The Queen (on the Application of LH) v Shropshire Council
| Jurisdiction | England & Wales |
| Judge | Lord Justice Longmore,Lord Justice Lewison,Lord Justice McFarlane,and |
| Judgment Date | 04 April 2014 |
| Neutral Citation | [2014] EWCA Civ 404 |
| Docket Number | Case No: C1/2013/3516 |
| Court | Court of Appeal (Civil Division) |
| Date | 04 April 2014 |
[2014] EWCA Civ 404
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
HIS HONOUR JUDGE SYCAMORE (Sitting as a Judge of the High Court)
Royal Courts of Justice
Strand, London, WC2A 2LL
The Right Honourable Lord Justice Longmore
The Right Honourable Lord Justice McFarlane
and
The Right Honourable Lord Justice Lewison
Case No: C1/2013/3516
Ms Jenni Richards QC & Mr J Auburn (instructed by Irwin Mitchell Solicitors) for the Appellant
Ms Fenella Morris QC & Ms V Butler-Cole (instructed by Shropshire Council) for the Respondent
Hearing dates: 20 th & 21 st March 2014
Approved Judgment
Introduction
This is an appeal about the extent of consultation required when a local authority reconfigures its day care services for citizens in its area and then decides to close a day centre. LH is 63 years old, has a learning disability, has been assessed as having substantial care needs and has been using the services of Hartleys Day Centre in Shrewsbury. Shropshire Council ("the Council") has decided to close that day centre as a result of its re-thinking of day centre care in the county; that re-thinking is itself a result partly of budgetary constraints and partly of encouragement from central Government to give disabled people their own personalised budget for spending in relation to their disability. The Council contends that it consulted generally about the new system which it brought in and made clear that some day centres would close; LH contends by JL (her litigation friend and sister) that LH and others should have been consulted in relation to the closure of Hartleys itself before it occurred. There is also an allegation of failure to comply with the statutory Public Sector Equality Duty ("PSED") as contained in section 149 of the Equality Act 2010 ("the 2010 Act").
There is no statutory obligation to consult if day care services are withdrawn or substantially altered. But the Council accepts that fairness does require consultation with users. The question that divides the parties is how specific that consultation is to be.
For the last 12 years LH has been living with and cared for by her sister. She attended Hartleys Day Centre originally on 4 days a week and latterly on two days a week with two days at other centres; she has long-standing friendships with other users of the Hartleys day centre.
The Statutory Position
Section 29 of the National Assistance Act 1948 provides:-
"(1) A local authority may, with the approval of the Secretary of State, and to such extent as he may direct in relation to persons ordinarily resident in the area of the local authority shall make arrangements for promoting the welfare of persons to whom this section applies, that is to say persons aged eighteen or over who are blind, deaf or dumb, or who suffer from mental disorder of any description and other persons aged eighteen or over who are substantially and permanently handicapped by illness, injury, or congenital deformity or such other disabilities as may be prescribed by the Minister."
Section 2 of the Chronically Sick and Disabled Persons Act 1970 provides:-
"(1) Where a local authority having functions under section 29 of the National Assistance Act 1948 are satisfied in the case of any person to whom that section applies who is ordinarily resident in their area that it is necessary in order to meet the needs of that person for that authority to make arrangements for all or any of the following matters, namely –
a) the provision of practical assistance for that person in his home;
b) the provision for that person of, or assistance to that person in obtaining, wireless, television, library or similar recreational facilities;
c) the provision for that person of lectures, games, outings or other recreational facilities outside his home or assistance to that person in taking advantage of educational facilities available to him;
…
then …it shall be the duty of that authority to make those arrangements in exercise of their functions under the said section 29."
The Background
The Council has assumed many responsibilities for adult social care and naturally enough the way in which that responsibility is discharged changes over time. By 2011 it was common for local authorities to be proposing personalised budgets for disabled persons in order to give them more choice as to the places and sorts of care which they could use. At the same time, they were required by Coalition policies to make savings in their budgets. In June 2011 Mr Stephen Chandler, Shropshire's Director of Adult Services, prepared a paper for the Council Cabinet entitled "Transformation of Adult Social Care – Live Life Your Way". It is a wide ranging paper which is difficult to summarise but under the heading of "Shared Vision" it stated that the Council wanted to re-assess the current service in its entirety to bring about a fundamental change in the ways it was delivered. Para 4.3 said:-
"Shropshire Council is committed to ensuring that it seeks out and take account of local people who use Adult Social Care Services, their families and carers, partners, stakeholders and local members. We will look to transform the service and embark on a journey together to shift the balance of care towards personalised services in community settings to help people achieve the outcome they want and lead more independent lives for longer."
It then set out 8 key elements of this vision in which the personalisation of budgets was given great emphasis (para 4.5). In para 5.3 it expected that there would be a reduction in numbers of people choosing residential care thus enabling the council to reduce cost, and provide better value for money. In relation to Day Time Opportunities it said (paras 5.5 and 7):-
"At present individuals who are identified as needing support during the day have a limited range of support available, mainly through buildings based and council run day centres. But the current demands from users and their families are for much more than just this and we will develop a clear strategy for an improved range of future day opportunities …
This is a fundamental shift away from old traditional models of service provision, often provided directly by the Council in fixed, one size fits all ways, to new modern approaches in line with the proposed "offer" of greater individual choice."
It also promised consultation on a revised approach to charges for day centre places. Para 8.1 stated that the two proposals would form part of the strategy for achieving savings of about £9 million.
The Cabinet of the Council ("Cabinet") was asked to support the development of the new shared vision and approve a process of widespread consultation to develop that new shared vision. On 29 th June 2011 Cabinet decided to do just that.
Throughout the summer of 2011 widespread consultation took place. Apart from website and numerous press participations, there were 6 public events held throughout the county. In Shrewsbury the Football Stadium was hired on 29 th July 2011 and 80 people attended, including JL. There were smaller discussion groups held in local day centres and, at Hartleys Day Centre itself, such groups met on 8 th and 9 th August. About 15 parents or carers attended the second of those meetings. Overall 600 people took part. Slide shows or PowerPoint presentations were given setting out a number of key changes including:-
and"1. Greater support for people to remain independent within their own home reducing admission to residential care"
"4. Improving the offer people receive in relation to day time opportunities. This will mean fewer building based and Council run day centres, replaced by more opportunities for work and employment and access to community based activities through using personal budgets."
It is evident (as the judge found) that there was concern that day centres would close. We were referred to comments made at the meeting on 29 th July that users were not happy about closures or the alternative arrangements made. One parent said that her son's independence would shrink without the day centres. She added that she was happy with the current arrangements, but was worried about what would happen when the day services had gone. The judge referred to a further comment of 4 th August expressing anxiety at closure of day centres.
The key message from consultation, as reported to the Council on 19 th October 2011, emphasised that day centres were important for socialising and independence but also that there was a desire to move away from building based services. There was a particular concern that day centres should be modernised and made more inviting.
As a result of all this Mr Chandler prepared an Adult Care Strategy Implementation and Action Plan which was approved by Cabinet on 14 th December 2011. It was thought that it would make a significant contribution to the desired savings of £9.65 million but did not propose any closure of day centres at that time.
In pursuance of this policy of personalisation of adult social care services, a further paper was presented to Cabinet recording that the Council had been told to "move away from building based services" and to prioritise (inter alia) "offering variety, not just day centres"; it recommended a further period of consultation on both the personalisation of day time support (Strand 1) and what it referred to as the extension of a fair...
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