Domb v London Borough of Hammersmith and Fulham
| Jurisdiction | England & Wales |
| Judge | SIR MICHAEL HARRISON |
| Judgment Date | 19 December 2008 |
| Neutral Citation | [2008] EWHC 3277 (Admin) |
| Docket Number | CO/7546/2008 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 19 December 2008 |
[2008] EWHC 3277 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Sir Michael Harrison
CO/7546/2008
Mr David Wolfe (instructed by Public Law Project) appeared on behalf of the Claimants
Mr Julian Milford (instructed by the London Borough of Hammersmith and Fulham) appeared on behalf of the Defendant
: Background
In these judicial review proceedings, the claimants challenge the decision of the defendant, the London Borough of Hammersmith and Fulham (“the Council”), made on 16th June 2008 to introduce charges for the home care services it provides to the claimants and to other home care service users within the borough.
On 14th October 2008, Mr Robert Jay QC, sitting as a Deputy High Court Judge, ordered that the claim should be dealt with as a rolled up permission and substantive hearing on an expedited basis because the Council proposes to introduce the new charging system for home care services as from 1st January 2009. I am satisfied that the claimants have an arguable case. I therefore grant permission and proceed to consider the substantive case.
The first claimant, Deborah Domb, is aged 50. She is a wheelchair user who needs help in many aspects of her daily life. The second claimant, Dulce Sobral, is aged 48. She suffers from a number of medical conditions leaving her constantly exhausted and in severe pain so that she needs assistance with many of the physical tasks of daily living. The third claimant, Moses Bushiwa, is aged 25. He lives alone and is completely blind so that he needs assistance with a wide range of daily activities.
The claim really falls into two parts. The first part of the claim involves two main issues —firstly, whether the Council's Executive, the Cabinet, failed to take into account that the introduction of the charges breached an alleged legitimate expectation arising from the Council's manifesto and, secondly, whether the Cabinet had power in any event to make the decision to introduce the charges. The second part of the claim relates to the alleged failure of the Council to comply with its disability, race and gender equality duties. Those two different parts of the claim are capable of being dealt with separately. I start therefore by dealing with the first part of the claim.
First part of the claim —legitimate expectation
a) facts
The first issue under the first part of the claim is the alleged failure to take into account that the introduction of the charges would breach an alleged legitimate expectation arising from the Council's manifesto that there would not be charging for home care services. In dealing with that issue, it is necessary to refer first of all to the relevant facts.
There is no dispute that the Council has power under section 17 of the Health and Social Services and Social Security Adjudications Act 1983 to make charges for the non-residential home care services it provides. Indeed, I was told that 97 per cent of councils charge for such services.
In the case of Hammersmith and Fulham, the Council exercised the power to charge from 2000 to 2006, but that policy was discontinued by the then Labour Administration as from 1st March 2006. The Conservatives approved of the discontinuance of the charging scheme and, in their manifesto for the 2006 local elections, they stated “A Conservative Council will not reintroduce Home Care Charging”.
The Conservatives won the local election and the new Council held its inaugural meeting on 24th May 2006. It was described as the Annual Council Meeting. The manifesto was one of the items included on the agenda. Under that heading, the agenda stated:
“To receive and note the Conservative Administration's Manifesto for the Council for 2006-2010”.
The Mayor's notes for the meeting, which had been drafted by the committee clerk, stated under the dialogue column:
“I call on the Leader of the Council to move the adoption of the Conservative Administration's Manifesto for the period 2006-2010.”
The notes stated under the directions column:
“The Leader is usually given unrestricted time to speak to this item —all other speeches are limited to 5 minutes.”
The Minutes of the meeting relating to the manifesto item record that the Leader of the Council, Councillor Greenhalgh, outlined the Conservative Administration's manifesto for the Council and that the Leader of the Opposition, Councillor Cowan, made a speech in reply “before the item was duly noted”. The minutes then record that it was resolved “That the new Conservative Administration's manifesto for the Council for 2006-2010 be duly noted and adopted”.
During the next two years the Council experienced increasing pressure on its adult social services budget. Ultimately, officers could only identify two ways of bridging the gap in funding —by increasing the threshold eligibility criteria for social care services or by introducing charges for care services. There followed a 12 week consultation period between February and May 2008 during which time a Predictive Equality Impact Assessment was undertaken. The second part of the claim in this case relates to that aspect of the matter.
On 16th June 2008 there was a meeting of the Cabinet at which the issue of home care charging was on the agenda. The officer's report for that meeting recommended that the Council charged service users for home care in line with the Department of Health's Fairer Charging Guidance with an implementation date of 1st January 2009. The Cabinet resolved to adopt that recommendation with a charge of £10 per hour increasing in the light of assessed need for services, if need or costs increase, up to £12.40 per hour. That is the decision that is challenged in these proceedings.
It is clear from the witness statements filed on behalf of the Council that the Leader of the Council, Councillor Greenhalgh, and the Cabinet Member for Community and Children's Services, Councillor Lillis, were acutely aware that by introducing charges for home care services they were departing from their manifesto pledge. That fact was put to them by opposition councillors during the meeting on 16th June 2008.
b) Submissions
Mr Wolfe's argument on behalf of the claimants on this aspect of the case was, to put it shortly, that the Minutes of the Council meeting on 24th May 2006 show that the Council adopted the manifesto thereby giving rise to a legitimate expectation that the Council would not reintroduce home care charging, but on 16th June 2008 when the cabinet resolved to introduce home care charging it failed to have regard to the fact that it was in breach of a promise which had given rise to a legitimate expectation that it would be honoured.
Placing reliance on the words “noted and adopted” (my underlining) in relation to the manifesto in the Minutes of the Council's meeting on 24th May 2006, Mr Wolfe drew a distinction between a mere manifesto promise and the adoption of a manifesto promise. He relied on a remark made by Sedley LJ in the case of R v Secretary of State for Education and Employment, ex parte Begbie [2000] 1 WLR 1115. In that case Peter Gibson LJ stated at page 1126D that when a party elected into office fails to keep its election promises, the consequences should be political and not legal. Laws LJ remarked at page 1131C that the more the decision challenged lies in what may be inelegantly called the macro-political field, the less intrusive will be the court's supervision. Sedley LJ, in what is agreed to be an obiter remark in the last paragraph of his judgment, stated at page 1134C:
“A pre-election promise may of course be expressly adopted by a new administration once in office, but then it acquires a new character with, no doubt, consequences analogous to those of any other representation made by a public authority.”
Mr Wolfe submitted that the statement in the manifesto that a Conservative Council will not reintroduce home care charging was a clear and unambiguous statement which had been adopted by the Council. He accepted that the Council could charge its mind but he submitted that, if it did so, it had to take into consideration that it was in breach of a promise which had given rise to a legitimate expectation. He relied on the dictum of Schiemann LJ in R (on the application of Bibi) v Newham London Borough Council [2002] 1 WLR 237 at paragraph 39, where he stated:
“But, on any view, if an authority, without even considering the fact that it is in breach of a promise which has given rise to a legitimate expectation that it will be honoured, makes a decision to adopt a course of action at variance with that promise then the authority is abusing its powers.”
Mr Wolfe submitted that, although the Cabinet were aware at the meeting on 16th June 2008 that they were going against the manifesto statement about not charging, they treated it as a mere manifesto promise and failed to accord it the greater legal significance of an adopted Council decision. He drew attention to paragraph 1.2(d) of the Council's Procedure Rules, which form part of the Council's Constitution, where one of the matters to be considered at the Annual Meeting is “approving or adopting” the policy framework of the authority. He submitted that the Council had adopted the manifesto as part of the policy framework. He also placed importance on the fact that, at the Council meeting on 28th June...
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