England and Wales High Court (Administrative Court) Decisions

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

		Sitting at: Manchester Civil Justice Centre 1 Bridge Street West Manchester M60 9DJ
		22nd October 2012

HHJ Judge Pelling QC:

Introduction

1. This is the substantive hearing of a claim by the claimant for a declaration that a decision of the defendant contained in a letter dated 27^th March 2012 ("the Decision Letter") was unlawful and/or for an Order quashing that decision.
2. The claimant is profoundly disabled. She lives in a supported living property within the area for which the defendant has responsibility. Contractors engaged by the defendant provide supported living services within such properties. Currently a contractor called Creative Support provides those services. That contract is due to terminate shortly and it is necessary, therefore, for a public procurement exercise to be carried out by the defendant to identify and appoint new contractors. That exercise must comply with Regulation 4 of the Public Contract Regulations 2006. Those regulations bring into domestic law the requirements of the Procurement Directive of the EU. It requires that all bidders and potential bidders are treated in a manner that is equal, non-discriminatory and transparent.
3. Previously the defendant has included service users or family carers on the evaluation panels that select successful bidders. The defendant has decided, however, that for the current and future procurement exercises this practice would not be followed. That decision was arrived at following a consultation exercise and was communicated to those interested by the decision letter. The decision, as set out in that letter, was to the following effect:

"The decision we have arrived at taken by myself in conjunction with and on the advice of Ian Hughes (Head of Democratic and Partnership Services, and the Council's Chief Legal Officer), is that we will now implement the proposal not to involve service users and carers in the evaluation process. I know many people will be disappointed by this decision --but we have given careful consideration to both the legal advice we have received and the points raised through the consultation."

4. The decision letter refers to what is described as "non-statutory guidance and local policy" that makes reference to service user and carer involvement in the evaluation process, to the practice of other local authorities akin to that previously adopted by the defendant and the view expressed in the course of the consultation that the removal of carers and users from the evaluation panels ran contrary to the policy of giving users and their relatives more choice and control over the services they receive. The decision letter then referred to the defendant's understanding that there was a:

"...tension that exists between national and local policy around choice and control in social care services and the requirements of EU and national statute regulations around the procurement of public services."

The defendant justified this analysis in the decision letter in these terms:

"We have been asked what it is in the procurement statutes and regulations that have led us to the view that there is a tension that exists between them and the involvement of service users and carers in the evaluation process. This is a somewhat complex legal arena, and we are mindful that it is not our role to provide legal advice to members of the public. However, in essence the position is that regulation 4 of the Public Contracts Regulations 2006 (PCR) apply to this Council when it is undertaking procurement exercises. Regulation 4 requires this Council to act towards bidders in an equal, non discriminatory and transparent manner and the Council has taken the view that to involve service users and their families on evaluation panels would allow them to select their own provider, would cause this Council to be in breach of such regulation, the PCR generally and the Council's own Contract Procedure Rules. Any successful challenge by an aggrieved bidder would lead to the abandonment of any procurement exercise the Council has commenced."

Thus the defendant expresses as the basis of its decision the view that, whatever the circumstances, to involve service users and their families in the evaluation process would be a breach of regulation 4. The claimant relies on this paragraph of the decision letter and maintains that it is simply wrong in law and that the decision ought to be quashed on that basis alone.

5. Ms Richards QC on behalf of the defendant accepted in response to a question from me in the course of the argument that if that had in truth been the basis of the decision then that would be a ground for quashing the decision. However, the defendant maintains that, on proper analysis, that was not the basis of the decision. Ms Richards submits that, on proper analysis, the basis of the decision was, as she put it in her skeleton at paragraph 16:

"The council considers that these objectives are best promoted by having professional evaluation panels that comprise council officers from a variety of disciplines (commissioning contracts and community learning disability team) but which do not include service users or their family members. This is a judgement which is plainly within the range of permissible rational conclusions for a local authority to reach. The council considers that if service users or family members, (participants) sit on evaluation panels there is a risk that the participants will bring their subjective views and experience about bidders (positive or negative) into the process which would in turn skew the results of the tendering process, and that the presence of participants on the evaluation panels would create an unnecessary and avoidable risk of bias, unfairness and/or lack of transparency."

In support of that analysis, she relies on two paragraphs of the decision letter that followed the paragraph relied on by the claimant cited above. Those paragraphs are to the following effect:

"In the light of this, we believe that there is a danger that the involvement of service users or carers in the evaluation process would mean that any procurement decision made under such a process could be challenged in the courts and overturned, and the process would have to be re-run, without such involvement. The Council would then be forced to re-run the procurement exercise at further time and expense, which could have been better spent in providing valuable services to our residents. We also feel that 'to somehow involve people in the process and take account of their views' (as one person said) would not address the issue, as either those views are taken into account in the evaluation (thereby opening up the danger identified above) or they are not taken into account, in which case the process would have little meaning.

The question of impartiality does link strongly to the second concern raised in the consultation -- that the procurement process in itself is flawed in that it raises the risk of changing providers with whom people are satisfied and potentially replacing them with other providers who prove to be less satisfactory. Indeed, some people asked about how we assess the risk arising from a change in provider and it has been suggested that to win a contract a new provider should have to prove that they would be significantly better than the current provider to take over from them. Under the procurement regulations, of course, such an approach would not be deemed as impartial as all providers have to be given an equal opportunity to win the contract, and could challenge the decision if they were not."

6. Ms Richards submits that a proper analysis of the letter, taken as a whole and in its context, shows the true basis of the decision to be as described by her in the paragraph of her skeleton submissions set out above. In any event, the result of the decision challenged was as described in paragraphs 1 to 3 on pages 3 to 4 of the decision letter, namely:

"1. To rescind the Tendering Procedure (2006) and any other existing directorate procedure which allows the involvement of service users, their families or carers in evaluation panels or which gives them a voice and provide a voice in provider selection following tender exercise.

To establish new procedures and arrangements for all tendering that will set out how we will involve service users and carers in drawing up the specifications for services, and the composition and operation of evaluation panels.

Pending completion of these new procedures to act in accordance with legal advice we have received not to involve service users and carers in the evaluation process."

The Grounds

7. Aside from the point to which I have referred already the claimant challenges the decision on four other grounds, namely that

a. In arriving at the decision the defendant failed to have regard to the government policy of giving users and their carers more control and choice over the services they receive. This issue does not arise if the claimant is correct in her submission that the decision was based on an error of law for the reasons I have already given;

b. The decision defeats the legitimate expectations of the claimant and her family that her familial carers will be involved in choosing the service provider;

c. In arriving at the decision the defendant has failed to discharge the public sector equality duty contained in section 149 of the Equality Act 2010; and

d. Even if the new policy was one that is otherwise not challengeable, its operation amounts to an unlawful fetter on discretion to the extent that excluded the claimant's familial carers from involvement in the evaluation process.

Of these grounds, ground (b) can only arise if the technical challenge or the challenge summarised in (a) above fails. Thus I can postpone consideration of it until after I have considered those challenges. The challenge in (c) arises only if those referred to in (a) and (b) fail and thus I can postpone consideration of it until after I have addressed those challenges.

8. Aside from the defendant's response to the regulation 4 point, its response to the other points I have mentioned in essence is that on proper analysis the guidance does not impact upon procurement as a procedure but upon the nature and scope of the services offered and how they are selected for a particular user. In relation to the claimant's reliance on legitimate expectation, it was submitted that this ground is without merit in the circumstances because there is no legitimate expectation that policies will never be changed, and in any event there is no evidence of detrimental reliance by the claimant or her family on the existence of the previous policy. The defendant maintains that it has complied with the PSED, by amongst other things consulting thoroughly, using a process that has not been challenged and also by carrying out an Equality Impact Assessment. In relation to the fettering of discretion, the defendant submits that an exception could not be justified in the circumstances of this case because:

a. There would be a risk of bias or lack of objective evaluation;

b. Training would be required that would place a significant or unjustified burden on the defendant; and

c. It would not be fair to grant an exception to one family but not to others.

In the result it was submitted that considering the inclusion of familial carers on a case-by-case basis was unrealistic and would have a detrimental effect on council resources.

The Effect of Regulation 4

9. A great deal of time was taken up in exploring in great detail the previous procurement history that has applied to the provision of services at the property where the claimant lives. Much of that is immaterial to the issues I have to decide. However, the following background facts are at least potentially relevant.
10. First, as I have said, the claimant is profoundly disabled. She is a long-term resident at the property at which she lives and is supported in all her everyday support and supervision means by the support of a live-in service provider at that property. Secondly, the claimant is not the only resident at the property. There are a total of three residents of which the claimant is one. Thirdly, the claimant is one of about 200 users of supported living services in the defendant's area. They are accommodated in 38 different properties across the area, of which that in which the claimant lives is one. The total cost annually to the defendant of the provision of such services is about £22 million. The cost of the provision of services at the property at which the claimant lives is each year in the region of about £260,000.
11. It is intended that the contractual process by which a new contractor will be identified will involve, first of all, the letting of a framework contract by which a number of different service providers will be admitted to what in effect will be a panel of service providers, and then a secondary procurement exercise will be carried out to select service providers either for groups of properties or, in some cases, a single property. It is intended that the property at which the claimant lives will be the subject of a single secondary procurement exercise. The issue that arises in this case concerns the second-stage letting process applicable to the claimant's property. It does not apply to the framework stage.
12. Finally, by way of background it is to be noted that, whilst the tendering process may result in a change of service provider, it will not involve a reduction in the services provided and is unlikely to result in staff changes given the effect of the Transfer of Undertakings (Protection of Employment) Regulations 2006.
13. I was not shown any relevant authorities concerning the effect of regulation 4 of the 2006 regulations. However, its terms and effect are well known. Regulation 4(3) of the 2006 regulations provides:

"(3) A contracting authority shall (in accordance with Article 2 of the Public Sector Directive)—

(a) treat economic operators equally and in a non-discriminatory way; and

(b) act in a transparent way."

There is no dispute that the defendant is a "contracting authority" for the purpose of the regulation. The purpose of the regulation is to ensure that tenderers are in a position of equality both when they formulate their tenders and when the relevant contracting authority assesses the tenders. It follows that for a tender process to be compliant the award criteria must have been identified at the start of the process and be applied objectively and uniformly to all tenderers. However, there is nothing in either the regulation, the European jurisprudence decided by reference to the relevant directive, or domestic case law, that suggests that to include users or carers in the evaluation of tenders of itself constitutes a breach of the regulations. The defendant does not suggest otherwise. It does not follow, either, that to include such persons on an evaluation panel would result inevitably in the award criteria not having been applied objectively or uniformly. Again, the defendant does not suggest the contrary.

14. It is common ground between the parties, therefore, that there is nothing in the regulation itself or in either the European jurisprudence or domestic case law that is capable of supporting the proposition contained in the paragraph of the decision letter relied upon by the claimant that to allow service users or their families to participate as members of evaluation panels would of itself constitute a breach of Regulation 4 of the 2006 Regulations. This led Ms Richards QC to accept, in the course of her oral submissions, that at any rate if that paragraph were to be read in isolation then, as she put it, it puts the point "too high". Her submission was, however, that if the letter was read as a whole and in context as a decision letter prepared by an administrator rather than as a judgment or legal opinion, then it is entirely clear that the real point was that identified by Ms Richards in her skeleton submissions in the passage that I have set out earlier.
15. I accept that the decision letter must be read as a whole and with all due allowance being given for the fact that it is written by a local authority officer rather as a judgement or legal opinion. The real issue is, however, whether, so read, the letter suggests that an error of law has been made. In my judgment, the letter when read in this way does not clearly have the meaning for which Ms Richards contends. My reasons for reaching that conclusion are as follows.
16. First, as was accepted by Ms Richards, the paragraph on which the claimant relies cannot be justified as a correct statement of principle for the reasons I have identified already. To include users or their familial carers is not a breach of the regulation, as the paragraph suggests, nor is it the case that a breach can be inferred from the mere presence of such persons on an evaluation panel.
17. Secondly, the paragraphs of the decision letter on which Ms Richards relies do not support her submission. The first sentence of the paragraph commencing "in the light of this … " quoted in full above, does not refer to a risk that the inclusion of such persons might result in a breach of the regulation because such persons might not apply the eligibility criteria objectively or uniformly. It suggests that the very presence of such persons would create a risk of challenge. That is consistent with the paragraph relied upon by the claimant in that it suggests that an arguable challenge could be mounted to an evaluation exercise by reference to the presence of users or their carers on an evaluation panel. The final sentence of that paragraph betrays the same misunderstanding because it suggests that to take account of the views of such persons would itself create the risk of a challenge. That is simply not correct. The final paragraph relied upon by Ms Richards suggests that some people might approach the process with an unacceptable predisposition to one candidate. To adopt such an approach would be wrong but does not take the point I am now considering any further.
18. However, Ms Richards submits that this is an artificial construct because, if the letter is read in the context of the earlier communications passing to users of the claimant's property in general and during the consultation process in particular, then the position of the council becomes entirely clear.
19. In order to consider that issue it is necessary to track through a number of emails, letters and other documents in order to test the proposition. The relevant material starts with an email from Mr Lacey, a family member of another resident at the property where the claimant lives, who sought clarification on procedural changes that he understood were to be introduced concerning procurement. After a number of administrative hiccups that it is not necessary to dwell on, Mr Mellor, who was by now the defendant's relevant official leading the process, responded by an email of 30 March 2011. It attached a letter that should have been but was apparently not sent to Mr Lacey at an earlier date. Insofar as is material the letter said this:

"The council has reviewed and revised its procurement procedures and these are now more stringent about what approach can be taken. Also we are being advised by procurement and legal colleagues that people can only be involved in the evaluation of bids if they have undergone the necessary training and are deemed to be fully competent in the procurement practice. This seems to be impractical in the context of involving service users and families in the procurement process for supported living schemes. Clearly we would prefer to maintain our precious practice of involving service users and families and we are in discussion to see if we can find a way through this issue that meets both the legal procurement requirements and allows for proper involvement."

The covering email said this:

"It is clear that we cannot involve residents in the actual decision making. That would leave us wide open to legal challenge from any unsuccessful bidder. However those people who do make the decision can take into account the views and opinions of service users and carers as part of the decision making."

The email suggests to me two things. First, it suggests clearly that Mr Mellor was operating in the belief that the mere fact of involvement of users or their familial carers in the decision-making process would create a breach or probable breach sufficient to justify a challenge. Secondly, and somewhat oddly, it suggests that panel members could or would rely upon information made available to them by or on behalf of users and carers that did not form part of the objective evaluation criteria. On any view, the email suggests that to include residents and their families in the evaluation process would expose the defendant without more to the risk of legal challenge. This is consistent with the reasoning in the decision letter and in particular in the paragraph of the decision letter relied upon by the claimant.

20. On 9 August 2011 a meeting took place attended by Mr Mellor and Mr Lacey who, as I have said, was a family carer for one of the other residents at the property where the claimant lives. Mr Lacey prepared notes, which Mr Mellor confirmed as accurate by an email dated 12 August 2011. The note includes a summary paragraph which attributed to Mr Mellor views to the following effect:

"MM is genuinely open to suggestions which would give more involvement to tenants / supporters in the selection process. He is receiving legal advice which tells him that this is not possible and he cannot ignore that advice."

This is consistent too with the paragraph of the decision letter relied upon by the claimant.

21. On 26 January 2012 Mr Mellor wrote to each tenant, their families and carers, notifying them of the proposed change in the procurement process in the following terms:

"The proposed change for the Tendering Procedure is that the panel will solely comprise of experienced officers employed by the Council. For the avoidance of doubt service users, family members and carers will not be permitted to carry out the evaluation of tenders or choose their support provider. Service users and their families will continue to be fully involved in the design of specifications for the services being provided at their house."

The reasons given for this change were three in number, which included, at paragraph C, the following:

"The requirements of the public contracts regulation 2006 which govern the way which local authorities procure goods and services"

22. The defendant as part of the consultation process prepared a written response to some objections raised by or on behalf of users. The document concerned is dated 16 March 2012. The defendant relies on response 7 because it refers in terms to the need to balance the issue of choice and control:

"…against any legal risk that the council will face…"

This document must be read as a whole. The most that can be said of this answer by the Defendant is that when read in isolation it does not make clear whether what is being referred is a risk that breach might occur as a result of including users or familial carers on an evaluation panel or to a risk of a legal challenge. This response has to be read with the response to point 12, which repeats what is set out in the letter of 26 January 2012, the material part of which is set out above, and the response to point 13, which suggests the conclusion that users and / or familial carers should be excluded is based upon either European jurisprudence or domestic case law. Critically, the response that is relied upon by the defendant must be read in context with the response to point 16. Point 16 was as follows:

"Indeed, as we understand it, the council's officers and members fully accept the value of this input. In his email to Mr Mark Lacey the father of one of our daughter's joint residents Mr Nick Mellor said the council 'would prefer to maintain our previous practice of involving service users and families…'" Councillor Metcalfe said in a letter to Mr Lacey dated 17 October 2011 that "It remains our view that service users and carers should be involved as much as possible."

The Response was as follows:

"The council does understand the points being made by many Consultees and this is reflected in the letters written previously by Mr Mellors and Councillor Metcalfe and we hope in throughout the consultation period in this consultation document. We do not regard being aware of the merits of alternative points of view as a weakness. The Council will continue to involve Consultees as much as possible in the development of the service - indeed, see the responses above. The only proposed difference is that Consultees will not be allowed to sit on evaluation panels or to choose their provider. This is based on legal advice that to allow this practice to continue would be a breach of procurement law." [emphasis supplied]

23. The point 16 answer in particular, if it is to be treated as consistent with the response to point 7 set out above, must, I think, mean that the view of the defendant was that to permit the presence of users and their carers on evaluation panels to continue would be a breach of procurement law, and thus the risk referred to in the response at point 7 must be a risk that a disappointed tenderer would challenge the process if such persons had been included on an evaluation panel.
24. The defendant placed reliance on the response to issue 12. However, the use of the word "risk" was that of an objector in the context of the point to which the response of the council was set out. The use of the word "risk" was not adopted by the defendant in that response, whose only response was to repeat what was set out in the letter of 26 January 2012.
25. The defendant's also rely on the response to paragraph 24, which refers to an objection based on the guidance relied on by the claimant in these proceedings contained in "Putting People First: A Whole System Approach to Eligibility for Social Care." The response from the defendant to the point there made was as follows:

"We are aware of this guidance and we are committed to service user choice and control wherever this is possible. However, our interpretation of the PCR leads us to believe that there is a danger that involving service users and carers on evaluation panels and allowing them to select their own provider would be in breach of the PCR and the council's own CPR and therefore open to challenge. As a council, we have treated all these issues very seriously."

In my judgment this paragraph, particularly when read with the others that I have already referred to, does not on any view clearly establish as the reason for the decision that which Ms Richards refers to in her skeleton submissions in the paragraph set out earlier in this judgment. The risk identified in this paragraph is that a challenge by reason of the mere inclusion without more of a user or familial carer on the evaluation panel. However, the mere inclusion of such persons on an evaluation panel is not even arguably a breach of the regulation. On proper analysis, therefore, the answer does not assist the defendant. It does not clearly establish that the defendant was proceeding in the manner now contended for, which is that if such persons are included that may make decisions based on extraneous or irrelevant material a possible or likely occurrence, thereby causing a breach of regulation 4. That is, in my judgment, a very different concern from that identified both in the decision letter and in the various responses set out above.

26. The latter concern can be more readily be addressed, or might be addressed, by various ameliorating or mitigatory steps. The former, in reality, cannot be so addressed. That is an important consideration in a case such as this. The decision to remove carers from the evaluation process is consistent with a view that to include such persons would involve a breach of the law and therefore create a risk of challenge. Had the risk that was identified been that such a person might be predisposed, one way or the other, in favour of or against an incumbent provider, then that would have led to a consideration of whether that risk could be managed by steps other than the exclusion of carers from valuation panels such as the selection of appropriate carer representatives and/or on the balance on any given panel between professional and carer representatives.
27. In my judgment, a straightforward reading of the decision letter suggests that the defendant has proceeded on an erroneous understanding of the law, namely that the inclusion without more of users or their carers on an evaluation panel would breach regulation 4, or risk being a breach of regulation 4. In those circumstances Mr Wolf submitted that what he called the defendant's attempt to "re-categorise the decision taken" was "entirely impermissible", and the decision ought to be quashed applying the principles set out in paragraph 10 of the judgment in Smith v North East Derbyshire PCT [2006] EWCA Civ 1291. I agree with that submission because, for the reasons I have set out above, the defendant cannot demonstrate the decision that had been taken would inevitably have been the same if taken without the error of law to which I have referred having been made.
28. This led Mr Wolf to speculate whether the defendant was seeking to assert that a new decision had been taken in which the outcome was the same but the reasoning was now that summarised by Ms Richards in the paragraph of her skeleton submission as set out above.
29. In relation to this issue Ms Richards submitted first that the defendant had not altered its position or changed its decision for the reasons that I have considered and rejected. Her secondary submission, however, was that if there had been such a change then it occurred no later than the date when the defendant's summary grounds of resistance were served. On that basis, if the decision was a new one it was one which the defendant was entitled to take and was one that involved an assessment of risk that familial carers and /or users would in fact allow themselves to be influenced by extraneous matters and thereby a risk of a challenge was created, and that, because this was a risk-based assessment, it was one capable of being challenged only on rationality grounds. Since that was not relied upon as a ground of challenge, there could in reality be no challenge to the new decision. Mr Wolf maintained this was an entirely wrong approach relying on the principle identified by the Court of Appeal in Carlton-Conway v Harrow LBC [2002] EWCA Civ 927; that is, that in such circumstances the claimant was entitled to a fresh consideration of the issue. Ms Richards submitted that this was incorrect, relying on the decision of the Court of Appeal in R v SSHD ex parte Turgut [2001] 1 All ER 719.
30. In my judgment, Turgut is clearly distinguishable on its facts and does not provide the answer for which Ms Richards contends. The statement of principle on which Ms Richards relied is contained in the judgment of Schiemann LJ at pages 735 to 736 and is in these terms:

"The application for permission to apply for judicial review will come first to the High Court and, if refused, may then be renewed before the Court of Appeal. The approach of each of these courts to the reception of evidence on such an application will be the same. What quite often happens is, that although the application for permission is in theory ex parte, the Secretary of State asks permission to put before the court evidence seeking to explain and justify his original decision. Such permission is frequently given. Sometimes the Secretary of State will seek permission to adduce evidence to the effect that he has considered the evidence filed by the applicant and that he has made a new, second, decision in the light of that evidence. Where that new decision is in favour of the applicant the case is usually disposed of by consent. Where, however, the second decision is to the same effect as the first decision and the applicant challenges the legality of the second decision, the question then arises as to what is the proper approach of the court. Further litigation on the first decision will generally be pointless. In general it will be convenient to substitute the second decision for the first decision as being the decision challenged in the proceedings. The applicant may apply for permission to amend his application for permission so as to substitute the new decision and generally the court will grant such an application."

As to this, first, there was no application to amend so as to challenge the supposedly new decision. Secondly, I would not consider it convenient to adopt the course suggested in the particular circumstances of this case. I say that because the decision-making that will have to be undertaken is, at least potentially, more fundamental than simply seeking to substitute new reasons for old. The error of law that I have concluded was made was that it would either be a breach of procurement law to include carers or users on a bid evaluation panel or there was a risk that to include such persons would constitute a breach. As I have explained already, there are no ameliorating or mitigatory steps available that could meet that risk. However, if the decision was taken in order to avoid the risk that such persons, if included, would take account of extraneous matters then an entirely different decision-making process is involved. At that stage consideration would have to be given as to the effect of the relevant guidance, the outcome of the equality impact assessment might be entirely different, and careful consideration would have to be given to the likelihood of the risk eventuating from the degree to which the risk could be managed by steps falling short of systemic exclusion from evaluation panels of users and their familial carers – people who, on any view, have a substantial interest in the outcome of such competitions.

31. That process has not been undertaken other than under the apparent influence of the error of law to which I have referred. Thus it is, as I see it, more fair, just and convenient, at any rate in the circumstances of this case, to address in these proceedings the decision actually challenged, leaving any challenge to a new decision to take place in new proceedings if and when a new decision is formally taken.
32. Ms Richards also drew my attention to paragraph 18 of Appeal decision in E v SSHD [2004] EWCA Civ 49. That case was concerned with the circumstances in which new evidence might be admitted to demonstrate a mistake by an inferior tribunal as to relevant facts. It does not assist with the issue that I am now considering, at any rate directly, save to emphasise that the decision in Turgut was contextually driven – see paragraph 77 of the Judgment.
33. Ms Richards also drew my attention to the judgment of the Court of Appeal in R (O) v The LB of Hammersmith [2011] EWCA Civ 925. In that case the judicial review proceedings were concerned with the decision referred to in the judgment as the "March decision". The claim for judicial review failed at first instance and there was an appeal. However, in the interim the local authority took a new decision, referred to in the judgments as the "May decision". The parents, who were the claimants in that case, considered the May decision to be challengeable, and, as Black LJ observed at paragraph 15:

"The conventional course at this stage would have been for O to commence fresh judicial review proceedings"

That course was not taken however, and the Court of Appeal was asked to decide the issues arising in relation to the May decision. It decided, exceptionally, that it had jurisdiction to do so and would. It is worthwhile noting, however, what Black LJ observed when arriving at this conclusion:

"I recognise that judicial review claims can be something of a moving target and that it is not uncommon that, between the issue of proceedings and the hearing, the first decision is succeeded by a new decision (maybe even a succession of new decisions) in an attempt to remedy flaws in the first one. Our attention was invited to what Munby J (as he then was) said in R (on the application of P) v Essex County Council and Basildon County Council [2004] EWHC 2027 (Admin) about the Administrative Court's approach in such circumstances. Although that court may take the pragmatic view that it will adjudicate upon the real dispute between the parties without requiring distinct and separate applications for judicial review of each decision, Munby J stressed that the proper applications to amend have to be made and the pleadings put in order so that everyone knows in advance the nature of the case being made. I would endorse that and add that it may be that appellate proceedings in the Court of Appeal are perhaps less amenable to this pragmatic approach than are first instance proceedings for judicial review."

The real point here however is this: whether to permit an argument about a new decision in existing proceedings is essentially discretionary and depends upon the context and the particular facts in any given case. Here I doubt whether truly there has been a fresh decision. However, even if that is wrong, in this case the new decision needs to be taken on a different basis than merely substituting one set of reasons for the reasons that are already identified. That requires an evaluation of the matters to which I have referred in the light of what is now identified as being the mischief that the decision-making is supposedly meant to counter. The new decision will require new and detailed reasons that not merely address the risk concerned but why no steps short of systemic exclusion will adequately meet it if that is the outcome. Any challenge to such a decision will depend upon the reasoning adopted.

34. In those circumstances and for those reasons I consider that the decision challenged in these proceedings must be quashed. In those circumstances there is no need for me to consider the other grounds that have been relied upon. Although there was a full argument in relation to the effect of the statutory non-statutory guidance relied on by the claimant, I do not consider it either necessary or desirable for me to say more about it at this stage and in the circumstances that are so far set out in this judgment. It is highly likely that the effect of such guidance will feature in any future decision-making, and it is for the decision maker to decide in the first instance whether the guidance is material and, if so, what weight should be given to it.
35. Likewise, I do not consider it desirable to say anything further at this stage concerning the public sector equality duty. The impact of that duty on the new decision-making will occur in a different environment from the last, where the decision-making proceeded on an erroneous understanding of the relevant law. It is not for a court of review to speculate about the impact of such a duty on fresh decision-making which has yet to take place and which must be viewed in its merits once the decision is taken and in the light of any challenge advanced concerning it. Clearly, fettering does not arise either.
36. It is, however, necessary that I say something about legitimate expectation. Given the conclusion that I have reached on the error of law issue, it is not necessary that I undertake a detailed examination of the expectation issue. As Mr Wolf accepted in the course of his submissions, the issue does not arise at all if, as I have done, I conclude that an error of law has occurred. In my judgment, however, the doctrine would not have assisted the claimant if I had concluded that there was no error of law. That is so because generally a public body will not be held bound to maintain in being a policy which on reasonable grounds it has chosen to alter - see in this regard the principles identified by Laws LJ at paragraph 41 of his judgment in R (Niazi) v SSHD [2008] EWCA Civ 755. Here, on the assumption that no error of law had been demonstrated, the decision to substitute the new policy for the old could have been challenged only on grounds other than that of legitimate expectation. Legitimate expectation would not have arisen because there was no specific undertaking to continue the previous policy either until a specific date or otherwise, and because, although not decisive, in fact the claimant has not demonstrated any detrimental reliance, nor has familial carers.
37. In the circumstances, therefore, the decision will be quashed.

Yes? Now, at the end of the hearing the debate was how best to proceed. Are you ready to deal with costs and any other bits and pieces that arise or do you want me to adjourn those?

SPEAKER: My Lord, can I have five minutes to speak to those instructed?

HHJ PELLING: Yes you can. I said I would give that at the end of the judgment. The choices are: we deal with them today, or alternatively, I think, in order to preserve, which is what was wanted, my ability to consider an application for permission if that is going to be made would involve me adjourning the process for a further hearing or perhaps with a possibility of an application on paper but by a specific date. I think those are the possibilities. Quarter past three?

SPEAKER: My Lord, thank you.

MR KARIM: … he would be seeking, I suggest that it would simply as set out in your judgment quashed (inaudible) 22 March. In respect of the costs, my instructions are that those will be dealt with by way of written submissions on the transcript of the judgment that will be provided. Varying aspects as to how long that takes.

HHJ PELLING: Well, I can give directions for that.

MR KARIM: Then consequential replies from the claimant and the (inaudible) from the defendant.

HHJ PELLING: Yes, very good.

MR MORWOOD: Yes, I think it's the oral assurance given by the defendant that the current process therefore is in effect stayed until a further decision is reached as to that tendering process. The claimant in that instance is content for this order to be quashed.

HHJ PELLING: Right, then the order will say simply the decision is quashed. So far as costs are concerned, need it be any more complicated than seven, seven and seven? Seven days, seven days and seven days?

SPEAKER: My Lord no, that's fine.

HHJ PELLING: Happy with that? Very good. Would you draft an order let me have it through the usual channels, because I have not got an administrative court clerk here today, and can you pass on to both leaders my personal thanks for the quality and kindness of their submission?