England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
ADMINISTRATIVE COURT

		Royal Courts of Justice Strand, London, WC2A 2LL
		21 December 2006

Mrs Justice Black :

1. This is an application for permission to apply for judicial review of two decisions made by the defendant, Northamptonshire County Council, in relation to their provision for disabled adults.
2. The 40 claimants all have disabilities of various kinds. They use various facilities ranging from respite care homes to day centres. I appreciate that anxieties and stresses are imposed upon vulnerable people such as these claimants and their carers when changes to their services are proposed and their feelings about what is happening are clear from their statements. This hearing is not concerned with the circumstances of particular individuals, however. It is concerned with issues of general principle. These issues have been argued on behalf of all the claimants by their solicitor, Ms Hossack.
3. The decisions that the claimants wish to have reviewed were made by the defendant's Cabinet on 11 September 2006 and are:

a) to raise the threshold for eligibility for community care services

b) to close two respite care centres, Cranwell Resource Centre (Cranwell) and Quarry House, on 31 December 2006 and 30 June 2007 respectively and to make provision for respite care by alternative means.

It needs to be made clear at the outset that the claimants' complaint about the closure of the respite care centres is not about the loss of those particular buildings but about the reduction in traditional respite care beds in Northamptonshire from 41 to 15 that will flow from it.

4. The defendant took these decisions in an attempt to make savings to remedy its budget deficit of £45m. It is accepted by the claimants that the Council is in real and immediate financial difficulty. Without the variation in the eligibility criteria, the projected overspend on community care services in 2006/07 would have been around £5-5.2m.
5. The precise terms of the decisions can be found recorded in the minutes of the Cabinet meeting which are in the defendant's bundle. In relation to the decision to change the eligibility criteria, it was resolved that the revised policy framework would be implemented from 1 October 2006 but with transitional arrangements for existing services to reduce the risk to individuals and carers. The Cabinet endorsed progress on joint work to maintain and develop preventative services and to secure voluntary and community sector (VCS) arrangements so that more services could be delivered through the VCS. It also adopted a revised charging policy. As to the two respite centres, whilst resolving for the termination of their present role, the Cabinet contemplated that there would be potential for long-term learning disability provision at Quarry House.
6. The first formal intimation of forthcoming change was in the form of initial letters dated 13 February 2006 to those who used Cranwell and Quarry House informing them that:-

"The Northamptonshire County Council has been thinking about the best way to give people with learning disabilities a short term break in the future.

It is clear that Cranwell has always been known to give an excellent service to people over many years.

However, the County Council has decided that short-term breaks and respite care should no longer be provided in buildings such as Cranwell because of problems with the layout and use of the building (difficult for people to use wheelchairs and go up and down stairs).

Instead the Council wants to make sure that in the future people with learning disabilities have lots of different ways of meeting their needs – not just by being inside residential homes.

There will be an opportunity for you to speak up and have your say about these plans over the next few weeks and months. "

It seems that a parallel letter was sent to their relatives/carers at the same time which said that "the cabinet of NCC have included in their budget plans for 2006/07 proposals to close Cranwell Resource Centre/Quarry House" and that the period of public consultation would commence immediately. The letter said that "[t]he final decision will be made by Council later this month taking into account the comments received during the consultation period." It also said that if the centres were closed, there would be an assessment of need to ensure the disabled person got the right level of support in future.

7. These communications led to the impression that, at worst, the decision in principle to close the facilities had already been made by virtue of the new budget plans or, at best, it would be made during February 2006.
8. Ms Hossack commenced a claim for judicial review against the County Council on behalf of a number of claimants, seeking permission to challenge the decision of the Cabinet to recommend a budget which involved cutting resources for services to various sectors of the community, including disabled adults. She obtained interim relief from Mr Justice Forbes which prohibited the Council from setting its budget or taking any steps to implement its budget proposals. This injunction was subsequently varied by Mr Justice Forbes on 28 February 2006 upon the Council stating that its budget resolution was not a final determination of the amount to be spent within each service area through the financial year, that it had flexibility to amend the amount to be spent within each service to take account of changing circumstances and factors, and that its proposed precept was not dependent on the closure of or any material change to any specified facility. Ms Hossack has invited my attention to the draft of the order to which she wished the defendant to submit on 28 February 2006 because she lays weight, in her argument in relation to the judicial review that I am considering, on the fact that the defendant declined to give an assurance that the proposed precept was not dependent on "any raising of the criteria for eligibility for any specified facility or service".
9. Hearing the permission application on 15 March 2006, Mr Justice Beatson observed:

"Initially the consultation process was, in my judgment, problematic in respect of all the facilities."

By the time of the permission hearing, however, the Council had accepted that budgetary reduction in funding for services did not entail a decision to cease and reduce services which could only be made following consultation. Whatever may have been wrong with the initial letters, the Council were proposing an open process with consultation which would take account of all the substantive considerations which it was proper for a Council to take into account in making a decision. They envisaged a two stage process of a decision in principle and, if the decision was to close or reduce a service, individual assessments and identification of alternatives before any final decision was made.

10. In the circumstances, Mr Justice Beatson refused permission.
11. Since then, there has been considerable consultation.
12. The consultation process in relation to the eligibility criteria started on 15 May 2006 and concluded on 11 August 2006. The aspects of the consultation can be found conveniently summarised in paragraph 8 of Miss Morris's outline submissions on behalf of the defendant but are set out more fully in the Summary Report on the Outcome of the Consultation on the Proposals by Northamptonshire County Council to Change Eligibility Criteria and Charging Policy. Features included a consultation pack, including a questionnaire (with a simplified form including cartoon style pictures for service users and various other forms of the consultation document to cater for other particular needs), a consultation helpline, focus groups, locality user meetings, public meetings and a range of advocacy services for service users to help them to understand and participate in the consultation. Because of the different needs of the users, different skills were required of the various advocates and the defendant provided details of what services were available with contact details. Consultation meetings were held in the various centres where services were delivered to the service users and arrangements were made by the defendant for advocates to be present at these meetings who had the skills to help the sorts of people who used the centre in question.
13. Following the initial letters of 13 February 2006, the consultation process in relation to the closure of Cranwell and Quarry House ran from 23 February to 11 August 2006. The details of this process are again listed in Miss Morris's outline submissions. It included detailed consultation documents and questionnaires, public meetings, and individual meetings with service users and their relatives to assess the impact of the proposed closures including meetings with the services of independent advocates.
14. On 10 July 2006, during the consultation period, the defendant's Cabinet agreed some core principles "for the provision of low-level preventative services and its work with the VCS" and agreed to invest £600,000 towards developing voluntary sector provision.
15. When the Council considered what decisions to make on 11 September 2006, it had reports from the Director for Community Services on Eligibility and Charging and on the future of Cranwell and Quarry House and a report from the Eligibility Criteria and Charging Policy Scrutiny Sub-Committee. The results of the consultation process were appended to the reports and included a summary of the responses to the questionnaires and at meetings. The reports reveal that in arriving at recommendations for Cabinet, consideration had been given to a range of alternative options which are there set out. In relation to eligibility, these included reducing the cost base of social care services in other ways, charging users more for services, raising the eligibility threshold to critical, increasing council tax above inflation although this would lead to a reduction in the central government grant to the Council, and extending the planned transition process.
16. The Cabinet was addressed by a number of members of the public, including Ms Hossack who spoke on both decisions. The comments recorded in the minutes as having been made by these speakers included, in relation to eligibility criteria, that there were concerns that there would be more suicides and admissions to hospital under the mental health criteria and similarly, in relation to Cranwell and Quarry House, that consideration should be given to those who did not have holidays or a break and who felt on the brink of suicide.
17. These proceedings for judicial review were commenced on 27 September 2006. An application was made for an interim order that the defendant should take no steps to implement its decisions of 11 September 2006. This application was made without notice out of hours to Mr Justice Irwin on 28 September 2006, regrettably without full information being provided to the judge. The injunction that he then granted was set aside on 4 October 2006 by Mr Justice Stanley Burnton on the grounds of non-disclosure. The claimants were refused permission to appeal against his order by the Court of Appeal on 11 October 2006.
18. The claimants renewed their application for an interim injunction in front of Mr Justice Collins on 7 November 2006 and he refused it, listing this permission application for the week commencing 27 November 2006, which is how it came before me.
19. The judicial review claim form alleges that the decisions taken on 11 September 2006 will lead to the closure of the various work and other facilities upon which the claimants depend and give rise to risks of breakdown in their mental and physical health, breakdown in their family units and suicide. It is also asserted that there will be a risk of them becoming a danger to others. These assertions appear to be based (or based at least in part) on the apprehension that the decisions will lead to the closure of work facilities used by the claimants because funding will be withdrawn from disabled people using the facilities who will not be able to attend, thus depriving the facilities of the income that they need to run and also the mix of skills that they need from those attending. The prognosis in the claim form is that this will also imperil small family care homes which may no longer be able to function if not supported by the provision of work or other placements during the week which provide essential respite from looking after the service users.
20. In order to understand and evaluate the grounds of the claimants' proposed challenge, one needs to have some understanding of the practicalities that attend the relevant decisions and I therefore intend to set out at this point some of the background information with which I have been provided.
21. The defendant's eligibility policy determines who receives services directly from the Council. There are four bands of need. The most needy people are classed as "Critical"; this includes those whose life is or will be threatened and/or who have or will develop significant health problems. The next category down is "Substantial" , followed by "Moderate" and then "Low". It is only those in the Substantial band who will be affected by the planned change in the eligibility criteria. Instead of all those classified as Substantial receiving services from the County Council, only those who fall into the upper end of the band and are classed as "Greater Substantial" will continue to do so; those who are classed as "Lesser Substantial" will no longer be eligible. Those in the Critical band will carry on receiving services as they have up to now and those classed as Moderate and Low will continue to be ineligible.
22. The defendant estimates that the change in the eligibility criteria will affect about 1500 of the 7000 current service users and the saving will be a reduction in costs ultimately of £4.9 m per year. With changes in the charging policy as well, the ultimate saving is estimated to be £5.8 m from 2008-09.
23. Where the new eligibility criteria result in a change for an individual, a reassessment of that person's needs will be carried out. According to what was said at the 11 September 2006 Cabinet the whole process of individual reassessments could take a year. No individual's care package will be altered without a prior reassessment. Many of the 1500 affected are likely to have their services reduced rather than withdrawn completely. Where the Council itself will no longer be providing services, the users may be eligible to receive services instead from the voluntary and community sector or through the alternative medium of the Primary Care Trust. Transitional provision will be made available for those whose services are changing.
24. The defendant is not the only council to alter its eligibility criteria. There are other authorities where the criteria have been amended so that only those who are designated Critical are eligible for provision.
25. As far as Cranwell and Quarry House are concerned, these buildings are not of a type/standard which is considered appropriate for modern respite care. Furthermore, a proportion of the beds have been unoccupied. The defendant is therefore seeking better ways to provide respite care. As other methods are now thought to be better than the traditional temporary admission to a respite care home, the number of respite care beds in the county will be reduced although a number of respite beds will remain elsewhere than at Cranwell and Quarry House.

The grounds of the proposed challenge

26. The claimants argue that the defendant has been irrational in its decision making for a number of reasons. As they appear in Ms Hossack's outline submissions, the reasons are these:

a. The defendant failed anxiously to scrutinise the financial effects of the decisions

b. The consultation process was flawed

c. The decision had already been made

d. The defendant failed properly to consider alternatives

e. The defendant failed anxiously to scrutinise risk.

27. As a background to her submissions, Ms Hossack draws attention to the advice given to the defendant by the Audit Commission. The Annual Audit and Inspection Letter dated January 2006 is in the bundle. The Commission recommends that the Council should ensure that "its 2006/07 budget is deliverable, thoroughly risk assessed and is consistent with its medium-term financial strategy and its overall corporate objectives". It is advised to ensure that "it makes investment and disposal decisions based on thorough option appraisal and whole life costing on all of its projects". The Commission also observed that the Council could develop further by ensuring "that the impact of investment decisions on outcomes for users is assessed and delivered". The case for the claimants is that this advice has not been followed. In short, their argument is that the Council has not taken a medium or long term view at all, has not assessed the risks of its reforms and has not taken into account the impact of them on users of their services.
28. I will attempt to distil in the paragraphs that follow the arguments set out in the amended claim form, the written outline submissions on behalf of the claimants and Ms Hossack's oral submissions, in order to determine, in the light of the response of the defendant, whether the claimants have an arguable case which should be permitted to proceed to judicial review.

Failure to assess financial risk

29. Ms Hossack submits that the defendant has failed to assess financial risk because it has looked only at the savings that can be made without taking account of the risk of extra costs arising from the changes to its provision. Her points are:

a. The projected savings of £5.8m would be reduced to £5.2m if proper account were taken of what may be an ongoing payment to the voluntary sector of £600,000.

b. There is a risk of extra cost from placing people who are currently in small care homes in the county in residential placements out of the county. Care packages can cost as much as £3,000 per week per person (see the figures in the Audit Commission letter) so this may be a very significant burden. The Cabinet should specifically have been advised of this before they made a decision as the forecast savings would be wiped out if only 31 of the 1500 people that it is anticipated will be affected by the changes required this sort of care.

c. There is also a risk of extra cost in providing out of county placements for those whose care in their own homes is no longer possible because of increased strain on the carers. Once again the cost burden of this may be very significant.

d. There may be personal injury claims from those who take over work with the service users in the voluntary sector and by providing respite care in family placements; this will lead to an increase either in damages payable by the defendant or in their insurance premiums if they are insured. The basis for this argument seems to be the suggestion that those in the voluntary sector and offering family placements will not be sufficiently expert to prevent the people for whom they are caring becoming violent. It ties in with the claimants' wider argument about risk with which I deal below.

Failure to consult properly

30. This ground of challenge includes a number of aspects, all designed to reveal the consultation process as a sham in that it was not accessible to those who should have been consulted and the results did not make any difference to the outcome and were never intended to.
31. Firstly it is argued that the defendant did not consult at what is described in the claim form as "a formulative stage". This argument can conveniently be dealt with when I come to deal with the separate assertion that the decisions had already been made well before 11 September 2006.
32. Secondly, it is argued that the defendant failed to ensure that the views of mentally impaired people were properly or conscientiously taken into account. This can be broken down into sub-categories:

a. It is asserted that no advocacy service at all was provided to those facing a change in eligibility.

b. The advocacy service provided in respect of the closure of Cranwell and Quarry House was in the claimants' view inadequate. It was funded by the defendant and the qualifications of the advocates are not known. It is said that most of the claimants were unaware of the service and/or unable to access it. Of those who were informed of it, a number viewed it with suspicion, possibly because "the Authority refused to meet with the service users own independent legal advisers". None of those interviewed by the advocacy service were informed that they had the right to take independent advice or to challenge any decision made.

c. The advocacy service itself expressed the view at Cabinet that they were unable to meet the task due to their late appointment and inadequacy of resources and that the consultation was flawed because it was inadequate.

d. There is a complaint that meetings were held with service users without their carers or advocates. This meant, it is said, that many of them were out of their depth and unable to participate. When they did participate, their responses were "improperly recorded, and twisted so as to support the Defendant's desired outcomes". Others were not able to attend at all because only those who were able to express themselves were invited.

e. The paper consultation documents were not accessible and the pictures were not helpful, just childish and insulting.

f. There was no opportunity to suggest how another facility could be closed rather than an individual claimant's own service. They and their carers were not given enough information to enable them to make suggestions of alternative ways in which money could be saved.

33. In criticising the process of consulting service users, the claimants place considerable reliance on the statement of Jan Jourard. She is a psychologist with 28 years experience in the mental health field and is the mother of one of the claimants, a man with Downs Syndrome who uses a work facility which is part of the Choices project. Her evidence is that the consultation process was "inaccessible and traumatizing" for her son and for others with similar levels of disability for reasons which she sets out fully in her statement. She complains that relatives and carers were generally excluded from the consultation meetings with service users which increased their levels of anxiety; she in fact insisted on being present. She says that many learning disabled people cannot understand future effects sufficiently to comment on the impact changes are likely to have on them and that an appropriate expert should advise. Her son was not able to engage with the consultation process because he was not willing to believe that it was possible that the service he used would go. When service users were asked during the consultation meeting that he attended whether they liked change, he replied "Yes I love change." He would not have known that this could be taken to indicate that he would accept the loss of his service and yet that is what Mrs Jourard thinks happened by virtue of the passage in the report to Cabinet of 11 September 2006 which records the findings from the consultation thus, "Although some people want to see services change this needs to manage this [sic] in a reasonable time to help people to adjust." Mrs Jourard fears her son will in fact be adversely affected by the proposed changes.
34. Thirdly, it is argued that the defendant failed conscientiously to inform itself of the risks to service users of a deterioration in their mental health and the probability of the breakdown of their placements.
35. Fourthly, it is argued in the claim form (although prudently not pressed in written outline submissions for the permission hearing or in oral argument, I noted) that the defendant failed to consult with the claimants' solicitor. The particulars of this allegation are set out in the amended claim form.
36. The views of those who care for the claimants about the consultation process are exemplified by the statement of Sir Anthony Grabham whose daughter is one of the claimants. He says in terms that he saw the consultation as a sham and wholly insincere and sets out his view that the decision makers never had open minds.

Decision had already been made

37. The claimants invite attention to a number of documents which they say reveal that the decision had been made by 13 February 2006 and therefore that the consultation process, exploration of alternatives and so on were all irrelevant.
38. The previous judicial review proceedings ended on the assurance of the Council that no decisions had been made. Of the documents available at that time, as I have set out above I have been referred to the letters dated 13 February 2006 sent to users of Cranwell and Quarry House and to the draft of the order that Ms Hossack was seeking on 28 February 2006. Ms Hossack argues that the refusal of the defendant to have included in that order that its precept was not dependent on a rise in the threshold of eligibility reveals that the change in the threshold was already decided by then.
39. Miss Hossack argues that the budget had been set knowing that it could not work without the raising of eligibility criteria and the closing of Cranwell and Quarry House as respite centres. She submits that the reports to Cabinet on 11 September 2006 reveal that the decision had been made long ago.
40. She also submits that the investment of £600,000 in the voluntary sector in July 2006 would not have been made by any financially prudent authority unless it was already "certain" that it was withdrawing from much of its own direct care provision.
41. In oral argument, it was submitted that comments in the Audit Commission letter of January 2006 indicated that a decision had been taken as early as that. The passage particularly in question is at paragraph 22 where it is stated:

"The Council is putting management actions in place to reduce the overspend in Community Services by around £2 million."

42. Just before the permission hearing, Ms Hossack put in a new document. This was a news release from the Council dated 11 December 2006 which spoke of the cost to the Council of failed High Court actions against them this year being around £2m spent on legal fees and "lost to proposal delays". She says that I should infer that most of this loss would have been on delays, not on legal fees, and that I should therefore go on to infer that had it not been for these legal proceedings, the Council would have made cuts much sooner including closing the respite centres in Spring 2006. I have thought about this argument but I have no breakdown of the legal costs involved this year and I do not consider that inference from an assertion of this type in a press release is even arguably a safe or valid route to a conclusion that the decisions that the claimants seek to challenge had been made long before consultation and discussion took place.

No proper consideration of alternatives

43. It is accepted by the claimants that the defendant had to make savings. Their complaint is that cuts were simply imposed on disabled people without the Council considering in the round how to address its budget problems.
44. It is argued on behalf of the claimants that although the report to Cabinet on 11 September 2006 on eligibility says that all potential options have been considered and a number of alternatives are listed (and similarly the report on the respite care centres lists alternatives), the alternatives all relate to services to disabled people because the defendant did not consider cutting resources from other service areas so that they need not be cut in the field of social care and health. It is also said that the option of increasing council tax was not properly considered.
45. The judicial review claim form also relies on the failure of the defendant to consider that after the decommissioning of Cranwell and Quarry House they should be sold and the proceeds invested in a new resource centre. This was not pursued in front of me, no doubt because it is now clear that the decommissioning of Cranwell would not, in fact, make available any capital fund to the defendant.

Failure properly to assess risk

46. It is argued that the defendant's decision places service users, carers and voluntary sector suppliers of services at risk and either the defendant failed to assess the risk or failed to take it into account at all or acted unlawfully in making decisions irrespective of the risk. In the written outline submissions for this hearing, Ms Hossack says, "In fact there are very serious risks to service users some of whom have made previous suicide attempts and others who have also suffered with depression. At no point within its report could decision makers deduce that there were risks of ill health and of death. Nor would decision makers deduce that the loss of service could, in the words of Sir Anthony Grabham at paras 9 to 11 pages 35,36 C's bundle that [sic] there was a risk to any individual that a person's "personality will deteriorate rapidly and that her lethargy and deep depression will return and that her already limited quality of life will fall apart"."
47. It is further argued that it was irrational for a decision to be made reliant on a prevention strategy which was to be developed in partnership with the VCS in order to complement the delivery of social care services by the Council but which was not yet in place.
48. A significant element in the fear concerning risk appears to be the apprehension that services provided by the voluntary sector will be inferior to those provided directly by the Council. There is reference in the claim form to "unskilled and untrained volunteers" and to the fact that skills to deal with particular needs "are not developed "on the hoof"" and that there is no time to train volunteers or for them to gain sufficient experience before the new plans come into force.
49. Another significant element is an anticipation that it is "highly unlikely that sufficient numbers of informal respite care providers can be found for those service users who fall below "greater substantial" need but whose needs are challenging and/or present a risk." It is apprehended that the needs of many service users will therefore go unmet.
50. The claimants say that the most that the decision makers knew of these risks was that, as the report to Cabinet on eligibility set out, "Any changes in services to carers may put extra stress on the person who is caring and the situation may reach crisis point quickly."
51. As the claimants' argument developed during oral submissions, there was some emphasis on the need for prior assessment of individual service users before decisions were taken as to cuts so that the decision makers would know what the impact of the changes would actually be. They say that many of them had not had a reassessment of their needs for years and the defendant could not therefore know with any degree of certainty what effect the changes would have.

The arguability of the claimants' challenge in the light of the defendant's submissions

52. The defendant emphasises the distinct processes that were involved in arriving at the two decisions that the claimants seek to challenge. These processes are, in my view, quite clear from the documentation with which I have been provided and I have been careful to consider them separately although, of course, there is some overlap in the arguments relating to them.
53. The defendant accepts that there were duties on it to ensure that its decision making process was proper and that the decisions arrived at would not be open to challenge on public law grounds. On behalf of the claimants, Ms Hossack sought to rely on a number of authorities and there was little relevant debate about the principles that she sought to draw from them. Thus it is common ground that:

• Where human rights are concerned anxious scrutiny is required. The defendant, however, submitted that the proposed changes do not threaten human rights; if they did, services would not be altered or withdrawn.

• A decision maker must have adequate information at the time of the decision and the decision must be arrived at in a way that is procedurally fair.

• Alternatives must be considered in making the decision.

• Conditions or scrutiny after the event of the decision are no substitute for proper information being available at the time.

54. The claimants also rely on R (Bradley) v The Jockey Club which they say establishes a right to work (relevant, in their submission, to the question of the loss of workplace provision for some of the claimants). The defendants did not accept this as an absolute proposition. Any right to work would be a qualified right, in their submission, and they submitted, rightly in my judgment, that it would have to be considered in the light of the competing requirements for the Council's resources.
55. The defendant submits that there was no illegality in the process adopted in relation to either decision.
56. It submits, and I accept, that there were good grounds to consider the closure of Cranwell and Quarry House in the light of under-use and the old fashioned nature of the provision. Indeed, as I have said, the claimants do not protest at the closure of these centres but rather at the reduction in respite care beds. Similarly, in the light of the budget deficit, it was legitimate to give consideration to altering the eligibility criteria and, in any event, the statutory guidance on eligibility criteria, Fair Access to Care Services (FACS), provides that councils should review their eligibility criteria in line with their usual budget cycles. The guidance in FACS makes it quite plain that eligibility criteria have to be set in the light of a council's resources and that councils should focus help on those in the greatest immediate or longer-term need and should consider the benefits of preventative action.
57. The defendant denies that either of its decision was made prior to consultation or that it failed to take the results of the consultations properly into account. Its case is that it carried out a full, lengthy and detailed consultation in relation to each decision then conscientiously took the results into account in making recommendations as well as presenting the results to the Cabinet in September 2006.
58. The defendant identifies a number of respects in which its proposals changed over the course of 2006 which it submits show that the decisions were far from concluded early in the year.
59. The witness statement of John Neilson on behalf of the Council sets out that in response to the overwhelming level of concern expressed in the public consultation about the eligibility criteria and the potentially significant impact on existing service users who would cease to be eligible for services, the Cabinet agreed transitional arrangements which would cost the Council a total of £640,000 over two financial years. Recommendations that the scrutiny sub-committee made in their report for the 11 September 2006 were also adopted by the Cabinet on that day.
60. I do not consider that the refusal of the defendant to allow the incorporation of any statement about the eligibility criteria into the order of 28 February 2006 indicated that the decision on the criteria had been made by then. Those proceedings were not about eligibility criteria and it was not to the point.
61. I have borne in mind the statements to which Ms Hossack drew my attention, such as the passage in the Audit Commission letter about the budget, but they cannot, in my view, be looked at in isolation. It is necessary, in determining whether either of the defendant's decisions was pre-judged, to look at the matter in the round without placing undue weight on comments which were not written with that issue in mind. I do not consider that either of the decisions was predetermined. That the defendant altered its plans during the period preceding 11 September 2006 in material ways to respond to various issues that came up is evidence that the decisions were still open until the Cabinet meeting made its resolutions. That impression is further underlined by the consultation process and the use of its results in formulating policy and reporting to the Cabinet to which I shall come shortly.
62. As far as Cranwell and Quarry House are concerned, whilst I agree with Mr Justice Beatson that the consultation process appears in its very early stages to have been problematic, the decision making process changed course from later February 2006 and there was no early closure of either facility. The council's initial proposal was modified prior to September 2006 by postponing the proposed closure of Quarry House until summer 2007, allowing for a full re-assessment of all those who would be affected and implementation of any changes, with the plan to retain it thereafter for a slightly different purpose. This required £240,000 to be diverted from other parts of the budget. As with the eligibility criteria, these amendments indicate that there was no concluded decision prior to 11 September 2006 and this impression is similarly underlined by the consultation process.
63. I accept that the consultation processes for each decision were indeed full and detailed. There were, it seems, some deficiencies in the process of consulting the adults with learning disabilities who may be affected by the changes. The consultation for the Cranwell/Quarry House decision was carried out with the assistance of Disabled People's Alliance Northamptonshire which describes itself as "an organisation run and controlled by disabled people". There is no evidence that it was aligned with the defendant even if the cost of the advocacy service was paid by the defendant, any more than there is reason to suppose that the many advocacy services available to those consulted about the eligibility criteria were partisan. The Disabled People's Alliance report on the views of service users voices their concern that the timescales for their work were far too short and that advocates did not have time to develop a relationship with some service users that was necessary to ensure a totally independent response and that "a small number of parents and carers" felt that their child had not been given a real opportunity to say what they thought because they had not been at the meeting to support them. The report comments that whilst the consultation was undertaken in an independent way, there will be a number of existing respite care users that will not have been given adequate opportunity to express any view regarding their respite care.
64. It was inevitable, in my view, that consulting adults with learning disabilities would be a challenging process. Perfection will never be achieved in such an exercise. However the council give every appearance of having gone about it responsibly and they succeeded to a tolerable extent. I do not think that it can validly be argued that such flaws as there were invalidated the consultation. The difficulties that there were bound to be are exemplified by the fact that the questionnaire with pictures that the claimants found objectionable had in fact been devised by the Disabled People's Alliance.
65. I do not think it arguable that it was a necessary feature of a valid consultation that there should be expert assessment/assistance in obtaining the views of service users, nor was it indispensable to include parents/carers in that part of the consultation although some parents/carers clearly would have liked to support their children in the process. Furthermore, this was not a legal decision and it was not necessary to consult with the service users' legal representative.
66. The consultation process, whether of the service users or other interested parties, produced a considerable amount of material, quite a lot of it critical of the defendant's plans. By way of example of the angry rejection of what was planned, one has only to look at the report on the consultation about Cranwell at page 330/1 of the claimants' bundle. All the information was conveyed appropriately to the decision makers by means of full reports on the consultation. Whilst I appreciate that Mrs Jourard has taken the reference in the report on eligibility to it being a finding of the consultation that "some people wanted to see service change" as a misrepresentation of what her son said, there were many service users and others consulted and this is not a tenable hypothesis. There is no evidence, in fact, of misrepresentation of the consultation findings to the decision makers.
67. It is notable that amongst the consultation findings reported to Cabinet there was reference to changes in services putting extra stress on carers leading to crises and to the possibility of a rapid deterioration in people's conditions were social contact through day care not to be supported. These are precisely the sort of risks that the claimants complain were not made known to the decision makers.
68. Looking at the way in which both consultation processes were carried out and the way in which the results were placed before the decision makers and had an impact on their planning, there does not seem to me to be an arguable case that the consultation was flawed in a way that would undermine the legitimacy of the decisions which the claimants seek to challenge.
69. I turn now to the argument that there was a failure properly to assess risk. Dealing first with the submission that prior assessments of all service users were necessary before a decision could be made, I do not consider this to be arguable. There is no legal obligation to carry out individual assessments before respite care centres like Cranwell and Quarry Hill are actually closed, let alone before the decision to close them is taken (R (Bishop) v L B Bromley [2006]). There can be no legal obligation to carry out individual assessments before altering eligibility criteria either. The council did, undoubtedly, require a reliable basis for assessing the financial savings of its proposals and the resulting impact on users and for this purpose it had to form a view as to the way in which the changes would be likely to affect individuals. Given that it would have been quite impractical (and not cost effective) to do this by universal individual assessments, it was entitled to proceed, as it did, by taking samples of the population who were entitled to its services at present, assessing how these people would be affected and then extrapolating from the results to see what the impact would be overall.
70. Individual assessments will be carried out before any individual's service is changed. This ensures that the council will not precipitate the sort of risks that the claimants fear such as suicide, mental breakdown and breakdown of family placements and deals with the argument that huge costs of alternative placements had not been taken into account. Where such extreme risks exist, services will continue to be available as the service user will remain classified as at least in the Greater Substantial band. The evidence of Fiona Seymour shows that the individual assessment process resulted in an increase in services to some people. Where the changes would, strictly speaking, disentitle a person who presently receives services but without the services the person would be at serious risk, then they would continue to be provided. Where there is a dispute following individual assessment about eligibility or as to the effects that withdrawing a service would have, the service will remain in place whilst the dispute was resolved in the council's complaints procedure. If this did not produce an outcome that the individual found satisfactory, he could appeal to the Local Government Ombudsman. If ultimately any person had his service withdrawn, transitional and preventative arrangements would mitigate the effects. Some services would in any event be made good by provision from the health or voluntary sectors.
71. In so far as users of the respite care centres are concerned, they too will be reassessed before the centres close and suitable alternative provision will be found. There is no evidence that this will be inadequate. If, however, a particular user of the service felt dissatisfied with the proposals for him, he too would be able to use the council's statutory complaints procedures and then to take the matter up with the Local Government Ombudsman if necessary.
72. I turn to the claimants' argument that there will be a material increase in risks because of reliance on services not provided directly by the council and that this has not been taken into account. Once again, I do not consider there to be any tenable argument on this basis. It is important to appreciate that the voluntary sector does not mean untrained inexperienced volunteers. The services presently praised by the claimants include voluntary sector provision, for example by Teamwork. Reference to the voluntary sector denotes that the service will not be provided by the council itself directly and that the organisation which does provide it is not working for a profit. Voluntary and community sector providers are, however, commissioned by the council under detailed contractual arrangements which include detailed requirements as to the training and skills of their staff, criminal records checks and so on. The regulation is just as stringent as for public sector providers and there is the same monitoring procedure as for other bodies. In the circumstances, there is no tenable argument that the use of these providers will give rise to increased risks that should have been taken into account practically and financially by the decision maker.
73. Furthermore, use of the VCS is not just a response by this authority to budget strictures, it is in line with central government guidance in the light of the benefits that these more responsive services can provide. This is the explanation for the injection of £600,000 into the VCS by the defendant in July 2006, not any pre-existing decision on eligibility.
74. My purpose has been to examine whether permission for judicial review should be granted and in so doing, I have looked assiduously for any arguable challenge that might be mounted to the two decisions of the defendant in relation to which the claimants complain. I have not found any arguable illegality in the decision making process of the defendant. Furthermore, in so far as individuals are ultimately dissatisfied with the way in which they fall to be treated with regard to service provision, they have alternative remedies available to them which will enable their individual circumstances to be considered. I therefore refuse permission.
75. I will hear argument as to costs when this judgment is handed down. I would be most grateful if in preparation, I could be provided with written arguments by both sides on the subject. These can be supplemented orally if necessary.