The Queen (on the application of AA) (by her mother and litigation friend BB) v Rotherham Metropolitan Borough Council
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Jefford DBE |
| Judgment Date | 19 December 2019 |
| Neutral Citation | [2019] EWHC 3529 (Admin) |
| Date | 19 December 2019 |
| Docket Number | Case No: CO/3297/2018 |
| Court | Queen's Bench Division (Administrative Court) |
[2019] EWHC 3529 (Admin)
Mrs Justice Jefford DBE
Case No: CO/3297/2018
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Jamie Burton and Mr Tom Tabori (instructed by Irwin Mitchell LLP) for the Claimant
Ms Jenni Richards QC and Mr Adam Boukraa (instructed by Rotherham Metropolitan Borough Council Legal Services) for the Defendant
Hearing dates: 13 and 14 May 2019
Approved Judgment
The Claim
At a meeting on 21 May 2018, the defendant, Rotherham Metropolitan Borough Council (“the Council”), decided, amongst other things forming part of its plans for provision for adults with learning difficulties, to close the Oaks Day Centre at Wath (“the Decision”).
The claimant is a customer of the Oaks Day Centre. She is 27 years old. She has significant needs, in particular because of her autism, and has attended the Oaks Day Centre 5 days a week since the age of 19. Her mother is her primary carer and she patently has a loving and supportive family. The Day Centre is extremely important to her, and in turn, her family. The claimant is happy there – she has friends there whom she has known since school or who have also attended the Day Centre for a long time and the staff are also like friends to her. She finds it difficult to make friends and these relationships are of great importance to her.
It is not in issue that the Council is the authority with responsibility for the claimant's care needs under the Care Act 2014.
It is also not in issue that the decision to close the centre was taken after a lengthy period of consultation although the focus in this claim is on the second consultation that took place from 28 September 2017 to 22 December 2017. The claimant and many others have opposed the closure of the Day Centre throughout these periods.
Permission to bring proceedings for the judicial review of the Council's decision was sought on a number of grounds. Permission was granted on ground one only which was subdivided into two grounds. As formulated in the Statement of Facts and Grounds they were both aspects of the alleged failure to comply with the requirements for a lawful consultation, framed as follows:
“Despite stating “RMBC would consider and take into account the learning from the consultations that have taken place”, the consultation was unlawful in two significant respects. First, the options presented to the consultees and to the decision makers omitted an option of increasing flexibility, the range of options for care provision, and access to the community whilst retaining day centres. Second, contrary to the fourth Gunning criterion, the Decision was reached following defective consultation, inaccurate presentation of consultation responses in the consultation analysis …. and by the council officers to the decision-makers (the Cabinet and Commissioners), resulting in failure to take conscientiously into account consultation responses, particularly the level of opposition.” (My emphasis).
Each of these grounds requires some further elucidation but it is convenient first to set out the relevant history of events.
In addition to the documents, there were before me the following witness statements.
i) On behalf of the claimant, statements of BB (the claimant's mother); SH (her sister); Valerie Smith, Barbara Barnard, Mary Beck, Patricia Hewson and Monica Hudson, all mothers or siblings of customers of the Addison Day Centre; and Mavis Reed and Carol Lee, mothers of customers of the Oaks Day Centre.
ii) The claimant also sought permission to adduce further statements responding to matters raised in the defendant's statements and/or commenting on the consultation process. The application was opposed and I said that I would receive those statements de bene esse. In the event, little reliance was placed on them and, having considered them, I do not regard them as adding anything of significance to the facts set out below.
iii) On behalf of the defendant, statements of Councillors Christopher Read, David Roche and Brian Steele; a statement of Anne-Marie Lubanski, Strategic Director of Adult Care and Housing; a statement of Dr Jill Aylott of Aceppe; a statement of Jayne Metcalfe, at the material time Operational Manager for the in-house Learning Disability Provider Service at the Council; a statement of Sally Ferguson-Wormley of Speakup.
The events leading up to the Decision
From about April 2015, the Council began to consider changes to its learning disability services. In November 2016, the Council's cabinet approved an officer's recommendation that it should consult on the reconfiguration of those services. That consultation (“the first consultation”) took place between 5 December 2016 and 2 February 2017.
The lead up to the decision to undertake that consultation included the following. Firstly, at a Cabinet/Council Decision Making Meeting on 14 March 2016 the Council was asked to approve a document entitled “Vision and Strategy for Adult Social Care”. I note that the document addressed adult social care generally and was not limited to those with learning disabilities. Under the heading “Background” the document stated that the Care Act 2014 “reinforces a direction of travel that has been evolving for over a decade with a steady move away from traditional services to more personalised approaches”. Rotherham, it said, had not kept up with the pace of change. It set out outcomes and strategy which were further described in an annexed report by Professor Graeme Betts, then Interim Strategic Director of Adult Care and Housing. That report noted that: “While the direction of travel has been reasonably consistent, the pace of change has accelerated over the last few years as the demand for more personalised services continues to grow, traditional models of care are seen to be outdated and not delivering independence, choice and control … the approach to Adult Social Care is increasingly based on an assets model – identifying with the person what they can do, what they do have, who they know and which community groups they are linked into, what their family and friends can do as carers and what the wider communities can offer…” with a focus on outcomes. These changes were said to be reinforced by the Care Act 2014.
The Care Act 2014, Part 1 Care and Support, at section 1 provides:
“(1) The general duty of a local authority, in exercising a function under this Part in the case of an individual, is to promote that individual's well-being.
…
(3) In exercising a function under this Part in the case of an individual, a local authority must have regard to the following matters in particular –
(a) the importance of beginning with the assumption that the individual is best-placed to judge the individual's well-being;
(b) the individual's views, wishes, feelings and beliefs;
….
(e) the importance of the individual participating as fully as possibly in decisions relating to the exercise of the function concerned and being provided with the information and support necessary to enable the individual to participate.
…”
The Council (through Professor Betts) had, by this time, also commissioned Speakup Self Advocacy to facilitate a series of workshops for people with learning disabilities and/or autism and their families. Speakup describes itself as an organisation providing advocacy and training to improve the lives of those with learning disabilities or autism and, as set out above, in these proceedings, Sally Ferguson-Wormley of Speakup provided evidence about their involvement. The plan was called “Together for Change” and resulted in a series of workshops led by Janine Moorcroft, the Head of Service for Adult Care Services at the Council. There was a full day workshop at the Oaks Day Centre in February 2016. Ms Ferguson-Wormley's evidence was that the session started with a presentation by Ms Moorcroft which focussed, amongst other things, on why services needed to change. In the afternoon, people with learning disabilities, autism or both and their family carers split into workshops and discussed “(a) If Day Services have to change in the future then what is important to you? (b) Why is it important? (c) What works well at the minute? (d) What doesn't work well? (e) What are your hopes, fears and worries about change? (f) How can we work together in the future?”. 100 people attended the workshops including 52 carers and 48 people with learning disabilities.
This resulted in a report dated 9 March 2016 by Speakup Self Advocacy “Together for Change – Changing Day Services in Rotherham. The view of people with learning disabilities and their carers.”
The report was annexed to the officer's report for the Council's Cabinet meeting in May 2016. The paper prepared for the meeting sought approval to implement a strategic approach to the commissioning and delivery of services for people with a learning disability within Rotherham. The approach was said to be based on a number of matters set out in bullet points, namely “The principles set out in Valuing People; Legislative requirements set out within the Care Act; Good practice within other parts of the country; What people have told us about their needs; A need to modernise and deploy resources as effectively as possible.”
At paragraph 2.4 of the summary sheet, it was recommended:
“That a range of options will need to be developed in order to meet the assessed needs of those customers who are eligible for services and that these are likely to move away from large building based traditional services to more personalised community options.”
I do not quote from the accompanying...
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