Bishop [The Queen on the application of] v London Borough of Bromley [2006] EWHC (Admin)

This was an application for permission to apply for judicial review of the decision of Bromley London Borough Council (the Council) to close the Belle Grove Day Centre, a local authority day care facility in the Borough.

The claimant was the daughter and carer of one of the residents who was a service user attending the centre.  The proposed closure would directly affect the 46 service users who regularly attended the centre.  The closure was opposed by service users, carers and relatives and a local campaign group, the Community Care Protection Group.

The Council, through its Policy and Development Scrutiny Committee (PDS), consulted all service users on the proposed closure.  Its intention was to make a saving of £50,000 per annum, by moving the service users to an alternative day centre service nearby “at comparatively low cost, thus releasing some saving whilst maintaining the same level of service.”  Future annual savings were expected to be about £66,000.  A consultation meeting took place between the Council and service users so that they could make their views known.  The Council responded to the consultation in a review report which noted that the diseconomies of scale for small day centres such as Belle Grove led to high unit costs.

As part of its review, the Council re-assessed the needs of all service users who attended the day centre and explored options for alternative services should it be closed.  The review concluded that needs could be provided for at two other day centres in the area.  It stated that if the closure were to go ahead then a more detailed plan would be developed for each service user and their carer to ensure that they would be able to maintain their current pattern of attendance.

At a final meeting, it was decided by the Portfolio Holder (elected member) for Social Care Health and Housing of the Council that Belle Grove Day Centre should closed subject to alternative day services being made available for the current service users, and closure would not proceed until such arrangements were in place.  The PDS upheld this decision and service users were informed of the decision.

There were 4 grounds of challenge by the claimant:

(i) the decision to close Belle Grove was irrational.  The Council had no strategic plan for the delivery services at day centres and without such a plan the closure of one unit made no sense.
(ii) the Council failed to have regard to the special needs of service users at Belle Grove.  This included transport arrangements and the loss of social cohesion.
(iii) The decision of the PDS in ratifying the Portfolio Holder’s decision was ultra vires.
(iv) The decision violated the Article 8 rights of the service users at Belle Grove

The court commented that there may have been a lack of sensitivity in the way in which the proposed decision was explained to service users and carers and that they may have been left with a strong sense of grievance at the way the process was handled.  However, in relation to the first ground of challenge, a lack of sensitivity was not the same thing as irrationality and illegality.  Those taking the decision knew the needs of the service users and that their needs were likely to have been met if they were transferred to an alternative day centre.  The question of transport arrangements was addressed and there was reasonable confidence that the journey times to the centre could be kept within acceptable bounds.
In relation to the second ground of challenge, it was clear to the court that individual reviews of each service user’s care plan were undertaken and an outline care plan was developed for each, with service users and carers being informed, on an individual basis, if an alternative to Belle Grove could not be found.  It was not necessary for the completed re-assessment to have been carried out before consulting with service users and carers on the decision.  Only in exceptional cases should such an assessment be required before the decision to close a service.  R v North East Devon Health Authority ex parte Coughlan (1999) EWCA applied.  ‘Exceptional cases’ meant, for example, those involving service users with severe and profound learning disabilities where a multi-agency assessment was indispensable to determine whether the services they needed could only be provided by the NHS or whether other alternatives would be appropriate and cost-effective.  This was not the case at Belle Grove.  Although the service users were vulnerable, it was not a special case in the sense required by Coughlan.

The court rejected the third ground of challenge on the basis that the PDS Committee had been delegated certain functions by the Council to make decisions and certain non-executive decisions could be delegated by the Committee  to the Portfolio Holder. In any event, the court held that if the decision had come before the full Council it would have ratified the decision of the PDS Committee.

In response to the fourth and final ground of challenge, the court found that Article 8(1) was not engaged.  The effects of transferring day care services to another centre were not sufficient to engage Article 8(1).  There was not a sufficient element of a particular home life involved in the decision-making process.  R (Dudley and Whitbread and others) v East Sussex County Council (2003) followed.  Even if Article 8(1) was engaged, the court held that interference would have been justified under Article 8 (2) as required for the economic well-being of the Council and those in need of services.

Permission to apply for judicial review refused.

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