R (on the application of LH) v Shropshire Council [2014] EWCA Civ 404

LH was 64 years old and had a learning disability.  She had been assessed as having substantial care needs and had been using the services of Hartley’s Day Centre in Shrewsbury.  She attended the centre on a regular basis and had long-standing friendships with other users of the day centre.  Shropshire Council decided to close that day centre partly due to budgetary constraints and partly because of encouragement from central Government to give disabled people their own personalised budget for spending in relation to their disability.

The appeal concerned the extent of consultation required when a local authority reconfigures its day centre services in its area and then decides to close a day centre.  Shropshire Council contended that it consulted generally about the new system and made it clear that some centres would close.  LH contended (by her litigation friend) that she and others should have been consulted in relation to the closure of Hartley’s Day Centre itself before it occurred.  There was also an allegation of failure to comply with the statutory Public Sector Equality Duty as contained in section 149 of the Equality Act 2010.  The issue before the Court was how specific that consultation should be.

In the absence of any express or implied statutory duty to consult, the common law obligation in public law, to consult, stems from the expectation that a public body making decision affecting the public will act fairly.  If a local authority withdraws a benefit previously afforded to the public, it will usually be under an obligation to consult with the beneficiaries of that service before withdrawing it.  That obligation required that there be a proposal, that the consultation took place before a decision was reached, and that responses be conscientiously considered.

The question in this case was whether a proposal for reconfiguration of services provided to adult users, which made clear that some unidentified day centres were going to have to close, was a sufficiently concrete proposal to put out for consultation, or whether it was necessary for the local authority to mount a fresh consultation in relation to any individual day centre which it sought to close.

The requirement at common law of consultation if public services are to be withdrawn was recognised in R v Devon County Council, ex parte Baker [1995] 1 All ER 75In that case Dillon LJ (at page 83c) said that the essentials of consultation in the context of residential homes were:-

“1. that the residents should have known that closure of the homes was under consideration well before the final decision to close them was made;

2. that the residents should have had a reasonable time to put to the Council their objections to the closure of the homes; and

3. that the residents’ objections should have been considered by the Council.” 

He then concluded that 5 days’ notice was not sufficiently early notice that closure was under consideration nor did it give long enough for affected persons to make representations.  Simon Brown LJ agreeing (at page 91e-f) said:-

“… five days’ notice of the proposed closure of Ridgeway House gave the residents wholly insufficient opportunity to make such representations as they would have wished to make in favour of their house being kept open in preference to others.  I do not say that they needed to be consulted individually. Nor do I say that they needed to be informed of anything like the entirety of the material which would clearly be relevant to the Council’s eventual overall decision. It would have been sufficient to consult the body of residents as a whole, notifying then of the need to close a proportion of the county’s homes and inviting them to indicate what particularly they saw as the merits of their home and what reasons they would wish to advance for its retention in preference to others.”

 

The court held that if this case “….had been concerned with residential homes a consultation along the line proposed by Simon Brown LJ would have been required” (paragraph 25).

Lord Justice Longmore stated:

“Although closure of a residential home is clearly more serious than closure of a day centre and, although it can be said that the closure of Hartleys does not amount to an outright withdrawal of a service because the Council will discuss with users alternative courses of action which are available within their personalised budget, closure of day centres is undoubtedly a serious step to take from the perspective of their users and those who care for them. For the carers, the day centre will always afford a welcome respite. Even in the Devon and Durham case there was not an outright withdrawal of the service since residents would be accommodated in other homes. In all the circumstances I can see no satisfactory distinction between this case and that case.”

The common law duty to consult arose when a person had an interest which the law decided was one which ‘should’ be protected by rules regarding procedural fairness.  Fairness was a matter for the court to decide. If fairness required the local authority to consult regarding individual closures, the local authority could not say that it could choose a method of consultation which by-passed the question whether a particular day centre should be closed.  Provided that the local authority consulted with the staff, users and relatives of a particular centre which was to be closed, the extent to which it could choose to consult more widely was essentially a matter for the local authority.

The court held that in this case it was clear that Shropshire Council had taken a great deal of trouble to explain its reconfiguration of adult day care and, in particular, the application of personalised budgets. The consultations undertaken in that respect were wide-ranging, and no doubt expensive and time-consuming to conduct. Shropshire Council had only mistaken its obligations at the last stage, but the Court’s conclusion was that the omission to consult the users and relatives on the closure of Hartley’s Day Centre before it was formally decided to close it had been unlawful.

Under section 149(1) of the Equality Act 2010 the need to eliminate discrimination of the disabled, to advance equality of opportunity between persons having a disability and those not having a disability and to foster good relations between disabled and non-disabled persons were all matters to which Shropshire Council “must have due regard”.  The services provided by Shropshire Council and the widespread consultations that took place in relation to the reconfiguration of the adult day care services showed that it did have due regard to its duty in that respect.  The Court held that it could be said that because there was a failure to consult about the closure of Hartley’s Day Centre that showed that there had been a failure to comply with its public sector equality duty, but the Court held that there had been no wider failure than that.  If the Court had held that Shropshire Council had complied with their duty to consult at common law, it would not have held that there was a breach of the statutory duty under the Equality Act.

Hartley’s Day Centre had been closed and all the staff had been dispersed and in those circumstances the Court did not consider that it would be consonant with good administration to quash the closure decision or to order Shropshire Council to conduct a consultation about its closure.  That would be an expensive and over-legalistic exercise which justice to LH did not require especially as there was no reason to suppose that Shropshire Council was not performing its duty to assist LH to find alternatives to Hartley’s Day Centre within her personalised budget.

The Court formally declared that, in breach of its common law duty, Shropshire Council failed to consult the users of Hartley’s Day Centre and their carers before deciding to close the centre.

The appeal was allowed.

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