England and Wales High Court (Administrative Court) Decisions

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

		Manchester Civil Justice Centre 1 Bridge Street West Manchester Greater Manchester M60 9DJ
		27th November 2013

Hearing date: 14 November 2013

HIS HONOUR JUDGE SYCAMORE:

1. This is a rolled up hearing of an application for judicial review by which the claimants, LH and CM, each appearing by their Litigation Friends, seek to challenge the decisions of the defendant, Shropshire Council:

i) (the first claimant) to close Hartley's Day Centre in Shrewsbury, a centre for adults with a learning disability,

and

ii) (the second claimant) according to the claimants' skeleton argument, is against a wider general decision to refuse to consult the users of 16 other centres in the County that may be closed down in the future. The second claimant attends one of those centres at Church Stretton (comprising Mayfair and Oak Farm).

2. Both claimants have learning disabilities. The first claimant is 63 and her litigation friend is her sister. The second claimant is 43 and her litigation friend is her father.
3. In summary, the claimants say that the defendant has failed to lawfully consult on the closure of Hartley's Day Centre and that the failure to consult before closing other day centres is similarly unlawful.
4. I summarise the procedural history as follows:

(i) the application was lodged on 11 October 2013 in London.

(ii) on 11 October 2013 His Honour Judge Thornton QC, sitting as a Judge of the High Court, considered the application for interim relief on the papers. He directed an oral hearing and also required that a meeting take place "to discuss the claimant's situation, her revised care plan and all other relevant matters in an attempt to provide sufficient reassurance and explanation to the claimant, her litigation friend and other family members, so as to enable the judicial review proceedings to be compromised or withdrawn."

(iii) on the 15 October 2013 the oral hearing for interim relief was heard in London by His Honour Judge Keyser QC, sitting as a Judge of the High Court. The judge dismissed the first claimant's application for interim relief with costs and gave directions for the rolled up hearing, including a direction that it should be heard in Manchester.

(iv) on 23 October 2013, by a consent order, the defendant provided an undertaking in respect of Hartley's Day Centre, including an undertaking, pending the rolled up hearing, not to close the centre.

5. The matter was listed for hearing on 14 November 2013. On 5 November 2013 the claimant issued an application to add a further ground of challenge, relating to the defendant's Delegated Decision Making Protocol. I refused that application on 14 November 2013, having heard submissions from both parties.
6. The hearing proceeded on the basis of two grounds of challenge:

(i) in respect of the form of the consultation undertaken by the defendant and as to whether this was sufficient to meet the requirements of lawful consultation; and

(ii) that the defendant failed to comply with its Public Sector Equality Duty (PSED).

7. I deal first with the question of permission. In respect of the first claimant I am satisfied that there is an arguable case and I grant permission. Although the defendant resists on the basis, inter alia, that the claimant failed to act promptly, I am satisfied, given that the proceedings were issued within 3 months of the decision and the explanation given by the claimant's solicitors, particularly in relation to funding issues, that, notwithstanding what the defendant says it cannot be said that the first claimant did not act promptly.
8. As to the claim brought on behalf of the second claimant, in my judgment, the application is premature. There has not been a decision to close, nor is the defendant planning to close Church Stretton, the centre which is attended by the second claimant. The argument advanced on behalf of the second claimant in the claimants' skeleton argument, on which counsel relied at the hearing, is in very general terms. It is said it is that is of vital importance to the second claimant to establish the principle that she must be consulted before the day centre she attends is closed. The defendant explicitly denies that it must so consult. The skeleton argument goes on to say, given that there is already a judicial review on foot challenging the defendant's approach to consultation, it is appropriate for the court to consider the wider issue raised ie wider than just relating to Hartley's. It seems clear, says the claimant, from what the defendant has said there is a high likelihood of further closures and another family should not have to come back to court in the future to establish this basic point. It is said in the skeleton argument that another judicial review claim has been filed and the determination of the 2^nd claimant's claim will wholly or largely determine the other judicial review claim. It is said the defendant has shown that it is capable of acting with very great haste in the closure of facilities where it wishes to do so.
9. The defendant's evidence, taken from the statements of Stephen Chandler, the Director of Adult Services of the defendant, of the 28 October 2013 and 11 November 2013, and in particular, exhibit SC/8 to the first of those statements, is to the effect there are no plans to close Church Stretton although a different service provider may operate the service in the future, with the defendant remaining as Commissioner of Services. Should the position change and a contrary decision be made, then that would be the appropriate time for challenge. Absent any decision in respect of Church Stretton, the second claimant's challenge is premature and/or academic and permission is refused.
10. The claimants sought to argue that as their solicitors are also instructed by other service users in judicial review proceedings, the outcome of this case would be largely determinative of those other claims. I disagree. This hearing is concerned with the specific circumstances of the two claimants. I have already determined that permission is refused in respect of the second claimant and will now consider the merits of the first claimant's application in respect of which permission has been granted.
11. The essential issue between the parties is as to the extent of consultation. The defendant's consultation was concerned with the future of day services generally within the county. The claimant maintains that the consultation was taken at too high a level of generality and that it should have been extended to the inclusion of representations on the closure of specific day centres and the timing of such closures.
12. Hartley's Day Centre has now effectively closed as no users are attending although I am informed that notice period under the lease does not until a date in December 2013. The first claimant had been attending for over 11 years. Until January 2013, she attended four days a week. Since January 2013, when her care package was amended, she was, until closure, attending on Tuesdays and Wednesdays only and attending other centres on the other days. The numbers attending had reduced significantly by the time the decision was made to close it on 1 August 2013.
13. I will be considering the nature and content of the consultation. It is the case that the claimant challenges some of what is said by the defendant as to what occurred and what was said by the defendant and respondents in the course of the consultation. The claimant sought to argue that I should not adopt the approach urged upon me by the defendant that, where in judicial review proceedings, there is a conflict of fact, the court should proceed on the basis that it should not generally interfere with a public authority's assessment of the evidence or facts. Although the claimant referred to two authorities to be found in Fordham's Judicial Review Handbook sixth edition at 17.1.4 and 17.3.7, R (Gentle) v London Borough of Newham (1994) 26 HLR 466 and R Hendry v Leeds City Council (1994) 6 (Admin) LR 439, I am not persuaded that it is appropriate to depart from the established principle that where there is no reason to doubt the defendant's version of the facts, as is the case here, the proper course is to proceed on the basis that the defendant's evidence is correct.
14. As to the applicable legal framework in relation to the duty to consult, the claimant's submission was that a Wednesbury approach was inappropriate, arguing that the duties were of procedural fairness and that the defendant was wrong to say that the nature and extent of the consultation was a matter for it. In (AK) Iran v Secretary of State EWCA Civ 941, at paragraph 25 per Sedley LJ:

"I say 'right' rather than 'entitled' because what fairness requires is in principle a matter of law once the facts are established. A reviewing or appellate court is not confined to the bare rationality of the decision."

and R v MMC ex parte Stagecoach Holdings Ltd The Times 23 July 1996 QBD Collins J summarised in the Times report as follows:

"The key sentence was that in which the judge applied the Wednesbury test (referring to the judgment of Macpherson J in R v MMC ex parte Matthew Brown Plc [1987] 1 WLR 1235). His Lordship respectfully disagreed with that approach. Natural justice or fairness was a requirement that the common law through the judges grafted onto the statutory provisions which gave power to persons or bodies which could adversely affect individuals. It was for the court in any given case to decide what fairness required."

15. Conversely, says the defendant, where there is no statutory duty to consult but the public authority chooses to do so, the nature and extent of the consultation is a matter for it–and referred to R (H) v Birmingham City Council EWHC 3754 (Admin) His Honour Purle QCat paragraph 14:

"The defendant council chose to carry out public consultations in relation to the FASBC review. It was not under any obligation to do so and, subject to the limits of rationality, the extent of the consultation process was a matter for it …."

and at paragraph 23:

"The real issue in this case is whether or not the defendant council was justified in treating the consultation process which they undertook as being limited to, and I use this as shorthand, processes and accessibility to the system rather than outcomes."

and as to the applicability of the Wednesbury test (R Wainwright)) v LB of Richmond upon Thames [2001] EWCA Civ 2062, Clarke LJ at paragraph 11:

"11. They do not, however, provide a complete answer to the question which arises for decision in this case. Thus, they do not address the question what is the necessary extent of the notification or consultation required in order to discharge the duty. As McCullough J pointed out, all will depend upon the circumstances. For example, a national project with wide implications for society as a whole will require far more extensive consultation than the installation of a pedestrian and cycle crossing. Provided that the notification and consultation satisfy the principles set out above, it appears to me that council must have a comparatively wide discretion as to how the process is carried out. The council cannot be in breach of duty unless the extent of the consultation process was such as to be outside the ordinary ambit of its discretion. In short, in order to be unlawful the nature and extent of the process must be so narrow that no reasonable council, complying with the principles set out above, would have adopted it."

16. For my part that represents the correct approach which in turn has to be determined by the particular circumstances and subject matter. I agree with counsel for the defendant that the duty does not extend to consulting on what is not viable and that the burden is on the claimant to demonstrate what the decision-making approach was unfair, not for the defendant to disprove.
17. In considering whether a procedure is unfair it must be judged in the light of practical realities, see Bushell v Secretary of State for the Environment [1980] AC 75 at page 95:

"What is fair procedure is to be judged not in the light of constitutional fictions as to the relationship between the minister and the other servants of the Crown who serve in the government department of which he is the head, but in the light of the practical realities as to the way in which administrative decisions involving forming judgments based on technical considerations are reached."

18. Finally, when considering the legal framework for consultation, I remind myself that consultations in respect of changes in health or social services provisions should not be technical or legalistic. The consulting body must decide what information to provide to consultees - see R v Copsur v Dorset Health care University NHS Foundation Trust and NHS Dorset His Honour Judge Keyser QC, at paragraph 51:

"51 (1) …. the authorities on the lawful requirements of consultation do not have the effect of imposing on the decision maker a requirement to provide the consultees all of information that would be material to the decision making process.

(2) There is also a practical consideration. If the purpose of the consultation is not to turn service users into surrogate decision-makers but to obtain input from them as people liable to be effected by any changes to the provision of services, is by no means obvious the process is well served by an overly technical or legalistic approach. The nature and purpose of the consultation cannot be ignored and the judicial decisions on lawful consultation do not require that they be so ….

(8) ….The nub of the claimant's case, as advanced before me, was not that the results of the consultation had been ignored but that insufficient information had been provided to service users to enable them to engage in the process in a meaningful way. I reject that criticism. In my judgment the defendant provided sufficient information about the proposals, to enable service users to make informed responses in respect of the range and delivery of services and the effect of the proposed alterations on them and other service users."

19. The claimant's case in relation to consultation in essence is that the process which preceded the closure of Hartley's did not satisfy the requirements of lawful consultation and maintains that the duty extended to consultation in respect of a decision to close an individual centre and that as a small and limited class of persons affected by the decision, users of Hartleys had a legitimate expectation they would be consulted prior to any decision to close it. The claimant relies on evidence from a number of individuals, including users stating that they did not know or were not told that centres would close.
20. On behalf of the claimant criticism is made of the general nature of the consultation and the lack of invitation for representations on proposals to close specific centres. In particular, it is said there is no reference to this in the consultation presentation material.
21. As I have already indicated, where there is a conflict of fact in this case, I proceed on the basis that the defendant's evidence is correct.
22. The defendant's case is that the consultation was a high level and appropriate exercise on the future of day care services in its area and that the public did understand that Day Centres would close. What people were telling the council was, in terms, not to do it.
23. By way of illustration from the evidence I refer to the Power Point presentation prepared by the defendant for the meetings which took place at the Day Centres. For example, one of the questions in that presentation was:

"Can I go back to the day centre if things don't work out? Answer: this may not be possible but we will help you to find something that works better."

Also, I mention the feedback from various consultation events in 2011 and 2012 from which it is clear that the defendant was aware that people were aware of potential Day Centre closure plans and were expressing concern.

24. By way of illustration on 29 July 2011 one participant said:

"My son's independence is going to shrink without the day centres. I am happy with what we currently have. My worry is around when the day services are gone."

On 4 August 2011 another participant:

"This is a time of anxiety, especially regarding closures of day centres. Change always creates fear. The council should support people through the changes."

Another:

"The table agreed that personalisation will lead to greater choice and control for adults. People like the idea of being able to stay at home with support rather than going to a day centre (or at least to have the option)."

On 24 August 2011:

"Many were particularly complimentary about Mayfair Centre in Church Stretton. Day centres offer consistent support and reassurance to parents that a child's need are met all day."

In 25 April 2012:

"The day centre is important so that I can meet my friends. I like the routine of the day centre. What would happen if day services weren't here?"

The 30 April 2012:

"Please do not close my day centre, I need the respite as a family member and my daughter needs the interaction. The day centre is part of my son's life. He doesn't want to do other activities so I want to pay for the support he needs to be at the day centre."

The 11th May 2012:

"Is this the end of the Bradbury Centre? Don't want day centre to close. Will personalisation mean that service users have to go to day care less often and therefore the centre will have to close? Attending the day centre is important to me as it gives my wife a break from caring for me."

25. Essentially, what was being said at those meetings was the same as what is said in the claimants' witness statements. As such no new point is identified which the defendant ought to have taken into account and which would have led to a different conclusion. It would, says the defendant, have been disproportionate to consult in respect of Hartley's as contended for by the claimant and not in relation to other specific changes. In any event Hartley's was significantly underused by the time of the decision and proper arrangements had been made for all the individuals affected, including the first claimant, following individual needs assessments.
26. In my judgment the challenge under this ground must fail. First, this was about the council's consultation in respect of delivery of day centre services generally in the County, and reconfiguration. It has to be distinguished from the type of proposal which would result in the withdrawal of services entirely. It is clear from an analysis of the feedback from the various consultation events at which the defendant engaged with relevant groups that there was no misapprehension about the fact that some day centres would close and that members of the public expressed their views about those proposals, to which the defendant had regard when making its decision. The nature and scope of the consultation, a matter for the defendant, was in my judgment, appropriate against the background of both the subject matter and those affected.
27. There is no evidence to support the argument for legitimate expectation. No express representation was made by the defendant in respect of further consultation in relation to any individual centre; indeed, as is pointed out on behalf of the defendant, it is impossible to separate the interests of the users of Hartley's from all the other users of social services in the area.
28. There was no justification to involve those users in a more detailed and, necessarily, costly consultation than other users. In summary, against a background in which a need for modernisation of service provision had been identified and an extensive consultation with all users as to potential closure of day centres had been undertaken, there cannot be said to have been any legitimate expectation of further individual consultation in respect of each individual day centre as to its future. Such a consultation in any event would have been disproportionate and inappropriate. I reject the claimant's argument based on the lawfulness of the consultation.
29. I deal now with the Public Sector Equality Duty challenge. It was agreed that the defendant was under a duty to have regard to the matters set out in section 149 of the Equality Act 2010 when exercising its functions. The defendant did carry out an equality impact assessment (EIA). The claimant's case is that the EIA is inadequate and suggests that the EIA was a rear-guard action by the defendant to justify a decision already made. Both parties agreed that the decision of the Court of Appeal in R (Bracking) v Secretary of State for Work and Pensions [2013] EWCA Civ 1345 correctly defines the relevant legal framework. It is important to keep in mind that this case is concerned with the reconfiguration, not withdrawal of services within the county. Bracking was concerned with a challenge to the decision of the Secretary of State for Work and Pensions to close the Independent Living Fund. This would have led to withdrawal of that benefit. As McCombe LJ made clear in Bracking, the 2010 Act imposes a heavy burden upon public authorities in discharging the PSED and in ensuring that there is evidence available, if necessary, to demonstrate the discharge.
30. The equality impact needs assessment (EINA) was completed by the defendant on 24 July 2013. The decision was made on 1st August 2013. In considering this aspect of the challenge I have considered the requirements set out in the documented process, namely a two-stage process which involves, first, an initial assessment and preliminary consultation. The documentation explains that in relation to the various protected characteristic groups, which includes disability and age, if there is either a Significant (High) negative impact or a Significant (High) positive impact in respect of any of the protected groups than a full ENIA is required. If the impact is medium or low then only a Part 1 initial assessment is required.
31. In this case the impact was found to be low in most categories but medium in the following:

"Disability Medium. The existing in-house day services support adults with learning disabilities who will be supported to access alternative means of support using personal budgets.

Age. Medium. Most day services are for people aged 18 to 65. There are also day services for over 65. All age groups will be supported through personal budgets to choose alternative provision and support."

Those findings were developed in the Full EINA section of the form although, as I have indicated, there was no requirement for a full EINA as there were no findings of Higher Impact. The form accurately records that there had been consultation in 2011 and 2012, as was the case, and that there was ongoing Individual Service consultation from August 2013.

32. The claimant maintains that the lack of consultation bears directly on this exercise and that it amounts to a box ticking exercise and is not evidence based. I have already indicated my findings in respect of the consultation, which I do not consider to be lacking. In my judgment, a reading of the EIA and the Council Report, which included the information from the 2011 and 2012 consultations, demonstrates the defendant took an appropriate analysis in reaching its conclusions on Impact and complying with its duties under section 149. It had appropriate and adequate information to reach the conclusions it did in respect of impact on the protected groups and reached conclusions which were open to it on the available evidence. I reject the claimant's argument based on PSED.
33. For the reasons which I have given this claim for judicial review is dismissed.
34. MR AUBURN: I am grateful for the judgment.
35. HIS HONOUR JUDGE SYCAMORE: I understood from an e-mail yesterday that you wanted to deal with consequential matters in writing by 4 o'clock on Friday. If you prefer to deal with them now, I have no difficulty with that.
36. MR AUBURN: I am sorry, I did not see that.
37. HIS HONOUR JUDGE SYCAMORE: It came from your clerk on behalf of all parties Counsel, I think, are from the same chambers.
38. MR AUBURN: It is not something I am aware of.
39. HIS HONOUR JUDGE SYCAMORE: Somebody thought they were looking after your interests. I am not sure I have the print of the email to hand.
40. MR AUBURN: Not that I am aware.
41. MR TARBURY: My Lord, I am only aware that submissions on costs had to be made by Thursday. I do not know about any other relief issues.
42. MR AUBURN: Very well.
43. HIS HONOUR JUDGE SYCAMORE: The e-mail did not specifically refer to costs but if you are both in a position to deal with matters today that would be preferable.
44. MR AUBURN: The (inaudible) standard we can deal I would be grateful.
45. HIS HONOUR JUDGE SYCAMORE: Yes.
46. MR AUBURN: Those that I wanted to deal with (i) appeal; (ii) we ask for detailed assessment of the (inaudible) funded costs and (iii) I want to ask you to make an order in relation to the transcript.
47. Dealing with the first matter, we seek permission to appeal the refusal of the application for judicial review in respect of the first claimant, and if it is necessary to apply to your for permission in respect of the second claimant.
48. HIS HONOUR JUDGE SYCAMORE: In respect of the second. Do you not have to make your application to the Court of Appeal?
49. MR AUBURN: I think that is why ... completely clear, which is why I wanted to mention more out of an abundance of caution, in light of 52.15.4, entirely clear --
50. HIS HONOUR JUDGE SYCAMORE: Let me look.
51. MR AUBURN: 52.15.4 which says --
52. HIS HONOUR JUDGE SYCAMORE: Let me get the page. Let me have a look. 52.15 subparagraph 4.
53. MR AUBURN: Yes, the White Book, which says that the substance of the application is an application to appeal albeit it is refusal of permission. Though the rule it is said it seems to indicate you apply to Court of Appeal, I wanted to make sure that we are not struck out in any way by applying to you, that is sort of thing. That is the emerging second point. I can develop the submission if you want. I was to leave it at that.
54. In relation to the first claimant, who applied for permission to appeal (inaudible), the application for judicial review we rely on both grounds. In relation to merit, in that there is a real prospect of the notwithstanding your judgment, the Court of Appeal may take a different view. This is a straight matter of law, albeit in a factual context but nonetheless a matter of law as to the requirements of the lawful consultation and there is an issue as to whether that includes informing consultees of what sentence (inaudible) may enclose. We say that that as well as other matters involved as well as the issue of whether the test for the national extent of consultations is a Wednesbury one, or simply a matter of the court determine requirements, matters of Australian law on which the Court of Appeal take a different view, judgment.
55. I also apply on the basis these are matters of real wider importance, wider importance both to others within the borough, who will be affected by the possibility of closures without what we say is consultation today on enclosure the centre and indeed outside the borough as to the way in which that case closures such as this are managed. Because we know that in these times, unfortunately, there are closures in other parts of the country and it is a matter of real importance that we all know how, what requirements of the (inaudible) in relation that matter generally. So that is the application to appeal. I can leave that there and deal with the other two matters deal.
56. HIS HONOUR JUDGE SYCAMORE: Yes I will hear from Mr Tarbury.
57. MR TARBURY: My instructions are to be only here to take a note of your judgment I am afraid. I am not fully briefed to resist an application for permission to appeal. I can ring and find out.
58. HIS HONOUR JUDGE SYCAMORE: I do not really think it is essential to delay matters for you to take instructions. As I indicated at an earlier stage, I take the view the first claimant's application is concerned with the particular circumstances of this case. I have explained that in my judgment. I am not satisfied, having listened to the submissions by Mr Auburn that there is either a real prospect of success or any other compelling reason why the appeal should be heard. So I refuse the application for permission to appeal in respect of the first claimant.
59. I am asked to consider the position of the second claimant in respect of whom I have refused permission. It seems to me that it is a matter properly for the Court of Appeal but, I observe that had it been a matter in respect of which permission to appeal fell to be considered by me then for the same reasons I would have refused permission.
60. The other matters relate to detailed assessment. I am perfectly content to make that order in the usual way.
61. MR AUBURN: I am very grateful.
62. The last matter is the transcript of the judgment be prepared as soon as possible.
63. MR AUBURN: In the terms of the order but I am asked to say to you that what would be very helpful to aid expedition of the transcript, is I am sure you would any way, what is important to the transcribers is the recording is delivered to the transcribers as soon as possible.
64. HIS HONOUR JUDGE SYCAMORE: I cannot direct that, but I agree it will be helpful to have the transcript prepared as soon as possible.
65. What about defendant's costs. Are you instructed to make an application for costs on the usual basis not to be enforced without leave?
66. MRTARBURY: I am not I am afraid. I can find out. I imagine they will be seeking --
67. HIS HONOUR JUDGE SYCAMORE: Mr Auburn, if I stand the matter down for a short time, for a phone call that would save written submissions. I suspect that if that application is made you probably will not be in a position to resist it.
68. I would have anticipated an application in the usual way for the defendant's costs not to be enforced without leave given that the claimants have public funding.
69. MR AUBURN: I assume so.
70. HIS HONOUR JUDGE SYCAMORE: If we can deal with that today it is probably better from everybody's point of view, and you can leave knowing exactly what the order is going to be.
71. MR TARBURY: I am already aware and I am told by Fennella Morris QC that submissions on costs are expected by Thursday, by tomorrow.
72. HIS HONOUR JUDGE SYCAMORE: I will rise for 15/20 minutes and if the matter can be resolved then all the better. If it cannot, then I will have to deal with it on written submissions.
(Short Adjournment)
73. MR AUBURN: My Lord, the defendants confirm that they do seek these costs and we do not resist the application, with the usual wording of being publicly funded.
74. HIS HONOUR JUDGE SYCAMORE: Thank you - so order.
75. I am not sure it is necessary to record in the order that I would like the transcript to be dealt with as soon as possible.
76. MR TARBURY: My Lord, we have had that before in other cases and the purpose is obviously that if we are making an application to the Court of Appeal, then obviously benefit from having a transcript as soon as possible. I can show you another recent order.
77. HIS HONOUR JUDGE SYCAMORE: I am not going to make a great issue of it. I am not sure the extent to which it could be enforced against anybody.
78. MR TARBURY: Thank you my Lord.
79. HIS HONOUR JUDGE SYCAMORE: The defendant has no objection to this I take it.
80. MR TARBURY: No.
81. HIS HONOUR JUDGE SYCAMORE: Very well, if it helps I am not sure to what extent it will assist.
82. MR AUBURN: From experience it does help in discussions with the transcribers in relation to their priorities and whether they produce a transcript.
83. HIS HONOUR JUDGE SYCAMORE: Very well I make an order in these terms. Thank you both for your assistance.