite only class (b)(i) - (b)(ii) depends upon an assurance and is therefore my category 4.)
Thus the only touchstone of a category 2 interest emerging from Lord Diplock's speech is that the claimant has in the past been permitted to enjoy some benefit or advantage. Whether or not he can then legitimately expect procedural fairness, and if so to what extent, will depend upon the court's view of what fairness demands in all the circumstances of the case. That, frankly, is as much help as one can get from the authorities -Lord Diplock's analysis supersedes, as I believe, all earlier attempted expositions of this doctrine such as that found in McInnes v. Onslow-Fane [1978] 1 W.L.R.1520.
In short, the concept of legitimate expectation when used (as in Durham) in the category 2 sense seems to me no more than a recognition and embodiment of the unsurprising principle that the demands of fairness are likely to be somewhat higher when an authority contemplates depriving someone of an existing benefit or advantage than when the claimant is a bare applicant for a future benefit. That is not to say that a bare applicant will himself be without any entitlement to fair play. On the contrary, the developing jurisprudence suggests that he too must be fairly dealt with, not least in the field of licensing.
With these thoughts in mind I return to Durham. That the appellants have hitherto been enjoying some benefit or advantage of which the County Council now propose to deprive them cannot be doubted. On the authorities they accordingly get to first base in terms of asserting a legitimate expectation of some procedural fairness in the decision-making process. But it is no good pretending that the authorities carry them or the courts a single step further than that. The fact is that it still remains for the court to say, unassisted by authority save only insofar as there may exist other cases analogous on their facts, whether that legitimate expectation ought to be recognised and, if so, precisely what are the demands of fairness in the way of an opportunity to comment and so forth.
As stated, I share Dillon L.J.'s view on the facts of this case that five days' notice of the proposed closure of Ridgeway House gave the residents wholly insufficient opportunity to make such representations as they would have wished to make in favour of their home being kept open in preference to others. I do not say that they needed to be consulted individually. Nor do I say that they needed to be informed of anything like the entirety of the material which would clearly be relevant to the council's eventual overall decision. It would have been sufficient to consult the body of residents as a whole, notifying them of the need to close a proportion of the county's homes, and inviting them to indicate what particularly they saw as the merits of their home and what reasons they would wish to advance for its retention in preference to others.
In expressing this view I do not wish to be taken as diluting in any degree the four part statement of the basic requirements of consultation originally formulated by Mr Sedley Q.C. in argument, and adopted by Hodgson J. in his judgment, in R. v. Brent London Borough Council, ex parte Gunning (1986) 84 L.G.R. 168, and approved thereafter by Webster J. in R. v. London Borough of Sutton, Ex parte Hamlet (26th March 1986, unreported save in the Encyclopaedia of Education Law) and by Woolf L.J. in R. v. Northamptonshire County Council, Ex parte Tebbutt (26th June 1986 unreported). The stated requirements are these:
"First, that consultation must be at a time when proposals are still at a formative stage. Second, that the proposer must give sufficient reasons for any proposal to permit of intelligent consideration and response. Third ...that adequate time must be given for consideration and response and, finally, fourth, that the product of consultation must be conscientiously taken into account in finalising any statutory proposals."
Gunning and Hamlet were both school closure cases. Webster J.
said in the latter:
"In the present case in my view the legitimate expectation of consultation involves, from the point of view of parents, the expectation that they will be given a fair opportunity constructively to criticise the proposal, and to express their own preferences in relationship to it."
He had earlier recognised that the precise demands of consultation would vary according to the circumstances - depending, for example, upon whether the obligation was statutory and absolute or implied in common fairness, and upon the nature of the assistance that might be expected from those to be consulted (in turn dependent sometimes upon their qualifications).
It is with these sort of considerations in mind that I would regard the second requirement as satisfied here by the County Council indicating little more by way of reasons for their proposed closure of Ridgeway House than the need to reduce overall the number of places in the county's old people's homes and their selection of Ridgeway House on certain briefly specified grounds. It would not, I think, be practicable to ask of the council more than this; fairness to the residents, however, demanded no less.
Section 7(D) and the court's discretion
Upon this issue I wish to say very little. As Dillon L.J. points out, it may in fact be doubted whether the duty to consult in the present case is itself a social services function for the purposes of section 7(D) of the 1970 Act. If, of course, it is not, then in any event the Secretary of State's powers under the section would not be engaged and no question of an alternative remedy arises. But even assuming, contrary to the appellants' contention, that the Secretary of State could direct the County Council not to to close Ridgeway House without first consulting the residents, I would still regard the decision as more appropriately one for the courts than for the Secretary of State.
Which of two available remedies - or perhaps more accurately, avenues of redress - is to be preferred will depend ultimately upon which is the more convenient, expeditious and effective. Where Ministers have default powers, application to them will generally be the better remedy, particularly where, as so often, the central complaint is in reality about the substantive merits of the decision. The Minister brings his department's expertise to bear upon the problem. He has the means to conduct an appropriate factual enquiry. Unlike the court, moreover, he can direct a solution rather than merely leave the authority to re-determine the question. Where, on the other hand, as here, what is required is the authoritative resolution of a legal issue - issue No.l - then in common with Dillon L.J. I would regard judicial review as the more convenient alternative remedy.
For these reasons as well as those given by Dillon L.J. I too would dismiss the appeal in Devon and allow it, subject to further argument as to the precise form of relief, in Durham.
Order: Devon case - appeal dismissed with costs, not to be enforced without leave of the court; legal aid taxation for appellants; application for costs against the Legal Aid Board referred to the Registrar for hearing and determination; respondents' solicitors to inform the Legal Aid Board immediately of the application; present liability of appellants' costs assessed at nil; liberty to apply if contribution is other than nominal.
Durham case - appeal allowed with costs here and below; legal aid taxation for appellants; order below as regarding application for relief set aside; undertaking by Durham County Council to consult with appellants and their advisers over the appellants' future and that of Ridgeway House; application for leave to appeal to the House of Lords refused.
