ON APPEAL FROM THE QUEEN'S BENCH DIVISION
Mr Justice Calvert-Smith
Mrs Justice Thirlwall
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE RIMER
LORD JUSTICE JACKSON
| THE QUEEN ON THE APPLICATION OF
(1) PRANJIVANDAS RAJPUT
(2) ASHOK SHAMJI
|- and -
|LONDON BOROUGH OF WALTHAM FOREST
|THE QUEEN ON THE APPLICATION OF
|- and -
|EAST SUSSEX COUNTY COUNCIL
Mr Paul Greatorex (instructed by the London Borough of Waltham Forest) for the Respondent, the London Borough of Waltham Forest
Mr Matt Hutchings (instructed by Hossacks) for the Appellant, Robert Tiller
Mr Parishil Patel (instructed by Gareth Jones, East Sussex County Council) for the Respondent, East Sussex County Council
Hearing date: 1 November 2011
Crown Copyright ©
Lord Justice Rimer :
'(1) Every public authority shall in carrying out its functions have due regard to
(a) the need to eliminate unlawful discrimination and victimisation;
(b) the need to eliminate harassment of disabled persons that is related to their disabilities;
(c) the need to promote equality of opportunity between disabled persons and other persons;
(d) the need to take steps to take account of disabled persons' disabilities, even where that involves treating disabled persons more favourably than other persons;
(e) the need to promote positive attitudes towards disabled persons; and
(f) the need to encourage participation by disabled persons in public life.'
The issues in the appeals turned in particular on the section 49A(1)(d) need.
A. Tiller v. East Sussex County Council
(i) Background facts
'1. Financial Appraisal
1.1 The new service model will achieve savings as a result of ending the Directly Provided Services (DPS) on-site staff team that currently provides support to tenants. The savings will be approximately £130,000 per year. The current funding arrangement involves Supporting People (SP), [LDC] and [ASC] as detailed at Appendix 1. A saving of approximately £40,000 should be achieved from the ASC budget.
1.2 The current SP funding into [St David's] is approximately three times higher than comparable sheltered housing schemes. The revised service model provides an opportunity to reallocate funding more equitably.
1.3 It is possible that small increases in packages of care purchased from the independent sector may result in the future, however, significant reductions in funding will be achieved as several tenants will move to the Downlands Court extra care scheme, with their care [to] be delivered through the on-site care and support contract.
2. Key Issues background
2.1 [St David's] is a 35 unit sheltered housing scheme located in Peacehaven and managed by [LDC]. Most of the tenants are older people. The model of care has been a hybrid; more support than a sheltered scheme and less support than an extra care scheme. The scheme has operated in this way for approximately ten years.
2.2 The on site team provides a 24 hour presence, funded primarily by SP, but [LDC] and ASC also contribute to these costs. The on-site team provide mainly "housing related support" rather than care, although these distinctions have become blurred over the years.
2.3 Operations managers in the directly provided service and Assessment & Care Management have expressed concern over the service model over recent years. These concerns have been based on ASC funding care that is not its responsibility and the potential double funding of support, as in addition to the on-site team a number of individuals may also have home care provided by an independent company, funded by ASC.
2.4 [LDC], SP and ASC agreed that the level of need at St David's was not significantly higher than many other sheltered schemes and that although tenants were generally very positive about the on-site team it was not sufficient justification to continue to fund this level of support.
2.5 A process of consultation on potential changes commenced early in 2008. The views of tenants, relatives and carers have been recognised through monthly meetings that included tenant and carer representatives, general meetings of tenants and carers.
2.6 Whilst there is still some concern, more from carers and relatives than tenants, there is acknowledgement that the changes being proposed are reasonable.
2.7 Several tenants have applied for and been allocated homes in Downlands Court which opened in the second week of September. This has significantly reduced the level of care needs and further reinforces the case for change. Downlands Court is an Extra Care Housing scheme and provides a higher level of support than a sheltered scheme.
3.1 The overall level of need within this scheme does not merit an on-site team.
3.2 Most of those with higher levels of need or concerns about how their needs will be met in the future have opted to apply for and been offered accommodation at Downlands Court.
3.3 Though the process to date has been inclusive and has achieved a high level of co-operation, some tenants, carers or relatives have expressed concern as to how needs will be managed in the future. Additional telecare and the provision of on-site manager, from Monday to Friday (funded by SP and LDC), plus individual home care services (funded by ASC), will provide sufficient support and care.
3.4 SP funding can be deployed more effectively in the future.
3.5 Staff have already been informed of the potential changes, which if agreed, will mean the implementation of the Councils Employment Stability Scheme for those affected.
3.6 The intention is to implement the recommendations, if agreed, by December 2009.'
'Item 16 Support Arrangements for St David's Court
16.1 Councillor Bentley considered a report by the Director of [ASC]. An update of the financial appraisal was given at the meeting and the estimated savings would approximately be £76,640 per year. The saving from the [ASC] Budget would be £49,700 and from the [SP] Budget would be £29,940.
16.2 RESOLVED to (1) agree the new support arrangements for [St David's] and (2) agree that the savings made be re-invested into [ASC] and [SP] Services.
16.3 The overall level of need within this scheme does not merit an on-site team. Most of those with higher levels of need or concerns about how their needs will be met in the future have opted to apply for and have been offered accommodation at Downlands Court.
16.4 Though the process to date has been inclusive and has achieved a high level of co-operation, some tenants, carers or relatives have expressed concern as to how needs will be managed in the future. Additional telecare and the provision of an on-site manager, from Monday to Friday (funded by SP and LDC), plus individual home care services (funded by ASC), will provide sufficient support and care.
The intention is to implement the arrangement by December 2009.'
(ii) The issue of proceedings by Mr Tiller
'Many of the most vulnerable and at risk residents at St David's Court have not been receiving their care packages. We have been informed that many carers have not been getting access to the building as the residents, who feel scared and vulnerable, have not been letting the carers into the building. We have been told that there has been a recent change in the angle of the camera that transmits the image of those waiting at the entrance of the building. There has also been a suggestion that the most vulnerable residents may have trouble using the monitor that transmits to them the image of who is trying to get access to them.'
The letter advised that a claim would be issued against ESCC for an injunction preventing the implementation of the changes and for a judicial review of the decision to withdraw the 24-hour on-site support.
'2. On 12th October 2009, I was asked to consider a report from [ESCC's] Director of [ASC] in respect of amendments to the support arrangements for [St David's].
3. I was fully aware of the background to this matter in that it related to sheltered housing accommodation managed by [LDC]. I was aware that those with higher levels of needs or concerns about how their needs would be met had been offered accommodation at Downlands Court. I was also aware that because of the nature of this facility, a significant number of remaining residents would have a disability of some kind and that the proposed changes (i.e. from 24 warden service to telecare service at night and weekends) would have an impact upon them.
4. I am and was at the time fully aware of [ESCC's] equality duty obligations under the Disability Discrimination Act and its Disabilities Equality Scheme.'
(iii) Thirlwall J's judgment
' Each time an emergency occurs there is a time lag between the alarm being activated and someone attending. There is no one on hand (outside office hours) to deal with day to day problems, or to provide some company to a tenant who would like it. But it is not for this court to second guess decisions of the Council. I must consider whether or not the decision to change the provision was taken in accordance with the law.'
'17. That statement succinctly sets out his awareness of a) the factual background to the request for a decision in respect of the future provision at St David's Court b) some of the detail of the background, in particular the impact upon the residents who would remain of a reduced service and c) the extent of his awareness of the [ESCC's] duties under the [DDA].
18. I do not accept Mr Hutchings' submission that the statement reveals, at most, a general awareness of the [ESCC's] duties under the [DDA]. Mr Bentley asserts that he was fully aware and there is nothing in the statement or the decision which suggests that he was not.'
'40. I am quite satisfied on the evidence that this is exactly what took place. It is inescapable that the decision that there was no longer a need (rather than a desire) for an on site team was properly taken after a full assessment of the overall level of need. The minutes show that the impact on tenants was considered, including their continuing concerns which in my view are obvious in any event.'
'42. Mr Hutchings then says that even if the process of consultation discussion and assessment might be said to demonstrate compliance with the due regard obligation at officer level, the ultimate decision-maker, Councillor Bentley, was not able to discharge the [ESCC's] due regard obligation because Mr Atkins' report did not accurately reflect the process that preceded it.
43. In particular, Mr Hutchings submits that the information was defective in that the tenants' reservations were dealt with almost dismissively. He goes further and submits that the report deliberately downplayed the impact upon the residents of the changes.
44. In my view that description goes too far. It is fair to say that the report does not emphasise the adverse impact, but in my judgment it accurately sets out the impact albeit in rather brief terms. As I have observed on a number of occasions already, the impact is frankly plain and obvious. A remote service cannot be as good as an on-site service, but that does not mean that an on-site service is needed. The tenants' concerns are, in my judgment, adequately identified in the report so that the councillor was able to discharge the council's due regard obligation and take his decision with appropriate information.
45. I am quite satisfied that, notwithstanding the absence of any reference to the [DDA], the Council had proper regard to all the goals set out in paragraphs (a) to (f) of section 49(A)(1) in the context of this exercise. Accordingly this claim for judicial review fails.'
(iv) The appeal
' underlying objective of the general duty imposed by section 49A(1) was to create a greater awareness on the part of public authorities of the need to take account of disability in all its forms and to ensure that it is brought into "the mix" as a relevant factor when decisions are taken that may affect disabled people'.
'40. Not only is there no reference to section 71 in the report to committee, or in the deliberations of the committee, but the required "due regard" for the need to "promote equality of opportunity and good relations between persons of different racial groups" is not demonstrated in the decision-making process. "Due regard" need not require the promotion of equality of opportunity, but on the material available to the council in this case it did require an analysis of that material with the specific statutory considerations in mind. It does not, of course, follow that considerations raised by section 71(1) will be decisive in a particular case. The weight to be given to the requirements of the section is for the decision-maker, but it is necessary to have due regard to the needs specified in section 71(1). There was no analysis of the material before the council in the context of that duty'.
'23. Having permitted Mr Cragg to advance his section 49A argument, it must be dealt with albeit not at any great length. So far as material, under the heading "General Duty", section 49A then provides [and Lord Brown cited subsection (1)(c) and (d)]. As Dyson LJ held in an analogous context in Baker v. Secretary of State for Communities and Local Government (Equality and Human Rights Commission intervening)  PTSR 809, "due regard" here means "appropriate in all the circumstances": see too in this regard R (Brown v. Secretary of State for Work and Pensions (Equality and Human Rights Commission intervening)  PTSR 1506. It is Mr Cragg's submission that, no express reference to section 49A being found in the respondents' documentation in this case, it is to be inferred that, in determining how to assess and meet the appellant's needs, they failed in their general duty under this section.
24. This argument too is in my opinion hopeless. Where, as here, the person concerned is ex-hypothesi disabled and the public authority is discharging its functions under statutes which expressly direct their attention to the needs of disabled persons, it may be entirely superfluous to make express reference to section 49A and absurd to infer from an omission to do so a failure on the authority's part to have regard to their general duty under the section. That, I am satisfied, is the position here. The question is one of substance, not of form. This case is wholly unlike Pieretti v. Enfield London Borough Council  PTSR 565 (which held that the section 49A duty complements a housing authority's duties to the homeless under Part 7 of the Housing Act 1996)'.
B. Rajput and Shamji v. London Borough of Waltham Forest
'Crownfield Road has now re-opened as a Resource Hub, the first of three to be established in the Borough. The building has undergone extensive refurbishment work within the 4 weeks leading up to the launch that took place on 14th July.
Voluntary Sector providers who are contracted to provide services (support brokerage; direct payments support; carers services, information, advice and advocacy) have been allocated office spaces under a Head Lease and licence agreements.
There are a number of rooms retained as a communal resource that enable service users to be supported to establish groups and services to meet their specific needs. The Resource Centre also has a Café on site which all visitors to the centre can access and which meets all cultural requirements.
The model will be adapted to take into account feedback from service users and carers and services will be developed accordingly. If bespoke services are required the Council will be happy to discuss whether and how we could meet such needs from the Hub.
As outlined in our earlier correspondence, it would seem clear that your application for leave to appeal is now academic.
If you could perhaps set out what your client(s) objectives and wishes are in relation to these proceedings, this will assist in identifying what, if any, issues remain unresolved following the closure of Crownfield Road'.
'7. Service users are encouraged and signposted to taster sessions with a variety of Providers offering a wide range of services and activities. The model also facilitates the development of additional services to meet specific needs or to offer support to people who would like to attend the centre as a group to meet cultural needs. There are a number of meeting rooms that have been retained as a communal resource rather than aligned to the Head Lease for the building as this provides flexibility under the Personalisation Programme for service users to be supported to establish groups and services to meet their specific needs.
8. Service users previously in receipt of Day Care Services at Crownfield Road can be supported by a range of Providers either operating from the Hub or within other premises. If bespoke services are required we will be happy to discuss how we can meet these needs from the Hub. I attach as Appendix 1 a schedule of voluntary sector providers all of which have either an interface with the hub or operate from it.'
Lord Justice Jackson :
Lord Justice Carnwath :