ON APPEAL FROM QUEEN'S BENCH DIVISION
MR JUSTICE WYN WILLIAMS
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE PATTEN
LORD JUSTICE MUNBY
| Buckinghamshire County Council
|- and -
|Royal Borough of Kingston upon Thames
|- and -
|(1) SL (By her litigation friend the Official Solicitor)
|(2) National Society for Epilepsy
|(3) Secretary of State for Health
Mr Stephen Knafler QC and Mr Tim Baldwin (instructed by Nicholas Bishop, Head of Legal Services, Royal Borough of Kingston Upon Thames) for the Respondents
Ms Nicola Greaney (instructed by The Official Solicitor) for SL
Hearing dates : 30 & 31 March 2011
Crown Copyright ©
Lord Justice Pill :
"(1) . . . where it appears to a local authority that any person for whom they may provide or arrange for the provision of community care services may be in need of any such services, the authority—
(a) shall carry out an assessment of his needs for those services; and
(b) having regard to the results of that assessment, shall then decide whether his needs call for the provision by them of any such services.
(2) If at any time during the assessment of the needs of any person under subsection (1)(a) above it appears to a local authority that he is a disabled person, the authority—
(a) shall proceed to make such a decision as to the services he requires as is mentioned in section 4 of the Disabled Persons (Services, Consultation and Representation) Act 1986 without his requesting them to do so under that section; and
(b) shall inform him that they will be doing so and of his rights under that Act.
(3) If at any time during the assessment of the needs of any person under subsection (1)(a) above, it appears to a local authority—
(a) that there may be a need for the provision to that person by such Primary Care Trust or Health Authority as may be determined in accordance with regulations of any services under the National Health Service Act 1977, or
(b) that there may be a need for the provision to him of any services which fall within the functions of a local housing authority (within the meaning of the Housing Act 1985) which is not the local authority carrying out the assessment,
the local authority shall notify that Primary Care Trust, Health Authority or local housing authority and invite them to assist, to such extent as is reasonable in the circumstances, in the making of the assessment; and, in making their decision as to the provision of the services needed for the person in question, the local authority shall take into account any services which are likely to be made available for him by that Primary Care Trust, Health Authority or local housing authority.
(4) The Secretary of State may give directions as to the manner in which an assessment under this section is to be carried out or the form it is to take but, subject to any such directions . . ., it shall be carried out in such manner and take such form as the local authority consider appropriate."
"Having weighed all the factors which are relevant to the issue, I have reached the conclusion that the Defendant was under no duty to act fairly towards the Claimant either in the course of carrying out its assessment of SL under section 47 or before making any decision consequent upon that assessment."
The judge found against the respondents on a second issue which was whether they should have undertaken further enquiries about whether housing benefit would be paid in respect of the proposed tenancy at 52 The Lagger and, if payable, how much would be paid. That issue is not directly relevant in the appeal though it may have some indirect relevance on the issue raised. For the appellants, Mr Clayton QC expressed the appellants' concern about the implications of the decision because of the considerable number of people who have, and are likely, to be relocated, from NSE into tenanted accommodation in Buckinghamshire. Most will have been placed at NSE from local authorities other than the appellants. The cost to the appellants will be very substantial. It was expressly disclaimed on behalf of the appellants that the financial impact is a reason for imposing a duty to consult.
"What does fairness require in the present case? My Lords, I think it unnecessary to refer by name or to quote from, any of the often-cited authorities in which the courts have explained what is essentially an intuitive judgment. They are far too well known. From them, I derive that (1) where an Act of Parliament confers an administrative power there is a presumption that it will be exercised in a manner which is fair in all the circumstances. (2) The standards of fairness are not immutable. They may change with the passage of time, both in the general and in their application to decisions of a particular type. (3) The principles of fairness are not to be applied by rote identically in every situation. What fairness demands is dependent on the context of the decision, and this is to be taken into account in all its aspects. (4) An essential feature of the context is the statute which creates the discretion, as regards both its language and the shape of the legal and administrative system within which the decision is taken. (5) Fairness will very often require that a person who may be adversely affected by the decision will have an opportunity to make representations on his own behalf either before the decision is taken with a view to producing a favourable result; or after it is taken, with a view to procuring its modification; or both. (6) Since the person affected usually cannot make worthwhile representations without knowing what factors may weigh against his interests fairness will very often require that he is informed of the gist of the case which he has to answer."
"The Secretary of State wishes to encourage such consultation, so that placing authorities can inform host authorities of action proposed to be taken, host authorities can provide the benefit of their local knowledge as part of the decision-making process, and both can work together to ensure that any provision and placement is suitable."
No view was expressed by the Secretary of State in that statement as to whether the claimed duty arose.
". . . it is with the local planning authority that legal responsibility for fair public administration rests and [the authority's] task, principally through its officers, was to ensure that neither party acquired an inside track, whether by spurious reliance on commercial confidentiality or through a special negotiating relationship."
As a dispute between parties each with an interest in land, it has no bearing upon the present situation.
"51. . . . As a result the Council was prevented from contributing to that decision, either by assisting in or commenting upon the assessment undertaken or by undertaking its own assessment. The Council was therefore unable to:
- Form its own view as to whether the individual was sufficiently independent to make the move from residential accommodation into supported living.
- Ensure that the individual (or his family or carer) has been properly consulted.
- Ensure that the process has been informed by or taken advantage of the Council's knowledge of local provision and services.
- Ensure, where appropriate, that the individual had the option of an independent advocate.
- Ensure, where appropriate, that an assessment of the individual's capacity was carried out to ensure that he or she had the capacity to make decision about where he or she wishes to reside, and with whom, or to enter into a tenancy agreement.
- Ensure, where an individual did not have capacity, that a best interests assessment was undertaken.
52. Secondly, the Council would want to consider whether there has been any change in the care needs of the individual at the date of the move. The critical question is whether there has been a significant change in the resident's community care needs such that he or she no longer needs section 21 accommodation; and the failure to engage the Council in the process means that the Council has been deprived of any opportunity of assessing whether and to what extent a resident has progressed before leaving the NSE."
"3. We wish to carry out our own community care assessments of [X]. The purpose of the assessment would be to determine whether she has needs that call for the provision of the services currently being provided.
4. In order to carry out the assessment, we require copies of the following to be forwarded for [X]
(i) Updated Community Care Assessment
(ii) Care Plan
(iii) Tenancy Agreement
(iv) Mental Capacity Assessment
(v) Full details of the current care providers including current costs of the care package
After a full investigation, Buckinghamshire will determine whether or not to accept responsibility for ongoing funding of [X] community care package on the basis of his/her ordinary resident in our area."
"I am aware of no authority for the proposition that, where Parliament has prescribed the nature and extent of consultation, a wider duty of consultation may exist at common law (in the absence of a clear promise or an established practice of wider consultation by the decision-maker)."
"These are difficult questions. They raise matters of public interest. Where Parliament has decided, the courts should not enter the arena and impose a different duty of consultation."
"All that said the statutory language certainly does not assist Mr Clayton's argument. Parliament has specified circumstances in which an authority exercising its power under section 47(1) must notify another authority of the exercise of the power and permit the other authority to participate in an assessment (subsection (3)); just as importantly, it has reserved to the Secretary of State a power to make directions which can be used to impose upon a local authority a duty to notify or consult with other local authorities in appropriate circumstances. In my judgment, the express provisions contained within sub-sections (3) and (4) are powerful indicators that the courts should be slow to accept the existence of the duties for which the Claimant contends."
The judge reached that conclusion, having accepted, in a previous paragraph, the statement of Lord Bingham of Cornhill in R (West) v Parole Board  1 WLR 350 at paragraph 29:
"But the maxim expressio unius exclusio alterius can seldom, if ever, be enough to exclude the common law rules of natural justice, . ."
"I incline to the conclusion that the discharge of the regulation 12 obligation would be sufficient to meet the requirements of fairness for the following reasons. First, the fact that the Secretary of State has prescribed the scope of its obligation to consult is a relevant factor, although I accept that it is by no means decisive, since ultimately whether a process is fair is a matter for the courts to decide. Secondly, the CAA is a statutory regulator in the field of economic regulation in the general interest of all those who use Gatwick airport. The need to give the right to affected or interested parties to make full representations is less pressing in this context than it is in other contexts where the decision affects the fundamental rights of individuals such as, for example, the liberty of the subject, the right to receive publicly-funded accommodation, health treatment or education or a benefit (such as a licence) which affects a person's livelihood. Thirdly, the CAA is not acting as a judicial or quasi-judicial body adjudicating between competing claims. It is not its role to balance the airlines' interests against those of BAA. Rather, it must carry out its own investigation and make an objective assessment of the level of charges which, in its judgment, is most appropriate to achieve the statutory objectives. It conducts its own investigations with its specialist staff and is assisted by the work done by the CC [Competition Commission] and has to act in the manner which it considers is best calculated to achieve the goals stated in section 39(2) of the 1986 Act. Fourthly, in the light of the foregoing, the requirements of fairness are satisfied by giving all affected or interested parties the opportunity to make written representations on the conditions or modifications that the CAA intends to make (after conducting its own investigations and taking account of a CC report) within 30 days of publication of the proposals."
Lord Justice Patten :
"In my judgment, the fact that, when conferring on the Lord Chancellor the power to prescribe court fees, Parliament decided whom he should consult before doing so militates strongly against the idea that there should co-exist a common law duty to consult more widely (in the absence of a clear promise by the Lord Chancellor that there would be wider consultation and in the absence of any clear established practice of wider consultation). Parliament is to be presumed to have considered that the degree of consultation specified in section 92 of the 2003 Act was sufficient."
Lord Justice Munby :