The Queen (on the application of Amrutben Karia) v Leicester City Council
| Jurisdiction | England & Wales |
| Judge | Sir Stephen Silber |
| Judgment Date | 30 September 2014 |
| Neutral Citation | [2014] EWHC 3105 (Admin) |
| Docket Number | Case No: CO/183/2014 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 30 September 2014 |
[2014] EWHC 3105 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Sir Stephen Silber
(SITTING AS A HIGH COURT JUDGE)
Case No: CO/183/2014
Helen Mountfield QC (instructed by Deighton Pierce Glynn of Bristol) for the Claimant
Andrew Sharland (instructed by Solicitor, Leicester City council) for the Defendant
Hearing dates: 24 June and 4 July 2014
Written submissions filed on 11 and 14 July 2014
Introduction
There are few issues, which prompt such controversy as attempts to close a home for elderly people who have lived there for long periods. This is the background to the present application which is a challenge by Ms Amrutben Karia ("the Claimant") who seeks to quash the decision ("the October Decision") made by Leicester City Council ("the Council") on 15 October 2013 to withdraw the provision of direct residential home care in Leicester. This application relates to Phase One of the October Decision, which was that three care homes including Herrick Lodge would close. The Claimant, who is a British Asian woman of Gujarati descent, is 101 years old, and she has lived in Herrick Lodge since 1999. It is the only one of the three homes due to close under Phase One of the October Decision that has not been closed, because its closure has been postponed pending the determination of the present application.
The Council is the social services authority for Leicester, and so it has an obligation under s.21 of the National Assistance Act 1948 ("NAA") (which is set out in the Appendix to this judgment) to make arrangements for providing residential accommodation to those in its area who, by reason of, inter alia, age are in need of care and attention which is "not otherwise available to them". It is common ground first, that there is no obligation on the Council to provide the accommodation itself as it can discharge its duty to such individuals by using accommodation run by private organisations and by the voluntary sector, and second, that the Claimant is a person to whom such duty is owed by the Council. It is not suggested that the Council is now in breach of such duty while Herrick Lodge remains open.
The challenges to the October Decision are that the Council:
(a) Failed to adequately inform itself on material issues of fact and proceeded on the basis of fundamental errors of fact relating to first, the overall present and future levels of demand for residential care home provision; and second, the nature of demand for residential care before making the October Decision in breach of the principles explained by Lord Diplock in Secretary of State for Education and Science v Tameside NBC [1977] AC 1014 ("Issue 1");
(b) Reached the October Decision "without due regard" to first, the need to avoid unlawful discrimination in the provision of services; second, the need to advance equality of opportunity for people of Asian descent; and third, the need to give due regard to the need to foster good relations contrary respectively to s149 (1) (a), s149 (1) (b) and s149 (1) (c) of the Equality Act 2010 ( EA") respectively. In essence, the claim is that the Council failed to comply with its Public Sector Equality Duty ("PSED") ("Issue 2"); and that it
(c) Failed when making the October Decision to take into account relevant considerations including (i) the impact of the closure of Herrick Lodge on the Claimant's future Article 8 ECHR rights; (ii) the alleged breach of the Claimant's legitimate expectation of a home for life at Herrick Lodge; and (iii) the Claimant's likely future care needs and whether these can be met in alternative potential placements if Herrick Lodge were to be closed ("Issue 3").
In response, the Council contends:
(a) That the claim was not brought promptly, and no good reason has been put forward to justify the delay so that permission should be refused;
(b) In respect of Issue1, that it did make adequate inquiries and informed itself adequately on matters relating to first, the overall present and future levels of demand for residential care home provision, and second, the nature of demand for residential care before making the October Decision. In any event, its approach to its inquiries was not irrational or Wednesbury unreasonable and so the Claimant's challenge cannot succeed;
(c) In respect of Issue 2, that it showed "due regard" to achieving the various statutory objectives and the PSED detailed in s149 (1) (a), (b), and (c) EA prior to making the October Decision as is shown by the investigations and inquiries it carried out before making the October Decision. The duty to have regard to the need to achieve these statutory objectives was central to the Council's decision-making from the outset as was shown by the fact that the decision-maker Councillor Patel personally investigated the impact that the proposed decision to close, inter alia, Herrick Lodge would have on the current residents of Herrick Lodge including the Claimant because of their culinary, religious, cultural, linguistic, and culinary requirements as Gujerati—speaking British Asians and their need to be within easy travelling distance of their relatives. In addition, the October Decision did not have a disproportionate impact on the "substantial Asian minority" in Leicester and so the level of regard in the context of the protected characteristic of race is low; and
(d) In respect of Issue 3, that it did not fail to have regard to any relevant consideration when making the October Decision. In relation to the three asserted relevant considerations, it is contended that:
(i) The Claimant's decision to make the October Decision did not and might not breach Article 8 ECHR. The Council took into account the likely impact that a move would have on the private lives of the Claimant and the fellow residents as their culinary, religious, cultural, linguistic, and culinary requirements as Gujerati—speaking British Asians together with their need to be within easy travelling distance of their relatives;
(ii) Insofar as the Claimant had an alleged legitimate expectation to remain in Herrick Lodge for life, there was no basis for such an expectation as there was no clear and unambiguous representation to that effect. In any event, even if that is wrong and there was such an expectation, it could be (and would on the facts of this case be) defeated by an overriding interest which was the cost to the Council of running Herrick Lodge with its declining numbers; and
(iii) The Council was well aware of the Claimant's likely future care needs and its statutory duties to her. These were taken into account as part of the decision-making process and would again be taken into account when the Claimant has to be moved. She will not be moved until a suitable residential home in Leicester has been identified after an assessment and after careful transition planning.
A rolled-up hearing was ordered and I heard both the application for permission and the substantive hearing. I have been greatly assisted by the excellent oral and written wide-ranging submissions from Ms Helen Mountfield QC, Counsel for the Claimant and from Mr. Andrew Sharland, Counsel for the Council. I know how concerned the Claimant and her fellow residents at Herrick Lodge as well as their families are about the uncertainty caused by the decision to close Herrick Lodge. I had wanted to hand down the judgment speedily. Unfortunately, as I explained to the parties in late July, due to unforeseen factors unconnected to this case, it was not possible for me to hand down this judgment before the Long Vacation as I had originally hoped and expected to do. Thereafter, holiday plans of Counsel and my holiday plans delayed the handing down from August until the end of the Long Vacation.
What this case is not concerned with
It is necessary to stress three matters with which this case is not concerned. First, my role on this application is limited because a judicial review application, such as the present application, is not an appeal on fact. Indeed, this was pointed out by Richards J (as he then was) in Bradley v The Jockey Club [2004] EWHC 2164 QB in a passage which was expressly approved on appeal in that case by Lord Phillips MR [2005] EWCA Civ 2164 paragraph 17 when, giving the judgment of the Court of Appeal. Richards J had observed in relation to a judicial review application that:
"37… the function of the court is not to take the primary decision but to ensure that the primary decision-maker has operated within lawful limits… the essential concern should be with the lawfulness of the decision taken; whether the procedure was fair, whether there was any error of law, whether any exercise of judgment or discretion fell within the limits open to the decision-maker, and so forth…"
Second, I am neither required nor qualified to comment on the substantive merits or otherwise of the decision to close Herrick Lodge or any of the other care homes in Leicester. Therefore, I will not do so.
Third, the Claimant accepts that the Council's lengthy and detailed consultation was both adequate and lawful. So there is no challenge to the consultation process which the Council had undertaken leading up to the October Decision.
Factual Background
On 3 November 1999, the Claimant, who was then aged 87 years of age, entered Herrick Lodge on the basis of an Individual Placement Agreement. She speaks Gujarati, but she does not speak English. When the...
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