R (W) v Birmingham City Council
| Jurisdiction | England & Wales |
| Judge | Mr Justice Walker |
| Judgment Date | 19 May 2011 |
| Neutral Citation | [2011] EWHC 1147 (Admin) |
| Docket Number | Case No: CO/1765/2011 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 19 May 2011 |
[2011] EWHC 1147 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Sitting at:
Birmingham Civil Justice Centre
Priory Courts, 33 Bull Street, Birmingham, B4 6DS
The Honourable Mr Justice Walker
Case No: CO/1765/2011
Case No: CO/1772/2011
Mr Ian Wise QC, Mr Stephen BroachandMr Ben Silverstone for the Claimant W (instructed by Irwin Mitchell LLP) and for the Claimants M, G and H (instructed by Public Law Solicitors)
Mr Andrew Arden QC, Mr Christopher BakerandMr Sam Madge-Wyld (instructed by Birmingham City Council Legal Services) for the Defendant
Hearing dates: 14, 15, 18, 20 April 2011
This case concerns the provision made for those with disabilities in the current budget of Birmingham City Council ("the Council"). The current financial year began on 1 April 2011, that is just over a month and a half ago. Two urgent applications for permission to apply for judicial review were lodged on 25 February 2011. Claim number CO/1765/2011 is brought by a disabled woman whom I shall call "W". Claim number CO/1772/2011 is brought by three other disabled residents of Birmingham whom I shall refer to as "M", "G" and "H". The two claims are identical in substance and directions in both were given by Beatson J on 2 March 2011. He directed a "rolled up" hearing in which the applications for permission and the substantive claims would be dealt with at the same time. He also made an anonymity order in respect of each of the claimants.
The rolled up hearing took place before me in Birmingham from 14 to 18 April 2011. Mr Ian Wise QC and Mr Stephen Broach, who appeared on behalf of the claimants, identified three grounds of challenge to the provision made by the Council when taking decisions to adopt (a) its Business Plan on 1 March 2011 and (b) its Adult Social Care policy on 14 March 2011. Those decisions involved a change in the eligibility criteria which determined, in relation to a particular need or needs, whether the Council would provide specific support to meet the need or needs in question. National guidance provided for needs to be assessed so as to place them into one of four bands of increasing severity – low, moderate, substantial or critical. Prior to 2011/12 the Council had provided support to meet those needs which were assessed to be either substantial or critical. The decisions under challenge approved a prospective change under which individual budgets would be funded only to meet those needs which were assessed to be critical. This prospective change was said to be unlawful as a result of:
i). a failure by the Council to have due regard to the disability equality duty pursuant to the Disability Discrimination Act 1995 s 49A
ii). a failure by the Council to 'ask itself the right questions' in the Tameside sense – a reference to what was said by Lord Diplock in Secretary of State for Education and Science v Tameside MBC [1977] AC 1014 at 1065B; and
iii). the consultations leading to these decisions (i) failing to comply with the common law standard for consultations established by the courts and (ii) breaching the procedural requirements of Article 8 European Convention on Human Rights.
Mr Andrew Arden QC, Mr Christopher Baker and Mr Sam Madge-Wyld appeared on behalf of the Council. They submitted that this is "a micro challenge to a macro decision". Thus the starting point for the Council's answer to the challenge is that the proposed change is a matter of high policy, while the complaints about it turn on matters that largely concerned "petty bureaucracy, at quite a low level."
Some features of the history of the claim
The lawfulness of the Council's approach to the provision it makes for the disabled is of acute importance not only to those residents of Birmingham who are disabled but to others as well. The hearing has rightly been treated as urgent, and has come on with great speed. The parties have had to take account of events occurring as they prepared for the hearing. Indeed the decisions now under challenge had not been taken when the claim began. Witness statements were prepared, other material was assembled, and skeleton arguments were lodged, all under considerable pressure of time. Counsel on each side provided the court with speaking notes, and Mr Wise provided a further note on 16 April 2011. These notes were of great assistance in enabling me to assimilate evidence and argument at speed, and I have drawn heavily upon them in the preparation of this judgment.
Permission to apply for judicial review
The case is now substantially different from its original form. In its current form it raises issues which merit careful examination. Accordingly I grant permission to challenge the decisions of 1 and 14 March 2011 identified above on the grounds set out in the claimants' speaking note and the further note of 16 April 2011.
The Claimants
The claimants are all severely disabled adult residents of Birmingham who bring these applications by litigation friends. Each has what Mr Wise describes as "a constellation of difficulties arising from disabilities." As recipients of adult social care services from the Council they all have a direct interest in the decisions challenged.
W is 65 years old and has learning disabilities and mental health needs. She lives in a residential home where she receives a package of care funded by the Council. A care plan prepared by the Council for W identifies many areas of daily living where she is at risk.
M is 25 years old and has a severe learning disability as a result of a genetic disorder. M currently attends college, but is due to finish in July 2011 and so will shortly need day centre provision or equivalent daytime activities. At present the only social care service M is receiving is residential respite care. The Council prepared an assessment of M in March 2008. This records his needs as being 'critical' in the area of "Autonomy and Freedom of Choice", but 'substantial' in the areas of "Health and Safety", "Managing Personal and Daily Routines" and "Family and Social Involvement". His mother states that it is not at all clear that M will be eligible for support under the Council's changed policy, and that if he were to be ineligible for day services the pressure on her would be enormous. Her witness statement describes how M follows her around at home all the time, using repetitive language. M needs constant supervision because he does not protect himself from dangers. He cannot go to the toilet on his own. There are also behaviour problems which will be exacerbated without any daytime service. It seems highly unlikely that there is an alternative resource in the community that could meet M's needs, particularly without any local authority funding.
G is 36 years old. She is not able to take care of her own personal needs and cannot protect herself from risk. She lives at home with her mother and father who are in their 60s and now think that it is time for their daughter to move into residential care. An amended assessment dated 26 April 2010 identified needs assessed as critical, substantial and moderate. Her epilepsy at night results in her needs in that regard being assessed as critical. By contrast she is assessed as having "substantial" needs in relation to her health and safety and managing personal and daily routines. These "substantial" needs relate in particular to her risk of harm to herself and others and inability to carry out the majority of her personal care or domestic routines. Her parents are concerned that support to guard against these risks will not be provided under the new regime and that the consequences of this for G's future care package are unclear.
H is 29 years old. He has a severe learning disability, autism, is profoundly deaf and has scoliosis of the spine. H has a wide range of complex needs and can present with challenging behaviour including smearing and eating his own faeces. H lives at home with his parents, an arrangement which depends upon the Council providing 92 nights of respite care annually. He has been assessed as having a mixture of 'critical' and 'substantial' needs, including 'substantial' needs relating to his requirement for daytime provision. H receives day care from an organisation known as SENSE 5 days a week. It is said to be particularly unlikely in H's case that there would be any alternative provision available for him in the community as he used to attend a day centre but there was an incident where he harmed another service user, and he has not attended a day centre since. He has been assessed as needing a staffing ratio of 2:1 to go out into the community. It is said that such a staffing level is only a realistic possibility if support remains funded by the Council.
State Provision for the Disabled
Support for the disabled during the period to 2007
The modern system for supporting disabled adults began at around the same time as the introduction of the National Health Service ("NHS"). The National Assistance Act 1948 created a duty to provide residential accommodation (s 21) and a duty to provide welfare services (s 29). The Chronically Sick and Disabled Persons Act 1970 ("CSDPA") provided greater specificity to the duties placed on local authorities to provide for disabled adults. The National Health Service and Community Care Act 1990 ("NHSCCA") introduced the concept of care in the community.
The legislation and guidance applicable in 2007 was described by HHJ Mackie QC in R (Chavda) v Harrow LBC [2007] EWHC 3064 (Admin). I have drawn on paras 3 to 8, 32 and 33 in order to give the account which follows.
The basic...
To continue reading
Request your trial
-
R M and S v London Borough of Haringey
...held to be unlawful, at least in part, because of defects in the information supplied for the purpose of consultation, namely R (W) v Birmingham City Council 120 BMLR 134 ([2011] EWHC 1147 (Admin)) and R (JM) v Isle of Wight Council 15 CCL Rep 167 ([2011] EWHC 2911 (Admin)). He said that th......
-
JG & MB v Lancashire County Council
...impact before fixing on a particular solution ( Kaur at para 44). 45 Mr Wise also relied heavily on the recent decision in R (WM and others) v Birmingham City Council [2011] EWHC 1147 (Admin). In that case Birmingham decided to restrict eligibility for adult social care only to those indivi......
-
R (KM) v Cambridgeshire CC
...could afford to meet only critical needs was recently held unlawful because of deficiencies in the process which had led to it: R(W) v Birmingham City Council [2011] EWHC 1147 (Admin), (2011) 120 BMLR 21 It is common ground that, once the second stage has been passed, as it was in the cas......
-
R and Others v Secretary of State for Justice
...of propositions summarising the approach said to be applicable under section 149, as set out in the judgment of Walker J in R (W) v Birmingham City Council [2011] EWHC 1147 at [151]. However, as Mr Auburn for the Secretary of State correctly pointed out, Walker J makes it clear that the ser......