MICHAEL ROBSON (by his mother and litigation friend Mary Robson) and Another v SALFORD CITY COUNCIL
| Jurisdiction | England & Wales |
| Judge | His Honour Judge Stephen Davies |
| Judgment Date | 23 October 2014 |
| Neutral Citation | [2014] EWHC 3481 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 23 October 2014 |
| Docket Number | Case No. CO/4033/2014 |
[2014] EWHC 3481 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT AT MANCHESTER
Manchester Civil Justice Centre,
1 Bridge Street West, Manchester M60 9DJ
His Honour Judge Stephen Davies
Sitting As A Judge Of The High Court
Case No. CO/4033/2014
THE QUEEN ON THE APPLICATION OF
Ian Wise QC & Azeem Suterwalla (instructed by Irwin Mitchell LLP Solicitors, Manchester) for the Claimants
Paul Greatorex (instructed by Manchester and Salford Legal Services) for the Defendant
Hearing date: 15 October 2014
Summary
The claimants, who are both adults with severe disabilities who live in the City of Salford, challenge the defendant's decision, made on 30 June 14 and confirmed on 23 July 14, to cease providing directly, through its Passenger Transport Unit ("PTU"), a transport service for eligible adults living in its area, including themselves, to enable them to attend adult day centres.
The context for the decision is that it is part of a package of measures intended to achieve savings in the defendant's community, health and social care budget. The defendant's alternative approach is to apply a revised transport policy, entitled "criteria for transport", under which individual transport arrangements are made for each individual eligible adult service user, through a variety of different means, such as the "ring and ride" service, taxis (adapted as necessary) or motability vehicles driven by their carers, coupled with support, whether by making provision for an escort, or by providing financial assistance, in appropriate cases.
In summary, the claimants advance the following grounds of challenge:
(a) A failure to provide viable transport arrangements will be in breach of the defendant's statutory duty under section 2 of the Chronically Sick and Disabled Persons Act 1970 ("the CSDPA").
(b) The withdrawal of services without lawful reassessments of service users was unlawful.
(c) The decision was procedurally improper because it was taken in the absence of a lawful consultation as required at common law.
(d) The defendant breached its statutory duty in failing to comply with the public sector equality duty imposed under section 149 of the Equality Act 2010 ("the Equality Act").
The defendant's position, in summary, is as follows:
(a) The claimants' challenge confuses two entirely separate decisions: (i) the "high level" decision to cease providing a direct transport service via the PTU and to apply instead the individualised criteria for transport policy; (ii) individual decisions made in relation to individual eligible adult service users as to the particular transport arrangements to be made for them to access adult day centres.
(b) As regards the high level decision, the defendant's case is that the challenge is misconceived, because the defendant is not required to fulfil its obligations to eligible adults such as the claimants to make arrangements for the provision of transport to day centres by any one particular method, such as the provision of a direct transport service via the PTU. All that the defendant is required to do is to fulfil the obligation it owes to an individual eligible adult under s.2 CSDPA by the provision of appropriate facilities or assistance, and there is no basis for suggesting that it is not ready, willing and able to fulfil that duty through its individualised criteria for transport policy. It rejects the challenges to the decisions in relation to the failure to undertake proper consultation and in relation to the alleged breach of the public sector equality duty.
(c) As regards the individual decisions in relation to individual service users, the defendant's position is that: (a) there is no discrete challenge made in this case to the individual decisions in relation to each of the claimants; (b) in any event any such challenge would be premature, because the decision as communicated to them was not a final decision and/or because both have exercised the right afforded to them by the defendant to request further assistance and/or to appeal, and that process is still ongoing in relation to each. The defendant submits that it is only if and when a final decision is communicated to them with which they disagree that judicial review would be appropriate.
At the same time as the claim was issued on 28 Aug. 14 the claimants made an application for interim relief seeking to prevent the defendant from closing down the PTU with effect from 29 Aug. 14, as had initially been communicated. That issue was resolved by the defendant agreeing, at a hearing before me on 4 Sept. 14, to maintain the PTU until 1 Nov. 14 or further order. On that basis I gave directions for an expedited timetable. I subsequently granted permission on the papers on 10 Sept. 14, the substantive hearing was listed on 15 Oct. 14, and this judgment now follows.
My decision is that the claimants' challenge fails, for reasons which I shall give in the following sections of this judgment.
The Statutory Scheme
The statutory scheme is not in dispute, and can be shortly summarised.
It is common ground that the defendant is obliged under section 29 of the National Assistance Act 1948 and s.2 CSDPA, where it is satisfied that it is necessary in order to meet the welfare needs of eligible adults living in their area, to make arrangements for the provision of welfare services. Thus in this case the defendant has made arrangements for the claimants, and the other disabled adults affected by the decision, to attend adult day centres and social care respite centres.
It is also common ground that in such circumstances the defendant is also obliged under s.2(1)(d) CSDPA to " make arrangements for … the provision … of facilities for, or assistance in, travelling to and from his home for the purpose of participating in any services provided under arrangements made by the authority".
The defendant submits, and the claimants accept, rightly in my view, that the obligation is to make arrangements for facilities or assistance to be provided, and that this imports no obligation to provide facilities or assistance directly. The provision of facilities or assistance by other means, such as by entering into appropriate contracts with private organisations, or arranging for the eligible adult or his carer to provide his own transport, where appropriate with financial assistance, is permitted.
The claimants submit, and the defendant accepts, again rightly in my view, that it is implicit in s.2(1)(d) that the facilities or assistance should be suitable for the required purpose.
The claimants draw to my attention the statutory scheme for the assessment of the need for community care services. The obligation upon a local authority to undertake an assessment of needs and to make a decision as to whether those needs call for the provision of community care services, is imposed by section 47 National Health Service and Community Care Act 1990. In so doing, the local authority must comply with the Community Care Assessment Directions 2004, which include obligations: (a) to consult with the person and, where appropriate, his carers; (b) to take all reasonable steps to reach agreement with the person and, where appropriate, his carers.
The claimants also draw to my attention the statutory guidance, issued by the Department of Health under section 7(1) Local Authority Social Services Act 1970, entitled "Prioritising need in the context of putting people first: A whole system approach to eligibility for social care" dated 2010. That gives detailed guidance as to the assessment procedure, including the provision of an appropriate support plan, recorded in writing. In a section dealing with carers warning is given not to make inappropriate assumptions about how much support carers are willing or able to provide. The claimants accept of course that they have already been assessed on previous occasions, so that the process which they contend should have happened here would have been a review process, in respect of which the publication also gives guidance. Emphasis is placed on the desirability of adopting a simple flexible review process, but also to address certain specified matters in the course of such reviews. The claimants emphasise the need to address areas of risk, and the need to update the support plan where appropriate at the conclusion of the review process.
The claimants submit that this statutory guidance should be followed unless the local authority decides, on proper grounds, that there is good reason to depart from it: see the decision of Sedley J (as he then was) in R v LB Islington ex p Rixon (1986) 32 BMLR 136.
The claimants also submit that in this case there is a co-extensive duty upon the defendant, arising at common law, not to withdraw services previously provided to them without a re-assessment of their needs, and rely upon the decision to that effect at first instance in the Divisional Court, not challenged or doubted or disturbed by the Court of Appeal or the House of Lords, in R v Gloucestershire CC ex p Barry [1997] AC 584.
Finally, the claimants note that there is no statutory right of appeal against decisions in relation to assessment or the provision of services, including therefore the provision of transport in this case. Local authorities such as the defendant may have internal appeal and complaints procedures, and complaints may be escalated to the Ombudsman, but there is no formal appeal process to an independent tribunal. Thus the only legal remedy for a dissatisfied person in such circumstances would be by...
To continue reading
Request your trial
-
R (on the application of Robson) v Salford City Council
...DIVISION) ON APPEAL FROM THE HIGH COURT OF JUSTICE QUEEN'S BENCH DIVISION ADMINISTRATIVE COURT AT MANCHESTER HHJ Stephen Davies [2014] EWHC 3481 (Admin) Royal Courts of Justice Strand, London, WC2A 2LL (Transcript of the Handed Down Judgment of WordWave International Limited A Merrill Commu......