R "LH" & "CM" v Shropshire Council
| Jurisdiction | England & Wales |
| Judge | His Honour Judge Sycamore |
| Judgment Date | 27 November 2013 |
| Neutral Citation | [2013] EWHC 4222 (Admin) |
| Docket Number | CO/15272/2013 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 27 November 2013 |
[2013] EWHC 4222 (Admin)
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
His Honour Judge Sycamore
(Sitting as a Judge of the High Court)
CO/15272/2013
Mr J Auburn (instructed by Irwin Mitchell Solicitors) appeared on behalf of the Claimant
Miss F Morris QC & Ms V Butler-Cole (instructed by Shropshire Council) appeared on behalf of the Defendant
Hearing date: 14 November 2013
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).
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.
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.
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her litigation friend and other family members, so as to enable the judicial review proceedings to be compromised or withdrawn."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.
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.
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).
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.
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.
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.
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.
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.
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.
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.
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...
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