England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT

		Royal Courts of Justice Strand London WC2A 2LL
		2 March 2009

MR JUSTICE CRANSTON:

1. Introduction:

This judicial review concerns the impact of the Disability Discrimination Act of 1995 ("the DDA") on community care assessments. Initially the claimant challenged the continuing failure of Birmingham City Council ("the council") to reassess his community care needs in sufficient time to attend university in September of last year. He had requested the defendant's social services department to provide him with a particular care package. When the matter came before me at a hearing on 15 December last year I refused permission to proceed with judicial review on public law grounds. By then the council had carried out a further assessment, dated 11 December 2007. In my opinion it could not be said - and no appeal has been taken on the point - that that assessment was irrational in a public law sense, affected by procedural irregularity or otherwise flawed. However, I gave permission for the judicial review to proceed to a hearing because I was troubled whether sufficient regard had been paid to the DDA in the council's deliberations.

2. As a result of the permission hearing, the issues were refined. There were two. The first was whether the council's decision to refuse to provide the claimant with a mobile hoist in order to access toilet facilities at the university conformed with its DDA duties. The second issue was whether the University of Birmingham ("the university") conformed with its DDA duties in refusing to arrange for a second person to assist him transfer from his wheelchair to a hoist if toileting equipment was required. I joined the university as a defendant. Since that time, however, the claimant and the university have agreed a consent order but it is an interested party again. Under that order the university agreed that if the claimant succeeded in his judicial review against the council, and if the council were to be ordered to reconsider its decision of 11 December, the university would reconsider whether it would provide the claimant with a second personal carer to assist with use of the hoist.

Background

3. At the time the claim was begun the claimant was 18 years old. He has Duchenne muscular dystrophy, diagnosed in 1996, congenital hypothyroidism and heart problems. He cannot move his lower limbs by himself and he has limited movement in his arms and hands. He is dependent on others for all aspects of his care. He is able to operate an electric powered wheelchair. However, to transfer from his chair he uses a ceiling track hoist and he requires the assistance to do so from two appropriately skilled carers. He also needs the assistance from carers to help with eating and drinking, bathing, his daily stretching exercises and toileting.
4. When he turned 18 in 2007 the claimant's care was transferred from children services to adult and social care. In January 2008 his need for NHS continuing care was reassessed by his primary care trust. The assessment report concluded that he no longer met the NHS eligibility criteria but that his needs could appropriately be met by a package of social care. In relation to his toileting the assessment said:

"The claimant said that on occasions he is incontinent with either urine or faeces. He will wear an incontinent pad as he feels it is necessary."

The claimant was not happy with the changes and asked social services to review his care package.

5. Meanwhile, the claimant had successfully applied to the university to undertake a bachelor of science course in computer science. The university told him that they would help with specialist equipment and academic support, such as note takers, and that disabled student allowances were available to assist with the cost and specialised transport. However, they told him that the council's social services would need to provide a carer to assist with the personal care which he required. In the claimant's view the carer would need to be with him at all times to help with activities such as eating and toileting. This was in addition to his morning and evening care visits. He would also need to have specialist equipment available on campus, including a hoist and a bed. There was some delay in addressing these issues. It is unnecessary for me to make any finding with regard to responsibility for this.
6. On 14 July 2008 there was a meeting between the university, the manager of the physical disability team at the council, the claimant and his mother. At that meeting the council's representative told them that her team could only deal with emergencies at the moment so there would be no reassessment of his needs. She also said that because the claimant had already been approved for the maximum package from the independent living fund there could be no increase in the number of care hours he would receive. At the July meeting the claimant says that he stated that he would need a toilet, changing table and a hoist, and it was agreed that the council's representative would make a referral to a social services occupational therapist to assess exactly what equipment was needed.
7. In mid August 2008 the claimant instructed Public Law Solicitors to assist him. Later in August they wrote a letter before claim to the council regarding the required assessment and care plan. In September the council conducted an assessment. It was a social work assessment of some 24-pages in accordance with the Fair Access to Care Standards explained subsequently in this judgment. Those present at the assessment were the claimant, his mother, a representative of the council and his social worker, Mr Bennie. The claimant's college, Cadbury college, and Acorns Children's Hospice were consulted.
8. The assessment contained a great deal of information about matters such as the claimant, his communicating, his regular contacts, his current forms of support, his routines, his home environment and his mobility. Under a heading "additional information and observations" the assessment referred to the claimant's toileting. The report writer said that she had spoken to Cadbury College and she had been informed that the claimant coped while attending the college and managed with only one carer throughout his time there. The college had purchased a hoist for him to use if he needed it, but throughout his time at the college it had remained in its packaging. The assessment went on to opine that when the claimant attended university he would need a carer with him during his core hours of 9 to 5 to assist with personal care and toileting.
9. As an appendix to the assessment there is what is called a fair access to care services summary. One heading is autonomy, the control a person has over their immediate situation and the extent to which they are able to make and act upon informed choices. Listed there is the need for one-to-one care while the claimant is at university, which is required, it is said, because otherwise he will not be able to attend courses if care is not provided, and that would seriously impact upon his independence, confidence and well-being. The risk level in relation to that is stated to be critical 3. That is explained subsequently in the assessment as:

"There is or will be little or no choice or control over vital aspects of the immediate environment."

10. The claimant attended the induction days at the university on 12 and 18 September 2008. On both days the social worker arranged for a care worker to accompany him and to provide transport. However, late in the day, on 18 September, the council told him that arrangements would not be in place for the start of his course on 22 September. On 19 September the university said that they would cover travel costs and educational needs support until his disabled students allowance was in place. They also said that they would for the moment cover the cost of the specialist equipment.
11. There was a meeting on the university campus on 28 October 2008 in the disabled toilet facility in the Nuffield Building at the university. Present were the claimant, his mother, an occupational therapist and a disability officer. The occupational therapist assessed the suitability of the facility, took measurements and stated that she felt there was adequate space to accommodate all the necessary equipment.
12. Then, on 13 October, a learner support agreement was completed by the university. This was a pre-admission assessment of support needs for the claimant. Under one heading, "personal care", the agreement said that the claimant required a fully adapted toileting facility with necessary equipment to enable his personal care to be managed.
13. The occupational therapist's report became available on 21 November. Without going into the details, the claimant was said to be continent of faeces and had a bowel regime in place which involved him using the toilet in the evenings at home when he had two carers visit: "This already established regime means there should be no need to duplicate this evening routine throughout the day". The occupational therapist's report went on to say that if the claimant did need bowel care during the day at university then the equipment as specified in the report would be necessary to enable him to transfer between his wheelchair, the toilet and the changing table. The approximate cost of the equipment was £4,000.
14. The decision by the council of 11 December, subject to challenge in this judicial review, was a "report detailing the review of service provision to the claimant." It was completed by an operations manager, who says that she had reviewed the care package and had spoken to Mr Bennie, the claimant's social worker. Mr Bennie had met with the claimant in early December for the purpose of commencing the review but, unfortunately, was away on long-term illness. The operations manager had not spoken directly to the claimant. The report set out the personal care needed by the claimant at university. It noted that Mr Bennie had recommend that the claimant be provided with a further five and a quarter hours of personal care which could be utilised for an escort to and from the university. In relation to toileting there was a reference to the occupational therapist's assessment and, in particular, to the information obtained from Cadbury College. In addition, the report said that enquiries had revealed that the claimant had not had to use toileting so far during his time at the university. He had said to Mr Bennie that he sometimes had to "hold in" while at university. However, the report continued that "enquiries with the personal carers who attended the claimant at home in the evening did not support that contention". There had never been a suggestion of his urgently needing to use the toilet on arriving at home. The report writer said that it would be reasonable for the claimant to use incontinence pads, and in the unlikely event, on the evidence, of an accident he could return home, which was a relatively short distance away, to be changed.
15. The report continued that in accordance with its eligibility criteria the council could only meet those needs which pose a "critical" or "substantial" risk to someone's well-being. The evidence of past events indicated that it was unlikely that the claimant would need to use hoisting equipment for the purposes of bowel activity at university. The council could not put in place hoisting equipment and provide the claimant with an additional full-time carer to guard against what appeared to be a very low level of risk. The report writer concluded this section by saying that she did not consider it would be necessary to put in place the toileting equipment detailed in the occupational therapist's report. However, the report did recommend an increase of five and a quarter hours per week of personal care at university and an additional half hour per day personal care at home in the evening.
16. Thus the total package available to the claimant, excluding the toileting facility, was as follows:

"3.1. 1 hour of care by 2 carers at the claimant's home every morning;

3.2. 1 hour of care by 2 carers at the claimant's home every evening;

3.3. 5.25 hours of escorted travel, with 1 carer, to and from university every academic week;

3.4. 40 hours of personal care by 1 carer at university every academic week (in addition to 35 hours of educational help every week, provided by the university but funded by the council, as the local education authority, it having proved impossible to locate an individual who was able and willing to provide both educational help and also personal care);

3.5. Respite care at Acorns Hospice 3-4 times a year."

There is some dispute as to whether the five and a quarter hours of escorted travel is currently being implemented. It is necessary to note that recently the council has agreed to an increase in respite care to 42 nights a year.

17. Just prior to the hearing the claimant obtained an expert report from an independent occupational therapist. She expressed the opinion, on the basis of documents rather than speaking to the claimant, that the council's decision in relation to toileting was:

"at the outer edge of acceptable practice in this area. I believe the need should be considered to be substantial and I think most occupational therapists would agree."

In the light of that report, and of a further statement made by the claimant for the hearing, the council has agreed to revisit the assessment.

18. For the sake of completeness I should also add that, unfortunately, the claimant feels that he must discontinue his course at the university. However, he will begin afresh in September of this year at another university.

Legal framework

(a) Disability Discrimination Act 1995

19. The Disability Discrimination Act 2005 ("the 2005 Act") makes substantial amendments to the Disability Discrimination Act of 1995 ("the DDA"). It builds on amendments already made to that Act by other legislation. As originally enacted the DAA contained provisions making it unlawful to discriminate against a disabled person in relation to employment, goods, facilities, services and premises. It also contained limited provisions relating to education and enabled regulations to be made with regard to accessibility to transport.
20. In broad terms, as the explanatory memorandum to the 2005 Act makes clear, it is part of the effort to secure comprehensive and enforceable civil rights for disabled persons. The Disability Rights Commission had been established in 2000. The Special Educational Needs and Disability Act of 2001 was passed. Further changes were made to the DDA by regulations in 2003 to implement disability aspects of the European Community Employment Directive 2000/78/EC, L303/16.
21. As background to the 2005 Act the Department of Work and Pensions published a document "Consultation on the extension of the DDA to functions of public authorities and the introduction of a duty to promote equality for disabled people" in July 2004, Cm 6255. Chapter 3 of that consultation paper was entitled "Changing cultures: the duty to promote equality". In the course of the chapter the government's belief was set out, that the tradition model of discrimination law was not in itself sufficient to drive forward the changes necessary to enable disabled persons to realise their potential. The failures of the traditional model had a real consequence for disabled people:

"3.3. These failures have real consequences for disabled people. For example, the reduced education and training opportunities afforded to disabled people in the past are one factor underlying the reduced likelihood that disabled people will be in employment in comparison to the rest of the population ..."

In chapter 4, entitled "Promoting equality in practice", the belief was expressed that it was necessary to involve disabled people in decisions affecting them. Reference was made to the Disabled Peoples Movement slogan "nothing about us without us". The consultation paper said that the government agreed that bodies would not be able to identify and prioritise equality initiatives effectively unless they considered the views of disabled people.

22. Sections 1 to 4 of the 2005 Act's measures deal with the duties and functions of public authorities, the focus of this judicial review. Other sections of the Act deal with matters such as transport, advertising, housing and qualifications.
23. Section 2 of the 2005 Act is designed to ensure that, with some exceptions, functions of public authorities not already covered by the DDA are brought within its scope. Thus it is unlawful for a public authority, without justification, to discriminate against a disabled person when exercising its function. In particular sections 21B to 21E prohibit discrimination where not already covered elsewhere in the DAA in the exercise of all public functions other than those of legislation, prosecution, judicial acts and national security. This prohibition of discrimination therefore covers decisions by local authorities such as the council. As the explanatory memorandum points out the definition of discrimination in section 21D is more extensive than its equivalent in its Race Relations Act 1976, as discrimination can include not making a reasonable adjustment to the way a function is carried out.
24. Section 3 of the 2005 introduces a new duty on public authorities. It requires them when exercising their functions to have due regard to the needs to eliminate harassment and unlawful discrimination against disabled persons, to promote positive attitudes towards disabled persons, to encourage participation by them in public life and to promote equality of opportunity between disabled persons and others. In particular section 49A(1) of the Act reads:

"Every public authority shall in carrying out its function have due regard to --

(a) the need to eliminate discrimination that is unlawful under this Act;

(b) the need to eliminate harassment of disabled persons that is related to their disabilities;

(c) the need to promote equality of opportunity between disabled person and other persons;

(d) the need to take steps to take account of disabled persons' disabilities, even where that involves treating disabled persons more favourably than other persons;

(e) the need to promote positive attitudes towards disabled persons; and

(f) the need to encourage participation by disabled persons in public life."

25. Pursuant to section 53A(1)(c) of the DDA the Disabled Rights Commission has published a Code of Practice entitled "The duty to promote disability equality", 2005. Under the heading "Equality of opportunity" the statutory code refers to the objective that disabled people should have full opportunities and choices to improve the quality of their lives and to be respected and included as equal members of society.

"The general duty requires public authorities to give due regard to promoting equality of opportunity between disabled persons and other persons."

In paragraph 2.42 of the statutory code there is specific mention of community care plans:

"When preparing individual community care plans, a local authority should have due regard to the need to promote disability equality. Disability equality is of particular relevance in this context."

The statutory code continues that public authorities should expect to be more carefully scrutinised and accountable for their performance of disability focused functions.

26. In R (Brown) v the Secretary of State for Work and Pensions [2008] EWHC 3158 (Admin) Aikens LJ held that a public authority must take the code into account when considering disability equality issues. If it decides to part from the code, cogent reasons have to be given and they have to be convincing. In addition, Aikens LJ held that if a breach of the general duty in section 49A(1) is alleged, and it appears to a court that relevant guidance given by the code has been ignored, that would be a powerful factor, leading the court to conclude that there was a breach of statutory duty by the public authority. It would be for the public authority, says Aikens LJ, to explain clearly and convincingly the reasons for the lapse.
27. The Disability Discrimination (Public Authorities (Statutory Duties) Regulations 2005, 2005 SI No 2966 obliges local authorities such as the council to publish a disability equality scheme. The council has done that in its disability equality scheme entitled Equality and Diversity, Disability Equality Scheme 2007-2010. In the forward to that document the cabinet member for equality and human resources writes that the council recognises the contribution that the diversity of the city's population has made. The council believe that it is important to accelerate the pace of change in the area of disability equality. The council intends to work towards real outcomes and to support practical improvements in the day-to-day life and experience of disabled people. In the body of the document there is reference to the involvement and consultation of disabled people in decision making affecting them. As an appendix to the document, one objective is stated as enabling disabled young people to have fair access to educational opportunities so as to reach their full potential. A range of specific measures which the council has undertaken to further that objective is set out.

(b) Case law on the general duties in section 49A

28. As indicated section 49A(1) of the DDA sets out six prongs of the general duty to which a public authority such as the council must have due regard to when carrying out its functions.
29. In R (Chavda) v Harrow London Borough Council [2007] EWHC 3064 (Admin) the claimant applied for judicial review of a decision of the local authority to restrict adult care services to people with critical needs as identified under the Fair Access to Care Service Guidance. That decision was taken because of financial constraints. Sitting in this court His Honour Judge Mackie QC, held that there was no evidence that the legal duty under section 49A and its implications had been drawn to the attention of the councillors. They should have been informed not just that the issue of disablement was involved, but of the particular obligations which the law imposed. It was not enough, in his judgment, to attach the summary to the report leading to the council's decision. That referred only obliquely to a potential conflict with the 1995 Act and did not give a busy councillor any idea of the serious duties imposed on the council by the Act. As a result, the council could not weigh matters properly in the balance. His Honour Judge Mackie QC went on to hold that it was not enough to accept that the council had a good disability record and to assume that somehow the message had got across.
30. Subsequently, in R (Brown) v Secretary of State for Work and Pensions [2008] EWHC 3158 (Admin) the Divisional Court considered the application of the DDA duties to post office closures. The claimant was disabled and in a judicial review contended that the programme was flawed because of the failure to observe the duties under the DDA. One aspect of her claim was that the decision was unlawful because the Secretary of State had not published any disability impact assessment or equivalent exercise as regards the impact of post office closure.
31. There is no need for present purposes to enter into the details of the decision in that case. However Aikens LJ, in a judgment representing the judgment of himself and Scott Baker LJ, said that the purpose of the 2005 amendments, and of section 49A(1), was to achieve a climate of change for disabled people and to ensure that their needs were taken into account in the mix as a relevant factor when public authorities took decisions which might affect disabled people. There was no dispute, said Aikens LJ, that the aim of the DDA was to place equality for all at the centre of their organisation. The duties under section 49A(1) were mandatory and public authorities had to have regard to the six needs which were there identified.
32. The duty to have due regard to those various identified needs did not impose, however, a duty to achieve results. It was a duty to have due regard to the need to achieve identified goals. In this respect, Aikens LJ referred to the earlier race relations case of R (Baker) v the Secretary of State for Communities and Local Government [2008] EWHC (Civ) 141, [2008] LGR at 239. Drawing on Baker, Aikens LJ spelt out the meaning of "due regard". There had to be proper regard for all the goals set out in section 49A. At the same time a public authority had also to pay regard to any countervailing factors which in the context of the function being exercised it was proper and reasonable for it to consider. In his view, economic and practical factors would often be important. The weight to be given to the countervailing factors was a matter for the public authority concerned, rather than the court, unless the assessment by the public authority was unreasonable or irrational. Aikens LJ said that the fact that the public authority had not mentioned section 49A(1) specifically was not determinative of whether the duty under the statute had been performed. It was good practice, however, for those exercising public functions and for public authorities to keep an adequate record showing that they had actually considered their disability equality duties and pondered relevant questions: at [94].
33. In relation to section 49A(1)(d) Aikens LJ said that there were two important aspects. First, public authorities had to have due regard to the need to take account of the fact of disabled persons disabilities in the context of carrying out their functions, and, secondly, public authorities have to have due regard to the need to recognise that this might involve treating disabled persons more favourably than others:

"But we emphasise that, in both cases, no duty is imposed to take steps themselves, or to achieve results. The duty is only to have 'due regard to ... the need to take ...' the two steps we have identified. The court will only interfere if the public authority has acted outwith the scope of any reasonable public authority in the circumstances [84]."

Subject to those qualifications, Aikens LJ continued that in fulfilling the duty to have due regard to the identified goals those in a public authority who took decisions which might affect disabled persons had to be made aware of their duty to have due regard to the identified goals: at [90].

(c) Community care assessments

34. By virtue of section 47 of the National Health Service and Community Care Act 1990 ("the 1990 Act") whenever it appears to a council that a person for whom they may provide community care services may be in need of such services, it is under a duty to carry out an assessment of the need for such services. It must have regard to the results of that assessment and decide whether the person's needs call for the provision by them of any such services. Community care services are defined by section 47 of the 1990 Act and include care services under section 29 of the National Assistance Act of 1948 and section 2 of the Chronically Sick and Disabled Persons Act 1970 ("the 1970 Act").
35. Section 2 of the 1970 Act addresses the situation where a local authority is satisfied that it is necessary for it to make arrangements for the provision of assistance to a person in taking advantage of educational facilities: it has a duty to make those arrangements subject to the provisions of section 7 of the Local Authority Social Services Act of 1970. That section provides that in the exercise of their social services functions local authorities must act under the general guidance of the Secretary of State. This means that local authorities have liberty to deviate from the guidance on issues when they have good reason to do so, but they do not have the freedom to take a substantially different course. The House of Lords has held that in assessing an applicant's needs for a care service under section 2 of the 1970 Act, the degree of that need and the necessity of making arrangements to meet it, a local authority must balance the severity of the applicant's disability conditions against the cost of the arrangements and the availability of resources. This is done by setting eligibility criteria: R v Gloucestershire County Council ex parte Barry [1997] AC 584, 605A-F, 610E-611C.
36. In 2002 the Secretary of State promulgated guidance in a document called Fair Access to Care Services: Guidance on Eligibility Criteria for Adult Social Care, document LAC (2002) 13. The guidance is issued under section 7 of the Local Authority and Social Services Act of 1970. Therefore a council is required to act under it. The primary aim of the guidance is to assist local authorities to achieve fair access to care services through reviewing and revising their eligibility criteria. Fair Access to Care Services requires authorities to adopt the framework according to which their local eligibility criteria are set, take into account their resources, local expectations and local costs. Needs are classified as critical, substantial, moderate, or low. Fair Access to Care Services requires authorities to review their eligibility criteria in line with their usual budget cycle, the point which arose in the Chavda case.
37. The guidance set out in Fair Access to Care Services relating to the assessment process itself emphasises the importance of a careful and sensitive factual appraisal directed at ascertaining into which band a person's needs fall. The document says that councils should recognise that individuals are the experts of their own situation and encourages a partnership approach to assessment. An assessment should be carried out in such a way and be sufficiently transparent for individuals to gain a better understanding of their situation, to identify the options available and the outcomes required for any help to be provided and to understand the basis on which decisions are made. In responding to an individual's account of his presenting needs professionals should explore the intensity of particular needs, the number of different needs faced by individuals, how needs interact and how individuals react to the difficulties facing them. The relevance of a special personal characteristic informs the authority's factual assessment of the individual's presenting needs and the type and intensity of any care provided.
38. In common with most other authorities Birmingham Council's current eligibility criteria are that needs must be substantial or critical to be eligible. In other words, the council's policy is to meet all needs so classified but not to meet needs assessed as falling within the moderate or low bands.

The claimant's case

39. For the claimant Mr Armstrong contended that once the council's decision on his toileting needs was put through a DAA filter it could not be supported. He invoked legal support for this submission from the discrimination provision in section 21B of the DDA. Primarily, however, he grounded the claim on its failure to comply with section 49A of the DDA. In particular, the council's duty to have due regard to the need to promote equality of opportunity, to take account of a disabled person's disabilities and to promote positive attitudes towards disabled persons. The council has its disability equality strategy which, he pointed out, has as a key priority equality of opportunity in education. There are also obligations imposed on it by the statutory code of practice.
40. Dealing with the decision Mr Armstrong submitted that it was a clear community care assessment decision. There was no reference to the DDA. The references to critical and substantial risks were references to an assessment pursuant to the Fair Access to Care Services eligibility criteria. It was clear from a letter written to the court serving the December 11 decision that the council believed it was confined to its community care obligation:

"The defendant can only meet, in accordance with its eligibility criteria, those needs that pose a 'critical' or 'substantial' risk to someone's well-being."

In his submission there was no evidence that the council had any additional thought processes, as demanded by section 49A, additional to a traditional community care analysis.

41. In his powerful arguments Mr Armstrong contended that this decision simply did not have due regard to relevant matters as section 49A of the DDA required. There was no evidence that the legal duties and their implications had been drawn to the attention of the decision maker. Among the relevant considerations was first, the importance of enabling disabled people to access education. That was specifically identified in the Department of Work and Pensions consultation document promoting equality of opportunity in education and had been translated into Birmingham's disability equality scheme. Secondly, Mr Armstrong said that enabling the disabled to be more involved in decision making by public authorities was a key aspect of the 2005 changes. It was underlined in the code and it was a point which Birmingham's own disability equality scheme recognised.
42. Choice was a third feature of the section 49A regime. As a source for that Mr Armstrong drew, in particular, on the statutory code. Paragraph 2.7 referred to earlier gives the example of enabling disabled person to get up and go to bed just as non-disabled people do. In his submission that approach was equally applicable to toileting. Why, he asked rhetorically, should the claimant have to "hold in" when the non-disabled do not. Alternatively, the claimant is being asked to use incontinence pads, and perhaps in a soiled manner, with a group of other students he was trying to fit in with.
43. Finally, Mr Armstrong referred to the dignity of disabled people. That was a thread, he contended, running through the policy documents. He bolstered his case by reference to the United Nation Convention on the rights of persons with disabilities. That convention has been signed but not ratified by the United Kingdom. Nonetheless, Mr Armstrong contended that the mention of dignity of disabled persons in that Convention was in many ways simply a reflection of United Kingdom policy. In sum, Birmingham's decision did not advance educational opportunity, did not involve the disabled claimant in the making of a decision affecting him, did not promote choice on his part and certainly did not respect his dignity in this a most intimate aspect of his living.
44. In a specific critique of the decision, Mr Armstrong said that once it was seen through a DDA lens there was a real prospect of a different answer. Until the occupational therapist's report in November no one had disputed that appropriate toileting equipment would be required at the university. There had been discussions to that effect, as I have described. Even as late as 28 October nothing was said to cast doubt on that assumption. The decision of 11 December represented a late turn about. Moreover, Mr Armstrong pointed out that the occupational therapist had not asked the claimant about his toileting requirements, nor about what he thought about confining his toileting to evenings only. Nor did she ask about his experiences at college. (In his second statement the claimant has now expressed his concerns about these matters and has explained his experiences at college.) Finally, Mr Armstrong was critical of the conversion process of the occupational therapist's report that there should be no need for toileting for the claimant during the day to a risk assessment by the operations manager in her 11 December decision.

The council's decision and the DDA filter

45. Although Mr Armstrong invoked section 21B of the DDA, his submissions focused on the general duty under 49A. That is understandable, because in my view, putting to one side whether the Administrative Court is an appropriate forum for a section 21 claim, there are insuperable difficulties in the claimantclaimant establishing that there has been discrimination as defined in section 21D. In as much as the claimant relies on any alleged failure of a duty to make adjustments, he has not proved that the failure resulted in it becoming impossible or unreasonably difficult for him to receive any benefit conferred by the carrying out of a council function. The relevant council function in this case was that of assessing needs for care services. The plain fact is that the claimant received a community care assessment as to his needs as a result of the decisions, in particular the decision of 11 December 2008. Any discriminatory treatment or any failure to make a reasonable adjustment under section 21B is always justified if the acts of the public authority concerned are a proportionate means of achieving a legitimate aim. In my judgment, the application by the council of its eligibility criteria was a proportionate means of achieving a legitimate aim, namely the equitable allocation of limited care resources.
46. Turning to section 49A, the claim was advanced in various ways, but basically it was that the council failed to have due regard to the need to promote equality of opportunity. In essence the claimant says that the assessment was wrong by failing to ensure suitable arrangements for toileting at university irrespective of the council's assessment of the low risk of the claimant having to utilise them.
47. When carrying out its functions, by virtue of section 49A the council has to have due regard to the need to promote equality of opportunity between disabled persons and other persons and to achieve the other goals set out there. In other words, the issue becomes whether the council has in the discharge of community care functions in substance incorporated the thought processes required by section 49A. In my judgment it has. The assessment took into account the importance of the claimant's choice to attend university. It accepted that the claimant had a critical need for services to assist him to attend university and it reassessed the extent of his needs for assistance to do that. As I have described, it increased the care services to be provided to him above what had been decided in the 9 September assessment. It will be recalled that the council concluded that it was necessary to meet the claimant's needs by providing him with five and a half hours escorted travel and 40 hours of personal care. The assessment took into account that the claimant was a disabled person who did not have the same opportunities or facility to attend university as persons without disabilities. In assessing the claimant's disability, it took into account the need to spend money to provide him with services which the council would not spend in relation to an able bodied person. It paid due regard to the fact that there was no toileting suitable for him at the university and explored the possibility that he might require special assistance in that regard. In assessing that risk, however, it concluded that it was low or very low and that relevant alternative measures were available.
48. In his careful and considered submissions for the council Mr Knafler made clear that if the claimant was assessed as having substantial or critical needs for toileting at the university additional care services to meet that need would be made. Of course, the assessment took into account relevant countervailing factors. In the council's view reasonable alternative measures were available to guard against the low risk for the need for toileting while at university. A court is in no position to second guess such a conclusion. In my judgment the council undertook the detail of the thought processes required by the DDA as interpreted by the authorities. It consulted the claimant although, following the permission hearing, the claimant says that he was not asked in full about his needs. Overall the council did pay due regard to the need to promote equality of opportunity in education and the other obligations owed to disabled persons under section 49A.
49. Mr Knafler invited me to express wider views about the compatibility of assessments under the Fair Access to Care Standards with the DDA. In his submission, an assessment of an individual's presenting needs in substantial compliance with the requirements of that document would always result in a local authority having due regard to the needs identified in section 49A of the 1995 Act. In particular, he took me to the aspects of the document outlined earlier which identified the need to consult with persons and to have their presenting needs at the forefront of any decision making. I am reluctant to go down that particular track, not least because it has not been possible to inform me whether or not the 2002 Fair Access to Care Services document has been reviewed in the light of the DDA.

Conclusion

50. This has not been an easy case. On one view the council's decision is harsh. One cannot but admire the determination of the claimant to undertake a difficult university course in science despite the obstacles he faces. Evaluating Birmingham's decision would have been facilitated if I could have been assured that the basis on which it was made, the Department of Health's Fair Access to Care Services guidance, had been put through a DDA filter. It would also have assisted me if there had been some reference to the general duty under the DDA having been addressed in the decision itself. However, form takes a back seat to substance in these matters. Notwithstanding these drawbacks to the decision, I have not been persuaded that the decision is flawed. For the reasons I have given in the judgment my view is that the council has paid due regard to the needs set out in section 49A of the DDA. At a personal level I am comforted by the fact that in the light of the report of the claimant's occupational therapist and his second statement Mr Knafler has assured me that the council will revisit its assessment. I dismiss the claim.
51. MR ARMSTRONG: My Lord, some matters to deal with. I will deal with the short ones first. I remind my Lord that your Lordship said that this would be referred to as AM v The Council.
52. Secondly, Mr Squires has asked me to remind you that the order that you signed on Friday, the consent order with the university and the claimant, converts the university back into a mere interested party, so I am asked to flag that so the university is described in that way in the judgment.
53. Thirdly, I have received -- the usual legal aid assessment because I am publicly funded. My Lord, I do seek permission to appeal. The reason I do that because, although I take regard to what your Lordship has said at the end of the judgment, my submission is, and I put this -- I won't address you specifically on the prospect of success because my Lord has formed his own view on that in relation to compelling reason. The concern would be that there would be aspects in your judgment that will be taken away and used to mean that community care assessments need not go through an additional DDA filter, or be seen to go through one. In my view that is a lawful reason and I say that is an important issue and one for the Court of Appeal.
54. MR JUSTICE CRANSTON: Mr Knafler.
55. MR KNAFLER: Very briefly. Your Lordship's decision focuses very much on the facts of this particular case and eschews a wider examination of the relationship between the DDA and community care duties. In relation to that the facts of the case are also due to be revisited by the local authority. It is, of course, conceivable that the Court of Appeal might be interested in this case because -- potentially because of the wider issues.
56. MR JUSTICE CRANSTON: Notwithstanding that it is an important issue, I think you need to go to the Court of Appeal yourself.
57. MR KNAFLER: My Lord, I am sorry, I am instructed to make an application for the usual costs order where a claimant is publicly represented simply to protect the council in case there are further proceedings and there is a costs order that goes the other way.
58. MR ARMSTRONG: I can't resist that under section 11.
59. MR JUSTICE CRANSTON: Thank you both for the way in which the case was presented. It was very helpful.