R (on the application of Robson) v Salford City Council
| Jurisdiction | England & Wales |
| Judge | Lord Justice Richards,Lord Justice Treacy,Mr Justice Newey |
| Judgment Date | 20 January 2015 |
| Neutral Citation | [2015] EWCA Civ 6 |
| Docket Number | Case No: C1/2014/3562 |
| Court | Court of Appeal (Civil Division) |
| Date | 20 January 2015 |
The Queen on the application of
[2015] EWCA Civ 6
Lord Justice Richards
Lord Justice Treacy
and
Mr Justice Newey
Case No: C1/2014/3562
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT AT MANCHESTER
HHJ Stephen Davies
Royal Courts of Justice
Strand, London, WC2A 2LL
Ian Wise QC and Azeem Suterwalla (instructed by Irwin Mitchell LLP) for the Appellants
Peter Oldham QC and Paul Greatorex (instructed by Manchester and Salford Legal Services) for the Respondent
Hearing date: 10 December 2014
This appeal relates to a decision by Salford City Council ("the Council") to close its Passenger Transport Unit ("the PTU"), by which it provided a transport service for disabled adults between their homes and adult day centres, and to make alternative transport arrangements for such adults. The closure formed part of a package of cost-cutting measures and was budgeted to lead to a saving of £600,000 a year. The appellants are severely disabled adults who used the PTU service. They challenged the closure decision by way of a claim for judicial review. The claim was dismissed by His Honour Judge Stephen Davies, sitting as a High Court Judge in the Administrative Court at Manchester. An appeal against his decision is brought by permission granted by Bean LJ.
There are three issues in the appeal: (1) whether the Council acted unlawfully in failing to undertake full individual community care assessments before making a decision to terminate the PTU service ("the assessment issue"); (2) whether the consultation carried out prior to the decision was lawful ("the consultation issue"); and (3) whether the Council complied with the public sector equality duty under section 149 of the Equality Act 2010 ("the PSED issue").
Statutory and factual background
The judge described the statutory scheme in this way at paragraphs 8–10 of his judgment (with original emphasis):
"8. It is common ground that the defendant is obliged under section 29 of the National Assistance Act 1948 and s.2 CDSPA [the Chronically Sick and Disabled Persons Act 1970], 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.
9. 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'.
10. 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 judge referred at paragraph 18 to the evidence before him about the personal circumstances of the claimants, including their disabilities and the impact of those disabilities upon their lives. He did not think it necessary for the purposes of his judgment to set out the detail, stating that "it suffices to say that both are fully dependent on others for their care, and are only able to continue living at home due to the unstinting care and attention of their mothers, assisted in Jennifer's case by other members of her family". Mr Wise QC took us to the mothers' witness statements to underline the profound level of disability in question. I have kept that evidence well in mind but, like the judge, I do not think it necessary to set it out.
At paragraph 19 the judge described the PTU service as follows:
"The PTU service, in short, involves the use of drivers, directly employed by the defendant, driving wheelchair adapted buses, with ramps, leased by the defendant (known as 'white buses'). Those buses, manned by passenger assistants as well as drivers, collect eligible adult service users from their homes and drop them off at various day centres in Salford, and then collect and return them in due course. It is, in effect, rather like a school bus service, so that defined routes, collecting and dropping off particular service users at particular times, are operated."
The role of the PTU service can be illustrated by the cases of the two appellants. At the material time Michael Robson attended a day centre on five days a week. He used the PTU service on two or three of those days. On the remaining days he used a taxi or was driven by his mother in a motability vehicle. He contributed £3.90 per return trip for the PTU service and £5 per return trip for the taxi service. Jennifer Barrett attended a day centre on four days a week, using the PTU service each day.
The substance of the Council's proposal and of the decision adopting it was to close the PTU (and thus to cease to provide transport by means of the PTU service) and to discharge the duty under section 2 of the CSDPA by means of alternative arrangements. That is common ground and is clear when the evidence is looked at as a whole. One of the difficulties about the case, however, is the lack of clarity in some of the contemporaneous documentation.
When the proposal was first described, in a budget report for a meeting of the Council on 26 February 2014, it was summarised as "Withdrawal from the direct delivery of specialist transport for people with a disability and the introduction of a revised criteria for support with transport that emphasises the use of more ordinary options for more individuals".
In a report to Cabinet on 11 March 2014 the proposal was expressed in these terms:
"The proposal being considered … is to clarify the current transport policy for adults and to ensure that it is fit for purpose and supports the aspirations of the Council in promoting independence.
Of the 204 people already in the service, 100 have received an initial assessment which indicates that an alternative arrangement can be made. Of the other 100 where specialist vehicles are required the revision policy seeks to clarify which other benefits can be taken into consideration for funding transport arrangements. For those who continue to need support of a more specialist nature there will be continued responsibility to ensure there is suitable, safe options to meet that need.
The proposal seeks to achieve a £600k saving.
It is anticipated that 24 FTE staff in this area will no longer be employed in these roles."
The public consultation had just begun at the date of that report and continued until late May 2014. I will consider the related documents when dealing with the consultation issue.
A Community Impact Assessment dated May 2014 stated that the proposal was "for the Passenger Transport Unit to save £600,000 in a full year … by reviewing each service user's transport needs, and applying the Council's revised passenger transport policy 'Criteria for Transport'". The transport criteria in question do not seem to have been clearly articulated, though the document explained that "service users would, if appropriate, have access to Ring and Ride, taxis (with adaptations to support individual need), ordinary public transport or assistance from friends and family". Discussions with service users had found by that stage that "169 of them could make adequate alternative arrangements, and that the other 40 could use an alternative form of transport with some support". I will consider the individual transport assessments when dealing with the assessment issue, and I will come back to the content of the Community Impact Assessment when dealing with the PSED issue.
The proposal was expressed more clearly in a report to Cabinet on 30 June 2014, when the decision to adopt it was taken. Section 5.9 concerns the PTU. The opening paragraphs set out the history. The box in para 5.9.6 then reads:
"The original proposal was to cease to use the Passenger Transport Unit to meet people's transport needs and seeks to identify alternative transport options to adult service users accessing day services and Granville. It has been identified that 40 people may have ongoing needs for some form of supported transportation.
A project team will focus on the individual circumstances of the 40 people to further look at alternatives with families and determine what support will be obtained throughout the changes ….
… [Substantial passages relating to the disestablishment of staff posts and the ending of transport lease arrangements, and the consequential savings.]
As a result it is proposed that the original proposal should not be changed …."
The decision was the subject of a call-in to the Adult Services Scrutiny Committee but the Committee decided on 23 July 2014 not to uphold the call-in, with the result that the decision stood.
Effect has been given to the decision by making alternative...
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