The Queen (on the application of AB by his litigation friend MB) v Slough Borough Council
| Jurisdiction | England & Wales |
| Judge | Benjamin Douglas-Jones |
| Judgment Date | 08 July 2022 |
| Neutral Citation | [2022] EWHC 1772 (Admin) |
| Docket Number | Case No: CO/4295/2021 |
| Court | Queen's Bench Division (Administrative Court) |
| Year | 2022 |
[2022] EWHC 1772 (Admin)
Mr Benjamin Douglas-Jones QC SITTING AS A DEPUTY JUDGE OF THE HIGH COURT
Case No: CO/4295/2021
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Galina Ward QC (instructed by Watkins and Gunn) for the Claimant
Peter Oldham QC (instructed by HB Public Law, Harrow Council) for the Defendant
Hearing dates: 24 May 2022
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
Covid-19 Protocol: this judgment was handed down by the judge remotely by circulation to the parties' representatives by email and release to The National Archives. The date and time of hand-down is 10.30am on Friday 8 July 2022
Benjamin Douglas-Jones QC, sitting as a Deputy Judge of the High Court:
Introduction
Subject to any further order, the court directs that nothing shall be published in respect of this claim that might identify the claimant either directly or indirectly.
The Claimant, AB, was born prematurely on 21 July 1981. He suffered heart failure when he was three years old. He suffers from spastic quadriplegia, learning difficulties, osteoporosis, curvature of the spine, and a number of other medical conditions. He is now 40 years old and is wholly dependent on his sister, MB, and his mother, who is now 78. The Claimant lives in a ground floor bedroom as he cannot access stairs. He uses a wheelchair or walking frame to move around. He needs flat surfaces and easy access, particularly to toilet facilities.
The Defendant, a Borough Council, provided day and residential care facilities for its inhabitants, one of which was the Priors Day Centre in Slough (“Priors”). On 20 September 2021, the Defendant decided to close a number of care facilities, including Priors.
By a claim issued on 20 December 2021, the Claimant, with permission of Mr Clive Sheldon QC sitting as a Deputy Judge of the High Court, claims a judicial review of the decision to close Priors (“the Decision”). The grounds on which judicial review is sought are that the Decision:
(1) was based on an unlawful consultation process that did not fulfil the requirements of taking place at a formative stage, giving sufficient reasons for the proposals to permit intelligent consideration and response, and/or conscientiously taking the product of the consultation into account.
(2) did not take into account a number of relevant considerations, including in particular the needs of the current service users; and
(3) has led to an ongoing unlawful failure to meet AB's eligible needs under the Care Act 2014 (“the 2014 Act”).
Through the Claim, the Claimant had challenged the Council's decision to close other day centres as well as Priors. Permission was limited to the decision to close Priors. The Claim proceeded before me on that basis.
The hearing
The Claimant supported the claim with witness statements of MB dated 17 December 2021 and 19 April 2022 (“MB's first witness statement” and “MB's second witness statement”, respectively).
In support of the grounds for judicial review the Claimant relied on assessments of the Claimant's needs, carried out by the Defendant's Community Team for People with Learning Disabilities (“CTPLD”) on 16 April 2020 (“the 16 April 2020 assessment”), 10 December 2021 (“the 10 December 2021 assessment”) and 3 February 2022 (“the 3 February 2022 assessment”).
The Defendant in turn relied on witness statements of Marc Gadsby, the Defendant's Associate Director of Adult Operations, dated 10 January 2022 (“MG statement 1”) and 25 March 2022 (“MG statement 2”), Sajid Hussain, a Senior Business Support Officer of the Defendant, dated 25 March 2022 and Sameer Maganji, Practice Lead of the Defendant's CTPLD, dated 28 March 2022.
Background
After attending special schools and college, the Claimant started attending Priors five days a week. He did so for many years — from 2004 until 1 April 2020, when Priors was closed during the first Covid-19 national lockdown which began on 23 March 2020.
The Claimant was happy at Priors. His family was confident that all his needs were being met there. The centre had all the facilities he needed, including appropriate toilet facilities. He was provided with stimulation and activities to help him develop and maintain his independence and mental well-being. During the Covid-19 lockdown period the Claimant was provided with services through Priors.
A report in relation to Adult Social Care Provider Services, dated 10 September 2021, was prepared for the Defendant's Cabinet meeting of 20 September 2021 (“the Report”). The Report set out that three options were considered. Option 1 was to reopen care services which were closed during the pandemic. Option 2 was to “[m]ove away from being a direct provider of care … and to commission alternatives to meet people[']s needs.” Option 3 was to “[r]e-model and operate a significantly reduced provider services offer.” The Report set out that options 1 and 3 were “discounted and not progressed as part of the review as the council[']s ambition of delivering more personalised services to meet people[']s needs and delivering value for money would not be achieved.”
On 20 September 2021, the Defendant's Cabinet made the decision to close services including Priors.
Facts
Defendant's Adult Social Care transformation programme
In MG statement 2, Mr Gadsby explained how in 2020 the Defendant began a programme to transform Adult Social Care. The stated aims were to increase “… efficiency and value for money through a range of improvement projects within Adult Social Care operations and commissioning;” and to deliver financial savings of £9,121,000 across 3 years (2021–2024). Mr Gadsby explained how the programme was to be “… delivered with the support of PeopleToo, a specialist consultancy providing support to organisations in local government and health, who have been working with the Council since October 2020.”
The 16 April 2020 Care Act 2014 assessment
In the 16 April 2020 assessment it was recorded that the Claimant:
“… is accessing Priors Day Centre for five days a week [the present tense is used, although due to the Covid-19 lockdown, the Claimant had not accessed Priors for 15 days at the date of the assessment] and is supported by his parents when at home. AB is living with parents in his parents' house. He has an older brother and sister, and his sister is providing all of the necessary care and support to AB as his mum has physical problems restricting her to provide personal care to AB. AB lives in a downstairs bedroom in the family home since 2008, with fully adapted bath and toilet which was constructed with funding from DFG.”
In response to the pro forma entry: “Details of what you would like to improve or change socialising, contributing to society”, the following is recorded:
“AB has expressed that he wants to continue accessing Priors Day Centre. The family would not want to make any changes to this arrangement as is [sic] benefiting AB and is giving the family a break while he is at the day centre.”
In relation to ongoing support, it was set out in the context of the Claimant's mother's caring role:
“… The family would like Priors Day Centre to continue to support AB for 5 full days per week as this relieves a lot of pressure off [AB's mother] as a main carer.”
The Claimant's needs were recorded as being in global needs band 6, the highest band, meaning: “He/she cannot be safely left alone during the day or at night, needing a high level of 24-hour support. He/she may need specialist care and support and/or may need the support of more than one carer.” The allocation of funds required to meet the Claimant's needs for “Staying safe & social activities / relationships” was said to be £250 per week.
In MG statement 2, Mr Gadsby set out that the average cost for needs of an individual was £180 to £270 based on a disability day centre with 20 to 30 users. This individual cost was additional to the cost of “provider” (i.e. residential and day) services for the financial year ending 2021, of £970,800.
MB, in her evidence, was critical of the 16 April 2020 assessment as it refers to the Claimant living with their parents notwithstanding that their father had died some seven years ago.
February 2021 – the Defendant's revenue budget report
In February 2021, the Council set its budget on the basis that, working with PeopleToo, a saving of £500,000 could be made from “remodelling” the day services, split over two years — £350,000 in 2021/2022 and £150,000 in 2022/2023.
Mr Gadsby set out in MG statement 2, that the revenue budget report “confirmed that individual service decisions would be subject to separate officer or Cabinet approval, taking account of the statutory framework, any requirement to consult and consideration of the overarching duties and that a contingency had been set aside to deal with a risk that the savings could not be met within the specific statutory framework.”
April 2021 — Review of Council provided services including day centres
In MG statement 2, Mr Gadsby set out that in April 2021, as part of the transformation programme, a review of “all internal council provided services (day centres, residential home[s] and respite homes) was agreed, as it was identified that the cost of delivering these services was significantly above the market average and the services could potentially be delivered within the community and by alternative providers in the market. The day centres were closed at the time due to Cov...
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