England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT AT MANCHESTER
HHJ Stephen Davies
[2014] EWHC 3481 (Admin)

		Royal Courts of Justice Strand, London, WC2A 2LL
		20th January 2015

Lord Justice Richards :

1. This appeal relates to a decision by Salford City Council ("the Council") to close its Passenger Transport Unit ("the PTU"), by which it provided a transport service for disabled adults between their homes and adult day centres, and to make alternative transport arrangements for such adults. The closure formed part of a package of cost-cutting measures and was budgeted to lead to a saving of £600,000 a year. The appellants are severely disabled adults who used the PTU service. They challenged the closure decision by way of a claim for judicial review. The claim was dismissed by His Honour Judge Stephen Davies, sitting as a High Court Judge in the Administrative Court at Manchester. An appeal against his decision is brought by permission granted by Bean LJ.
2. There are three issues in the appeal: (1) whether the Council acted unlawfully in failing to undertake full individual community care assessments before making a decision to terminate the PTU service ("the assessment issue"); (2) whether the consultation carried out prior to the decision was lawful ("the consultation issue"); and (3) whether the Council complied with the public sector equality duty under section 149 of the Equality Act 2010 ("the PSED issue").

Statutory and factual background

3. The judge described the statutory scheme in this way at paragraphs 8-10 of his judgment (with original emphasis):

"8. It is common ground that the defendant is obliged under section 29 of the National Assistance Act 1948 and s.2 CDSPA [the Chronically Sick and Disabled Persons Act 1970], where it is satisfied that it is necessary in order to meet the welfare needs of eligible adults living in their area, to make arrangements for the provision of welfare services. Thus in this case the defendant has made arrangements for the claimants, and the other disabled adults affected by the decision, to attend adult day centres and social care respite centres.

9. It is also common ground that in such circumstances the defendant is also obliged under s.2(1)(d) CSDPA to 'make arrangements for … the provision … of facilities for, or assistance in, travelling to and from his home for the purpose of participating in any services provided under arrangements made by the authority'.

10. The defendant submits, and the claimants accept, rightly in my view, that the obligation is to make arrangements for facilities or assistance to be provided, and that this imports no obligation to provide facilities or assistance directly. The provision of facilities or assistance by other means, such as by entering into appropriate contracts with private organisations, or arranging for the eligible adult or his carer to provide his own transport, where appropriate with financial assistance, is permitted."

4. The judge referred at paragraph 18 to the evidence before him about the personal circumstances of the claimants, including their disabilities and the impact of those disabilities upon their lives. He did not think it necessary for the purposes of his judgment to set out the detail, stating that "it suffices to say that both are fully dependent on others for their care, and are only able to continue living at home due to the unstinting care and attention of their mothers, assisted in Jennifer's case by other members of her family". Mr Wise QC took us to the mothers' witness statements to underline the profound level of disability in question. I have kept that evidence well in mind but, like the judge, I do not think it necessary to set it out.
5. At paragraph 19 the judge described the PTU service as follows:

"The PTU service, in short, involves the use of drivers, directly employed by the defendant, driving wheelchair adapted buses, with ramps, leased by the defendant (known as 'white buses'). Those buses, manned by passenger assistants as well as drivers, collect eligible adult service users from their homes and drop them off at various day centres in Salford, and then collect and return them in due course. It is, in effect, rather like a school bus service, so that defined routes, collecting and dropping off particular service users at particular times, are operated."

6. The role of the PTU service can be illustrated by the cases of the two appellants. At the material time Michael Robson attended a day centre on five days a week. He used the PTU service on two or three of those days. On the remaining days he used a taxi or was driven by his mother in a motability vehicle. He contributed £3.90 per return trip for the PTU service and £5 per return trip for the taxi service. Jennifer Barrett attended a day centre on four days a week, using the PTU service each day.
7. The substance of the Council's proposal and of the decision adopting it was to close the PTU (and thus to cease to provide transport by means of the PTU service) and to discharge the duty under section 2 of the CSDPA by means of alternative arrangements. That is common ground and is clear when the evidence is looked at as a whole. One of the difficulties about the case, however, is the lack of clarity in some of the contemporaneous documentation.
8. When the proposal was first described, in a budget report for a meeting of the Council on 26 February 2014, it was summarised as "Withdrawal from the direct delivery of specialist transport for people with a disability and the introduction of a revised criteria for support with transport that emphasises the use of more ordinary options for more individuals".
9. In a report to Cabinet on 11 March 2014 the proposal was expressed in these terms:

"The proposal being considered … is to clarify the current transport policy for adults and to ensure that it is fit for purpose and supports the aspirations of the Council in promoting independence.

Of the 204 people already in the service, 100 have received an initial assessment which indicates that an alternative arrangement can be made. Of the other 100 where specialist vehicles are required the revision policy seeks to clarify which other benefits can be taken into consideration for funding transport arrangements. For those who continue to need support of a more specialist nature there will be continued responsibility to ensure there is suitable, safe options to meet that need.

The proposal seeks to achieve a £600k saving.

It is anticipated that 24 FTE staff in this area will no longer be employed in these roles."

10. The public consultation had just begun at the date of that report and continued until late May 2014. I will consider the related documents when dealing with the consultation issue.
11. A Community Impact Assessment dated May 2014 stated that the proposal was "for the Passenger Transport Unit to save £600,000 in a full year … by reviewing each service user's transport needs, and applying the Council's revised passenger transport policy 'Criteria for Transport'". The transport criteria in question do not seem to have been clearly articulated, though the document explained that "service users would, if appropriate, have access to Ring and Ride, taxis (with adaptations to support individual need), ordinary public transport or assistance from friends and family". Discussions with service users had found by that stage that "169 of them could make adequate alternative arrangements, and that the other 40 could use an alternative form of transport with some support". I will consider the individual transport assessments when dealing with the assessment issue, and I will come back to the content of the Community Impact Assessment when dealing with the PSED issue.
12. The proposal was expressed more clearly in a report to Cabinet on 30 June 2014, when the decision to adopt it was taken. Section 5.9 concerns the PTU. The opening paragraphs set out the history. The box in para 5.9.6 then reads:

"The original proposal was to cease to use the Passenger Transport Unit to meet people's transport needs and seeks to identify alternative transport options to adult service users accessing day services and Granville. It has been identified that 40 people may have ongoing needs for some form of supported transportation.

A project team will focus on the individual circumstances of the 40 people to further look at alternatives with families and determine what support will be obtained throughout the changes ….

… [Substantial passages relating to the disestablishment of staff posts and the ending of transport lease arrangements, and the consequential savings.]

As a result it is proposed that the original proposal should not be changed …."

13. The decision was the subject of a call-in to the Adult Services Scrutiny Committee but the Committee decided on 23 July 2014 not to uphold the call-in, with the result that the decision stood.
14. Effect has been given to the decision by making alternative arrangements for transport in respect of all but a few of those who formerly used the PTU service and by making a corresponding reduction in the size of the PTU. By the date of the hearing before the judge, only 37 users were still using the PTU service. At the hearing of the appeal we were told by Mr Oldham QC, on instructions, that the number had reduced to 18. We were also provided with a copy of an email dated 20 November 2014 from the Council's solicitor to the appellants' solicitor stating that "the overarching framework is that Salford will continue to provide transport via the PTU to service users at the current level of service until such time as reasonable and risk managed alternatives are found for the individual concerned". In relation to the appellants themselves, the email confirmed that the specially adapted vehicles would continue to be operated for them until the hearing of the appeal (and I assume that this position will have been maintained pending judgment). The email stated further that service users who were currently being assessed would remain "on the transport" until the outcome of the assessments was known; that any individual who was assessed as needing specialised transport would receive it and be provided with transport to the day centre; and that drivers and passenger assistants would continue to be provided and people would remain in post so that individuals could attend day centres until reasonable risk-managed alternatives were in place.
15. The judge made the point, which Mr Wise stressed in his submissions to us, that it was possible that some of those for whom alternative arrangements are now in place "have reluctantly accepted what they may regard, or what may be, an unsuitable or unsafe transport service" (paragraph 31 of the judgment). It should be stressed, however, that the present proceedings relate to the decision of 30 June 2014, not to the arrangements made in individual cases. It would be open to individuals aggrieved by the arrangements made for them to challenge those arrangements by separate claims for judicial review. No such claims have been brought to date, though it needs to be borne in mind that potential claims might have been deferred pending the outcome of the present proceedings.

The assessment issue

16. In considering this issue it is helpful to explain first the nature of the assessments actually carried out by the Council. For that purpose I will summarise matters dealt with more fully at paragraphs 18-26 of the judgment below, where the judge sets out the circumstances of the individual claimants.
17. Personal meetings were held between users (or their carers) and social workers who completed a tick-box form asking a series of questions about the extent of the user's disability, the need for transport, the forms of transport used or available, and the degree of support and assistance needed. There was then a final section on "Alternative Transport Options" in which the social worker gave an assessment of the alternatives open. We were shown the assessments made in respect of the two appellants, together with passages in their mothers' witness statements heavily criticising those assessments. The outcome of the assessments was notified by decision letters dated 29 July 2014 to the individuals concerned and/or their parents or guardians. In the case of Michael Robson, it was that "your transport needs can be met by mobility car or taxi funded by yourself". In the case of Jennifer Barrett, it was that "your transport needs can be met by using assisted taxis as your mobility car is currently unsuitable to your needs; though the possibility of changing your vehicle will also be pursued by your family". The letters invited recipients to contact the transport team if they felt they needed additional help to meet their transport needs. They also referred to a right of appeal if there was additional information that had not been considered. The appellants have exercised that right of appeal. Final consideration of their individual cases is on hold pending the outcome of the present proceedings.
18. Mr Wise submits that the transport assessments did not provide a legally sufficient basis on which to make the decision to close the PTU. The Council was obliged to make comprehensive assessments of the needs of all the service users involved before taking such a decision. The duty to carry out an assessment of needs for community care services arises under section 47(1)(a) of the National Health Service and Community Care Act 1990. Such an assessment must be carried out in accordance with the guidance issued by the Department of Health, Prioritising need in the context of Putting People First: A whole system approach to eligibility for social care (February 2010). There is also a duty under the Community Care Assessment Directions 2004 to consult the person concerned and, where appropriate, any carers of that person; to take all reasonable steps to reach agreement; and to provide information about the cost of any service to be provided. Where services are to be withdrawn there should be a reassessment of needs: see R v Gloucestershire County Council, ex parte Barry [1997] AC 584 at 607A. The change from the PTU service to alternative transport arrangements was of very great significance for the individuals concerned and, in Mr Wise's submission, amounted to the withdrawal of the existing service. There should therefore have been a comprehensive reassessment of needs. The transport assessments carried out were inadequate for the purpose. The same point of substance is advanced on the alternative legal basis that the Council did not take the steps reasonably required to acquaint itself with the relevant information to enable it to make a lawful decision: see Secretary of State for Education and Science v Tameside Metropolitan Borough Council [1977] AC 1014 at 1065B.
19. That general line of argument was considered by the judge together with a separate contention, no longer pursued, that the decision was in breach of section 2 of the CSDPA. The judge rejected the case advanced. In relation to section 2, he accepted the Council's submission that "the decision under challenge is a high level decision in relation to how the defendant was going for the future to satisfy its obligation under s.2 CSDPA to make arrangements for provision of facilities for or assistance in travelling to day centres …" (paragraph 47). He said that there was no basis in the evidence for concluding that any of the existing PTU service users could not have their individual needs satisfied otherwise than through the PTU; there was no evidence that the facility provided by the PTU, or a similar facility, could not be provided through external commissioning, in relation to those service users who needed that level of service. He continued, in relation to the assessment issue:

"48. In the same vein, and for the same reasons, I accept the defendant's submission that there was no requirement, whether under statute or at common law, to undertake the degree of assessment contended for by the claimants before making the decision under challenge, because it was a high level decision, which could not by itself lead to a reduction in the service being provided to individual service users to below the level required of the defendant to fulfil its s.2 CSDPA duty. It was sufficient, in my judgment, for the defendant to do what it did, which was to conduct an individual transport assessment on the basis of a personal meeting, so as to satisfy itself that the withdrawal of the PTU service and its replacement with individualised transport arrangements was feasible and was not such as would likely result in its being unable to comply with its s.2 CSDPA duties in relation to the existing PTU service users.

49. In the end, it seems to me that the claimants could only succeed on grounds 1 and 2 if they could show that either the assessment process was so seriously deficient that no rational local authority could have proceeded to take the high level decision which it did on the basis of that evidence base, or that on the evidence before it when taking the decision no rational local authority could have concluded that it would be able to comply with its s.2 CSDPA duties in relation to the PTU service users if it ceased using the PTU and implemented the alternative arrangement. Whilst the claimants have produced some evidence from which there might be some basis to criticise the individual assessments and/or the individual conclusions as to suitable alternative travel arrangements, and whilst the claimants may be able to point to some areas of concern in relation to the implementation of the new arrangements, that is very far indeed in my judgment from what they need to establish to make their challenge to the high level decision. In my judgment the report of 30 June 14, with its careful consideration at section 5.9.6 as to whether or not the proposal should be revised following and as a result of the consultation and assessment process, and its conclusion that it should proceed on the basis of the specified further actions, provides a complete answer to that complaint. If the defendant was to shut down (or, for that matter, to downsize) the PTU with effect from the end of this month, and was unable to make arrangements for a safe, suitable alternative means of transport for one or more eligible adults, then it would be open to such person(s) to bring a legal challenge on that basis and, if necessary, to seek and obtain urgent interim relief. There is no cogent evidence before me that the defendant would simply be unable to comply with any such order without maintaining the PTU in its existing form."

20. I agree with the judge's analysis. The decision to close the PTU did not prevent the Council from making lawful transport arrangements for those currently using the PTU. As Mr Oldham submitted on behalf of the Council, the PTU is a particular business structure under which staff are employed and vehicles are leased; there is no evidence that a replica facility could not be provided if necessary through third parties, and there is no reason in principle why it could not be so provided. In any event the decision was linked with the search for alternative transport arrangements for current users of the PTU and was taken in the light of an assessment exercise which showed the feasibility of making alternative arrangements for at least a substantial majority of those users. If the existing service had to be maintained for a minority, either through third parties or even through a residual PTU (as is happening at present for the claimants and a small number of others), the budgeted savings would not be realised in full but that would not make the closure decision irrational or otherwise unlawful.
21. I acknowledge the potential significance of a change in the transport arrangements, both for users of the service and for their carers. For the reasons already covered, however, the closure of the PTU cannot be equated with the withdrawal of a service and the principle in R v Gloucestershire County Council, ex parte Barry (see above) is not engaged. The submission that a full reassessment of community care needs was required before taking the decision to close the PTU is misconceived. It was necessary to make transport assessments before reaching decisions in individual cases, but such assessments were carried out and their adequacy to sustain the specific decisions made in those cases (having regard to the effect on carers as well as on the service users) is not in issue in these proceedings. If any assessments were needed for the purposes of the closure decision itself, the transport assessments were amply sufficient, and they threw up nothing to suggest that it would be unreasonable to close the PTU. In terms of the Tameside principle, the Council had taken the steps reasonably required to acquaint itself with the relevant information to enable it to make a lawful decision.

The consultation issue

22. The decision of the Supreme Court in R (Moseley) v Haringey London Borough Council [2014] UKSC 56, [2014] 1 WLR 3947, has featured large in the argument concerning the consultation issue. The decision came out a few days after the judge had handed down judgment in the present case. In his reasons for granting permission to appeal, Bean LJ said that in the light of it the appeal was arguable. In fact the decision in Moseley is largely an endorsement at Supreme Court level of principles already established at the level of the Court of Appeal, but it provides an illustration of the application of those principles and it contains certain observations seized on by Mr Wise in support of the appellants' case. Before explaining how the decision has been deployed in argument, however, I need to describe the consultation exercise in this case.
23. The consultation in respect of transport to day centres formed part of a wider consultation on proposed changes to services to vulnerable adults. A booklet providing information about the proposals and inviting responses to questions was sent to all service users and carers whose contact details were held by the Council, and the same information was available on the Council's website. The booklet and the website material explained that the Council had been forced to look at making changes because its budget had been cut. As a result it had to prioritise the care it provided. To try to mitigate the impact of the cuts, the Council was trying to encourage greater independence amongst individuals and communities, using local facilities and reducing dependency. The changes could affect anyone who received any of the services listed or who cared for someone who did. Some of the proposals meant that people might no longer receive a service they were currently getting. The specific proposal in respect of transport was described in these terms:

"Council transport to day centres

The council's Passenger Transport Service provides transport for 204 people who use adult social care services within day centres.

We assess the different options that can meet the transport needs of people who use this service. The options include transport provided by families and friends, public transport, 'Ring and Ride' services and community links, developing travel skills and using mobility benefits. Of the total of 204 people, we are already helping 100 adults get alternative transport to meet their needs.

The proposal is to assess all adults that receive the specialist transport service to see if alternative transport options can be used. If such alternative transport isn't available, we would try to identify benefits which could be available to help meet their transport needs.

This proposal does not affect the transport provided for 700 children. This will continue unchanged."

The questionnaire within the booklet and on the website included two questions under the heading "Council transport to day centres":

"Q5. Do you agree that it is fair that people use available alternative transport options if they are able (eg. Transport from family or friends, bus, taxi, tram, Ring and Ride) before the council provides a specialist service?

Strongly agree ? Agree ? Disagree ? Strongly disagree ?

Q6. Do you have any other comments on this proposal?

…………………………………………………………………"

24. In a witness statement on behalf of the Council, Mr Dave Clemmett (the Council's Assistant Director, Operations) adds that the consultation included (1) a large scale public consultation including all PTU customers, (2) customer consultation at meetings, and (3) staff engagement. He states that both before and during the consultation period all adult users of the PTU were visited on one or more occasions by one or more Council officers to gather information about their needs (this was the assessment exercise to which I have already referred). Those officers included five named individuals. Mr Clemmett continues (at paragraph 5 of his statement):

"I have checked with all of these individuals and they have confirmed to me that all of those meetings included discussion about the proposals and the proposed closure of the PTU."

He exhibits copies of the slides used for presentations to interested groups, which refer to available options but make no reference to a service continuing through the PTU. He also exhibits media articles between February and May 2014 referring, for example, to "plans to cut transport for people with special needs" and to campaigners viewing the Council's consultation questionnaire as a "chance to have their say over the axing of transport for the disabled".

25. In relation to the claimants' complaint that the consultation material gave a misleading impression and that the process was unfair, the judge found as follows:

"57. I accept that the booklet does not state in terms that the proposal involved withdrawing the existing PTU service from adult service users. However, it seems to me that this complaint … focuses too much on services as opposed to outcomes. The booklet makes it clear that what is being proposed is to assess adults currently using the PTU service to see if alternative transport arrangements, such as family transport or ring and ride, or alternative arrangements funded by benefits, can be used. It is the change in approach to transport arrangements, and in particular the aim of moving service users off the PTU and onto alternative travel arrangements, which is important to the existing service user consultees in my judgment, not the consequential impact on the continued existence of the PTU. That would, of course, be important to employees, but: (a) they would be consulted separately anyway as employees; (b) it is abundantly clear that they knew what the effect of the proposal on the PTU was for them.

58. Furthermore, although I accept not stated in explicit terms, it would be impossible in my judgment for any sensible reader not to have understood that this proposal would involve the withdrawal of the PTU service from those who were assessed as being able to use alternative transport arrangements. Moreover, the reference to the defendant already helping 100 out of the 204 cohort to get alternative transport clearly demonstrates in my judgment the seriousness of the intention which is made apparent in the proposal, namely to move a very high proportion, if not all, of the existing service users away from the PTU.

59. In those circumstances, whilst I accept that the explanation given was not as clear, or the warning as to the potential consequences not as stark, as it might have been, in my judgment any such failing is not such as would render the consultation process as a whole so clearly unfair that the decision should be impugned on that basis.

…

61. For completeness, however, I should add that in my judgment there can be no possible basis for complaint about the consultation process overall, which seems to me to have been conspicuously thorough and fair."

26. In an earlier part of his judgment the judge had summarised the evidence about the consultation process, including the points made in Mr Clemmett's witness statement, and had expressed the view (at paragraph 39) that –

"… the defendant has produced no hard evidence to demonstrate that, if the booklet was materially misleading, the impact of that misleading impression was removed in relation to all those affected by other means, including the personal visits to the existing service users and their carers. It seems to me that the evidence is not sufficient to establish that those who conducted the personal visits to undertake the assessments were specifically tasked with making it clear to the users and their carers in unambiguous terms that the proposal would involve the closure of the PTU and its replacement by other alternatives. This was not the stated purpose of the visits, and I note that the letter to Mr Robson to arrange the meeting … does not state in terms that this was the proposal."

27. Mr Wise takes issue with the judge's reasoning. He submits that the problem about the consultation is not just that the booklet "does not state in terms that the proposal involved withdrawing the existing PTU service from adult service users". It is that the material does not describe the actual proposal. The proposal was to close the PTU and to make alternative arrangements for transport; it was not, as the booklet described it, "to assess all adults that receive the transport service to see if alternative transport options can be used". Thus the description was misleading and meant that the Council consulted on something different from the actual proposal. The judge was right to find that if the booklet was materially misleading, the evidence of what was said at meetings was not sufficient to correct that misleading impression. The media articles do not help: comments by journalists about proposed cuts to transport have to be distinguished from the terms of the Council's own consultation. Nor can it be assumed that consultees will have known the true nature of the proposal. Some of the carers of service users have stated in their witness statements that they did not know about the stopping of the transport service until after the consultation had closed. Further, consultation was not just with service users and their carers but with the whole community (there were over 1,200 responses to the transport proposal) and it was important that all consultees should understand that what was being proposed was the closure of the PTU.
28. Mr Wise seeks to deploy the Moseley decision, in particular the judgment of Lord Wilson JSC, in support of those submissions. As to general principles, Lord Wilson states at paragraph 23 of Moseley that irrespective of how the duty to consult has been generated, the same common law duty of procedural fairness will inform the manner in which the consultation should be conducted. At paragraph 24 he identifies three purposes of the requirement of procedural fairness: it is liable to result in better decisions, it avoids the sense of injustice which the person who is subject to the decision will otherwise feel, and it is reflective of the democratic principle at the heart of our society. That third purpose links with the observation of Lord Reed JSC at paragraph 38 that, in the particular context of that case, the purpose of the statutory duty to consult must be "to ensure public participation in the local authority's decision-making process". Mr Wise also relies on paragraph 26, where Lord Wilson draws two further general points from the authorities: first, that the degree of specificity with which, in fairness, the public authority should conduct its consultation exercise may be influenced by the identity of those whom it is consulting; and second, 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.
29. As to the application of the law to the facts in Moseley, the consultation in that case was found to be procedurally unfair because the consultation documentation gave a misleading impression in failing to mention other ways of absorbing the shortfall in funding which the proposed scheme was intended to meet. Mr Wise submits that a similar unfairness arose through the misleading impression created by the documentation in the present case. He also points to a passage in paragraph 31 where Lord Wilson rejects the reasoning of the Court of Appeal that the other options would have been reasonably obvious to those consulted. Lord Wilson states that "Haringey's message to those consulted was therefore that other options were irrelevant and in such circumstances I cannot agree that their assumed knowledge of them saves Haringey's consultation exercise from a verdict that it was unfair and therefore unlawful". Mr Wise submits that the judge in the present case relied erroneously on the assumed knowledge of consultees.
30. For the Council, Mr Oldham submits that the judge directed himself correctly on the consultation issue and that the reasoning in paragraphs 57-58 of his judgment was correct. Users and their carers were consulted about what was important to them, namely the potential change to the type of transport arrangements made for them. It was implicit in any event that a transport service would cease to be provided through the PTU. There is no evidential basis for the appellants' case that people were misled by the consultation material. The appellants or their litigation friends have not said that they were misled by it. Those carers who have said in witness statements that they did not know about the stopping of the transport service until after the consultation had closed have not asserted that they were misled; only one of them refers to the consultation at all (to say he was not aware of it – not a point relied on by the appellants); and two of them were present at meetings during the consultation period at which it was made clear, as the notes of the meetings show, that it was proposed to cease to provide a service through the PTU. Further, the media articles exhibited by Mr Clemmett reveal a widespread awareness of the cuts proposed. A respondent's notice also advances the contention that the judge was wrong to reject Mr Clemmett's evidence that all of the meetings with users included discussion about the proposed closure of the PTU: it is submitted by reference to R (Watkins-Singh) v Aberdare High School [2008] EWHC 1865 (Admin), [2008] ELR 561, at paragraph 101, that in the absence of cross-examination of Mr Clemmett the court should have proceeded on the factual basis put forward by him.
31. As to the decision in Moseley, Mr Oldham submits that it contains nothing to contradict the judge's reasoning in this case. The consultation material in Moseley was positively misleading because it put consultees off the scent about the existence of relevant alternative options; and what Lord Wilson said about not assuming that consultees would know the true nature of the proposal has to be seen in that context. There was nothing like that in this case. What Lord Reed said in Moseley about the importance of public participation was in the context of the particular statutory duty to consult, whereas there was no such statutory duty here. The correct focus here was on the individuals whose interests might be adversely affected by the proposed changes in transport arrangements, about which they were clearly consulted. The judge was right to find that the consultation process was fair.
32. I have not found it easy to reach a decision on this issue. The lack of clarity in the Council's internal documentation (see e.g. the description of the proposal in the report to Cabinet on 11 March 2014, quoted at paragraph 9 above) seems to have been carried over into the documentation prepared for the consultation. The consultation material presented an incomplete picture by concentrating on the proposed assessment of users of the PTU services to see if alternative transport options could be used, without a clear statement that it was proposed to close the PTU itself. In consequence, Mr Wise's submission that the Council failed to consult on the closure proposal and/or that the consultation material was misleading has considerable attraction to it. In the end, however, I have reached the conclusion that that is too formalistic an analysis and that the judge was right to concentrate on the proposed change of approach to transport arrangements for existing users and to find that the consultation process as a whole was not unfair.
33. What was important for users and their carers was not the continued existence of the PTU as such – as I have said in the context of the assessment issue, it was possible to provide the same service by other means – but the type of transport arrangements made in their case. They can have been left in no doubt that the purpose of the proposed assessments was to see if the existing service through the PTU could be replaced in each individual case by alternative arrangements. It was implicit that the PTU service would be withdrawn from those who were assessed as able to use alternative modes of transport. The reality of all this was brought home by the information that almost one half of users of the existing service were already being helped to get alternative transport to meet their needs.
34. In order to determine whether consultees were misled or were not consulted about the actual proposal, it is also necessary to have regard to the wider picture. In my view the judge was entitled to find that Mr Clemmett's witness statement was "not sufficient to establish that those who conducted the personal visits to make the assessments were specifically tasked with making it clear to the users and their carers that the proposal would involve the closure of the PTU …". That finding did not involve the rejection of Mr Clemmett's evidence, which was unchallenged. It was simply a finding that his evidence was insufficiently detailed and specific to make good such a conclusion. Mr Clemmett's evidence taken as a whole (including the exhibited slides and media articles) does, however, provide some support for the view that consultees were aware that the proposal included closure of the PTU. The absence of any substantial evidence on behalf of the appellants that consultees were in fact misled is also highly material.
35. In Moseley the consultation material conveyed a positively misleading impression that other options were irrelevant. There is nothing equivalent to that in this case. In Moseley it was wrong to place reliance on consultees' assumed knowledge of other options for the same reason, that the message conveyed by the local authority was that other options were irrelevant. Again there is no equivalent in this case, and in my view it was open to the judge to make the finding he did that any sensible reader of the consultation booklet would have understood that the proposal involved the withdrawal of the PTU service from those who were assessed as able to use alternative transport arrangements. More generally, there is nothing in Moseley to cast doubt on the correctness of the legal principles by reference to which the judge directed himself in this case. The judge's conclusion on the fundamental question, that the consultation was fair, was in my view a proper one for him to reach.
36. It may be helpful for me to indicate that if I had found that the consultation was unfair, I would have favoured limiting relief to the grant of a declaration, refusing the quashing order sought by the appellants (just as the Supreme Court in Moseley declined to grant a quashing order in the particular circumstances of that case). The individual users and carers who are at the heart of the present case have had their interests substantially protected by the individual assessment process, with the possibility of challenge to the resulting decisions if they are aggrieved by them. All but a small number of former users of the PTU service have now been moved to different arrangements. In consequence, the PTU itself now exists only in heavily cut-back form. In my judgment it would not be appropriate in these circumstances to require the Council to go back to square one and to conduct a fresh consultation exercise.

The PSED issue

37. The public sector equality duty is set out in section 149 of the Equality Act 2010, which provides in material part:

"(1) A public authority must, in the exercise of its functions, have due regard to the need to –

…

(b) advance equality of opportunity between persons who share a relevant protected characteristic and persons who do not share it …

(3) Having due regard to the need to advance equality of opportunity between persons who share a relevant protected characteristic and persons who do not share it involves having due regard, in particular, to the need to –

(a) remove or minimise disadvantages suffered by persons who share a relevant protected characteristic that are connected to that characteristic;

(b) take steps to meet the needs of persons who share a relevant protected characteristic that are different from the needs of persons who do not share it …

(4) The steps involved in meeting the needs of disabled persons that are different from the needs of persons who are not disabled include, in particular, steps to take account of disabled persons' disabilities."

We are concerned in this case with vulnerable adults who have the relevant protected characteristic of disability.

38. There is no dispute as to the principles governing the application of section 149. We were referred to a convenient summary at paragraph 26 of the judgment of McCombe LJ in Bracking v Secretary of State for Work and Pensions [2013] EWCA Civ 1345, 16 CCLR 479. Mr Wise pointed in particular to subparagraph (2), where it is said that an important evidential element in the demonstration of the discharge of the duty is the recording of the steps taken by the decision-maker in seeking to meet the statutory requirements; to subparagraph (4), where it is stated that the public authority "must assess the risk and extent of any adverse impact and the ways in which such risk may be eliminated before the adoption of a proposed policy and not merely as a 'rearguard action', following a concluded decision"; and to subparagraph (8), which quotes from the judgment of Elias LJ in R (Hurley & Moore) v Secretary of State for Business, Innovation and Skills [2012] EWHC 201 (Admin), [2012] HRLR 13. The quoted passages include these:

"78. The concept of 'due regard' requires the court to ensure that there has been a proper and conscientious focus on the statutory criteria, but if that is done, the court cannot interfere with the decision simply because it would have given greater weight to the equality implications of the decision than did the decision maker. In short, the decision maker must be clear precisely what the equality implications are when he puts them in the balance, and he must recognise the desirability of achieving them, but ultimately it is for him to decide what weight they should be given in the light of all relevant factors ….

89. It is also alleged that the PSED in this case involves a duty of inquiry. The submission is that the combination of the principles in Secretary of State for Education and Science v Tameside MBC [1977] AC 1014 and the duty of due regard under the statute requires public authorities to be properly informed before taking a decision. If the relevant material is not available, there will be a duty to acquire it and this will frequently mean that some further consultation with appropriate groups is required. Ms Mountfield referred to the following passage from the judgment of Aikens LJ in Brown (para 85) [R (Brown) v Secretary of State for Work and Pensions [2008] EWHC 3158 (Admin), [2009] PTSR 1506] :

… the public authority concerned will, in our view, have to have due regard to the need to take steps to gather relevant information in order that it can properly take steps to take into account disabled persons' disabilities in the context of the particular function under consideration.

90. I respectfully agree …."

39. In Bracking itself it was held that there was a breach of the duty, essentially because of the absence of hard evidence that the minister had had a focused regard to the potentially very grave impact upon individuals in the relevant group of disabled persons. As McCombe LJ put it at paragraph 63, "what was put before the minister did not give to her an adequate flavour of the responses received indicating that independent living might well be put seriously in peril for a large number of people".
40. As to the reference to Brown in the passage quoted from Hurley & Moore, it is also relevant to note paragraph 89 of the judgment of Aikens LJ in Brown:

"Accordingly, we do not accept that either section 49A(1) in general, or section 49A(1)(d) in particular, [i.e. the statutory predecessor to section 149 of the Equality Act 2010] imposes a statutory duty on public authorities requiring them to carry out a formal disability equality impact assessment when carrying out their functions. At the most it imposes a duty on a public authority to consider undertaking an assessment, along with other means of gathering information, and to consider whether it is appropriate to have one in relation to the function or policy at issue, when it will or might have an impact on disabled persons and disability."

41. The only other authority to which we were referred on the issue is R (Bailey) v Brent London Borough Council [2011] EWCA Civ 1586, [2012] LGR 530, especially for the statement of Pill LJ at paragraph 83 that "[w]hat observance of [the] duty requires of decision-makers is fact-sensitive; it inevitably varies considerably from situation to situation, from time to time and from stage to stage"; and the observation of Davis LJ at paragraph 102 that, where the council was fully apprised of its duty under section 149 and had the benefit of a most careful report and impact assessment, it "cannot be expected to speculate on or to investigate or to explore such matters ad infinitum".
42. The appellants' essential case is that the Council failed to comply with its legal obligation to gather sufficient information, to analyse the adverse impacts of the closure of the PTU on users of the existing service, and to consider ways in which any disadvantage to them could be mitigated. It is submitted in particular that the Community Impact Assessment was inadequate for the purpose. That document is summarised at paragraph 41 of the judge's judgment. As he states, it begins with a summary and continues in five sections to address what is being impact assessed (Section A), whether an assessment is required (Section B), the results of the consultation (Section C), potential impacts and how they will be addressed (Section D), and an action plan and review (Section E). The judge then sets out what he considers to be the most relevant points from Sections C3, D and E. I will not repeat that material.
43. The judge's findings on the issue are at paragraphs 67-71 of his judgment:

"67. I begin by considering the need to gather relevant information. In my judgment there can be no criticism of the defendant's approach in that regard. They produced an action plan, and (as I have already found) undertook a thorough consultation exercise ….

68. Moreover, it is apparent from section C of the impact assessment that the defendant conducted a careful analysis of the results of the consultation exercise. In particular, I consider that it is apparent from section C3 that they had analysed with some care the results of the consultation exercise so as to identify the nature of the common concerns raised. They had also in that same section C3 identified the ways in which those concerns might be eliminated, reduced or mitigated. Although the claimants submitted that they were insufficiently rigorous, I am unable to agree. It seems to me that they contained reasonable suggestions for the elimination, reduction or mitigation of the adverse impacts about which concerns had been expressed. It is not the function, in my judgment, of this procedure to provide what is in effect a detailed action plan to address each and every area of concern in the same way as one might expect an individual assessment in relation to an individual user to do. This process operates, as it must, at a relatively high level. It cannot be said in my judgment that the suggested options fail to engage in a meaningful way with the concerns expressed, or that important matters have simply not been addressed at all. In my judgment, the claimants' approach falls foul of the cautionary note sounded in the Bailey case, namely to avoid infinite speculation, investigation or exploration.

69. Accordingly, whilst I accept that neither the particular part of section D which relates to disabled persons nor section E are as detailed or as rigorous as they might be, and perhaps should have been; and whilst I also accept that if those parts of the impact assessment were read in isolation there would be grounds for concern, in my judgment that is not enough by itself to enable the claimants to succeed in their challenge under this ground. It is necessary to read the impact assessment as a whole, without undue forensic analysis, before reaching a conclusion. In my judgment, when the impact assessment is read as a whole in that manner and, in particular, when sections D and E as a whole are read fairly in the light of section C3 as a whole, I am satisfied that there is no proper basis for concluding that the defendant did not have regard to the matters identified in s.149 of the Equality Act. It seems to me that whilst the claimants might quarrel with what they contend was the overly optimistic tone of the impact assessment, I must remind myself that weight is a matter for the decision maker and this is not the opportunity for a merits based review of the outcome.

70. I also reject the complaint as to the insufficiency of the detail. In addition to the points made in paragraph 68 above, I would also wish to emphasise the continuing nature of the duty under s.149 ….

71. Moreover, even if there was any residual doubt in that respect, I also consider that it is necessary to have regard to the process as a whole. As I have said, by reference to the documents, it is apparent that throughout the whole process the defendant was evidently aware of its legal duty under s.149. More importantly, perhaps, the documents to which I have referred also demonstrate that it was also evidently aware in its decision making process as to the potential adverse impacts on existing disabled adult service users, and that it was actively considering steps to take to meet the needs of such persons and to eliminate, reduce or mitigate those adverse impacts. In such circumstances I am satisfied that at the time when it made the decision under challenge the defendant had properly complied with its public sector equality duty."

44. Mr Wise submits that the judge was wrong to reject the claimants' case on this issue. He took us through various passages of the Community Impact Assessment in order to illustrate his criticisms of it, covering the ground considered by the judge in the passages I have quoted from his judgment. For example, in Section A it is stated: "We have helped users and their families to decide how users can best reach their destinations. Full travel assessments identify any risks and the support needed to remove or mitigate them …". Mr Wise submits that the actual assessments do not identify risks or the support needed to remove or mitigate them. He submits that Section C3, concerning the information from the consultation exercise, is hopelessly inadequate. For example, rather than containing an analysis of solutions, it refers to the need to take up points individually with people, should the proposal be agreed, "to see if there are adequate solutions in place to meet the required need"; and instead of setting out support plans, it states that individual support plans "would need to be in place for the 40 people concerned" should the proposal be agreed. He submits that Section D does not analyse the negative impact on people with a disability, or how it will be reduced or eliminated, and he criticises the lack of an evidence base for the assertion that people "will have more choice, control and independence"; he also takes issue with the claimed absence of a negative outcome or impact for people on a low income. In relation to Section E he complains that it focuses on a reduction in the number of people needing specialist transport services where alternatives can be used, but it contains no analysis of negative impacts and in particular of circumstances where alternatives cannot be used.
45. In relation to the judge's reasoning in the paragraphs of his judgment quoted above, Mr Wise submits that the action plan referred to in paragraph 67 was not the gathering of necessary information; and the consultation exercise to which the judge refers did not gather all the necessary information because it was about the wrong thing. He submits that Section C was merely a statistical exercise and does not show that the Council conducted a careful analysis of the results of the consultation exercise, as the judge states in paragraph 68. The judge's reference to the process operating "at a relatively high level" is said to misunderstand the section 149 duty, which requires the matter to be approached with rigour. Mr Wise acknowledges that the case under section 149 does not call for a merits review but he stresses the nature of the procedural obligation under that section. He submits that, for reasons already touched on, the Council was not aware of the adverse impacts on disabled service users and could not therefore take steps to eliminate or mitigate them. For those and other reasons he argues that the judge was wrong to find that the Council complied with its section 149 duty.
46. For the Council, Mr Oldham makes the point that the case so advanced by Mr Wise goes significantly wider than the relevant ground of appeal, which asserts simply that the errors in relation to the assessment issue and the consultation issue "fundamentally undermined the Judge's approach to whether the Respondent had lawfully discharged its PSED because the Respondent was not properly informed about the potential consequences of its decision". He submits that the Council did enough to gather relevant information; there was no duty in law to carry out an impact assessment at all (see Brown), but in any event the Community Impact Assessment was sufficient and it was not necessary to consider all the individual assessments at this stage of decision-making. Even if the points about inadequacy of analysis are open to the appellants, there is no reason why the degree of analysis contended for should be necessary. The judge's reasoning on this and on the PSED issue as a whole was correct.
47. I accept Mr Oldham's submissions. In my judgment the Council did have due regard to the matters identified in section 149 in relation to the disabled adults potentially affected by the decision to close the PTU. That largely follows from the conclusions I have reached on the assessment issue and the consultation issue. Through the carrying out of individual transport assessments and a lawful consultation exercise, it had obtained sufficient information to discharge the duty of inquiry for the purposes of section 149. The information obtained was analysed in the Community Impact Assessment. It may be that the imperfections of that document went even further than was acknowledged by the judge, but in my view he was entitled to find on the basis of the document taken as a whole that the Council had proper regard to the section 149 matters. I do not accept the submission that a greater degree of analysis was required. The judge was also right to look at the matter more widely, as he did in paragraph 71 of his judgment, and to find that in its decision-making process as a whole the Council was evidently aware of the potential adverse impacts on disabled adult service users and was actively considering steps to meet the needs of such persons and to eliminate, reduce or mitigate those impacts. It seems to me that everything the Council did to ensure the discharge of its duty towards those persons under section 2 of the CSDPA also helped to ensure the discharge of its public sector equality duty towards them. The case advanced by Mr Wise does appear to me to go wider than the relevant ground of appeal but even if the full width of the case is entertained it should in my judgment fail.

Conclusion

48. For the reasons given, I would dismiss the appeal.

Lord Justice Treacy :

49. I agree.

Mr Justice Newey :

50. I also agree.