J & Ors, R (on the application of) v Southend Borough Council [2005] EWHC 3457 (Admin)

Case No CO/3283/2005

[2005] EWHC 3457 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

THE ADMINISTRATIVE COURT

Venue Royal Courts of Justice

Date Friday, 5th August 2005

Strand

London WC2

B E F O R E:

MR JUSTICE NEWMAN

Between

THE QUEEN ON THE APPLICATION OF J AND OTHERSClaimant

-v-

Between

SOUTHEND BOROUGH COUNCILDefendant

Computer-Aided Transcript of the Stenograph Notes of

Smith Bernal Wordwave Limited

190 Fleet Street London EC4A 2AG

Tel No: 020 7404 1400 Fax No: 020 7831 8838

(Official Shorthand Writers to the Court)

MR R GORDON QC & MR P BOWEN (instructed by Messrs Bindman & Partners) appeared for CLAIMANT

MR D UNDERWOOD QC & MR R BHOSE (instructed by Southend Borough Council) appeared for DEFENDANT

J U D G M E N T

[1]MR JUSTICE NEWMAN: This action is brought by four claimants who are among scores of persons suffering from severe learning disabilities but who have enjoyed the facilities and services offered at day centres in the area of Southend on Sea Borough Council (the Borough Council) for many years.

[2]Two day centres, namely the Avro Centre and the Maybrook Centre are at the heart of the proposals which have been made subject of challenge in these proceedings. The proposals involve the closing of the Maybrook Centre and the transfer, after assessment of those ordinarily resident in the borough, of those persons to the Avro Centre. These moves will cause disruption to the long settled practice and lifestyle of these claimants and many others. These claimants will no longer attend the Avro Centre, where they have attended for many years. Everyone affected by these proposals, which involves modernisation schemes, is very vulnerable. Relationships developed through long-term practice and long pursued activities are an important aspect of their well-being. Continuity and stability are important but that said, modernisation brings advantages. What is proposed, in this case, does not mean that there will be a withdrawal of care services for these vulnerable people, but a different type of service will be provided. Changes of this nature bring forth burning responses from those affected, including their carers. The responsibility for handling changes with a potential for affecting the well-being of vulnerable people is an onerous one, undertaken by those professionals involved in local government and in the provision of care services by local government. Plans for the closure of the Maybrook Centre and the consequential withdrawal of Avro as a centre for those not ordinarily resident in the borough, were set for August 2005. The plans have been foreshadowed for nearly two years. It is clear from the evidence in the case that neither Essex County Council, nor the Borough Council, have proceeded without recognising the likely impact of change upon in particular those, like the claimants, who have for a number of years enjoyed facilities at the Avro Centre. But questions of law have been raised as to whether what has been done is enough, and in particular whether the Borough Council has acted unlawfully. Essex County Council, although joined, have not participated in this hearing or, in effect, no allegation has been pursued against them.

[3]The Borough Council's proposals have been well known to service users, their parents and carers from at least about October 2004. Unsurprisingly, news also has been imparted to those attending the Avro Centre throughout the period of time since then. That is exactly what one would expect. It was no doubt one of the main topics of conversation. Essex County Council and the Borough have worked together throughout. This appears among the witness statements, but taking the second witness statement of Jane Boughton, the locality operational manager of the learning disabilities team for Essex County Council, one can see there that efforts have been made in meetings with officers from Southend to work out how they could support people, so that they could maintain the friendships, which they have made over the years, when the time comes and they are no longer able to attend Avro or Maybrook. She refers to the fact that some people have already had opportunities to meet up outside of the day care setting in various clubs, at MENCAP organised activities, and during break times at the local colleges. New support services have been planned in order to enable people to meet up. Because of the need which is recognised to ensure that people should be able to meet up with friends, plans will be made on an individual basis. Essex County Council are planning to commission a few hour's community sports service for one or two people who live at home with their families so that they can be supported to spend time with their friends perhaps participating in shared leisure pursuits. For example, if the friend is a Southend service user, Essex will work with the Southend community team to make it possible.

[4]Arrangements have already been reached and discussed with some of the claimants and their carers with a view to discussing how they will be able to maintain their friendships. She states:

"For all those people who leave Avro and Maybrook, both Essex people and Southend people, there are also plans for future social opportunity to take place once a week. This will enable named people to drop in and meet with one another. As this is in still in the planning stage, I cannot go into further detail but there is a commitment from both Essex and Southend to enable this to happen."

Her witness statement also goes on to draw attention to a full range of facilities and services which can become available to those who attended the Avro and Maybrook centres.

[5]These proceedings were not commenced until 23rd May 2005. An eight page letter from Messrs Bindman solicitors, called into question the legality of the action which had been taken and gave a wholly unrealistic period of time for the defendants to respond, namely by 4pm the following day. The claim was brought nearly two months after a full Council decision, and about 3-and-a-half months after a Cabinet decision of 15th February 2005. The delay and the bringing of the claim has had a hugely adverse impact on the smooth implementation of the Borough Council's modernisation scheme. Actions such as this cause great uncertainty to service users, including many other service users who have different interests and are affected by a hold up, and that is not to say the impact that there is upon the staff. That is also not to say that there is expense involved in holding up proposals such as this. In reality, for two years, carers, service users and staff have been engaged in establishing a proposed new service. These proceedings have cast that into uncertainty.

[6]Let me make something clear; I should not be misunderstood. This is not a criticism of the claimants who are entitled to access to the court, and they have been given permission to apply for judicial review. Nor should I be taken to be underestimating the sincerity of their belief in the cause which underlies these actions. If criticism is due, and in my judgment it is, it is to be directed to the absence of a realisation by those acting on behalf of the claimants that each week of delay after the relevant decisions affected not one, the interests of the claimants, but the interests touching hundreds of people and the administration of good practice In local government. It is a cardinal principle in this court in connection with judicial review proceedings, over matters such as this, that not just promptitude is required, namely action within the acknowledged timeframe of three months, but urgent action. The urgent 24 action required of the defendants would have been better reflected in the conduct of the matter on behalf of the claimants.

[7]The court has been informed that solicitors in this matter were first seen on behalf of the claimants in mid-February 2005. As I have said, proceedings were not issued until 23rd May 2005. The result of that was that the permission application was not before Wilkie J at an oral hearing until the beginning of July. The closure of the Maybrook Centre has been advertised as a likely closure to take place in August 2005 for months. The fact of the matter is that because of the timeframe which has been forced upon the court this case has come into the first week of vacation. As far as the court is concerned, it has come in on the last two days of this particular week and it has led to a position in which -- with the co-operation of counsel for which the court is always indebted, and expresses it on this occasion -- a judgment is having to be delivered on this afternoon, on a Friday afternoon, in order to ensure that people know what the position is. None of this provides the proper context in which matters, felt so deeply by those involved, should be resolved.

[8]I have already referred to the efforts which have been made by Essex County Council and the Borough Council to move towards a smooth transition for all those involved in these changes. Apart from the claimants and their relatives and carers who are strongly opposed to the changes, there are those who have seen the changes with enthusiasm, giving rise, as they do, to the opportunity for their needs to be met in a improved and modernised manner and carried out in accordance with what the Government has laid out as its national desires in respect of this area of care provision, namely in a White Paper called "Valuing People." The step in closing Maybrook is the first step in the overall strategy decided upon by Southend. By closure, necessary funds will be released to enable the commission and development of new services elsewhere for service users. Without the closure, there will not be these funds and it will not be able to deliver the strategy which is envisaged by "Valuing People". The people at Maybrook who are as affected in these proceeding as others, namely Avro, enjoy day care facilities at the moment which are a paradigm of those which the Government White Paper desires to end. Southend has completed reassessments of needs of each of the 109 service users at Maybrook. Their needs are to be met by directly commissioning services in the community.

[9]I shall give but a few examples of what may occur: if they require pottery or painting courses, Southend will seek to access those directly from providers within the community. Others' needs may be met by having supported employment within the community; for example, office, support or in libraries, cafes and the like.

[10]Avro is particularly suitable for clients with higher dependency levels or where their carers have respite needs and require a safe base for those for whom they care. It is, on all accounts, an exceptional facility which when started was in the advance of its time, but it too must come forward and be considered in the light of such requirements as there are for change and improvement. It is thus not itself free from being in the frame for change. Changes are already being made at Avro to form community based services. After some period of two to three years, there will be a further paper which will go before Cabinet to consider the future of Avro. There is a need which will be fulfilled for the reassessment of those people who attend Avro. It is not clear now whether, after the reassessment, there may or may not be some places still available at Avro for persons who come from outside the borough. The position which had been envisaged was that the Borough Council would not require other local authorities' clients to leave Avro until alternative suitable placements had been identified. As I have indicated, August 2005 had seemed a realistic date for that to be fulfilled. These proceedings have given rise to slippage and it is clear that the County Council may need longer to identify suitable placements, but I am satisfied on the evidence of the witness statements, in particular of Mr Stepney, that this is not a situation in which, should these claimants fail in their judicial review, that the Borough Council will not be alert, sensitive and sympathetic to the needs of individual cases where suitable alternative placements have not been found. The Claimants and the Important Aspects of Their Evidence

[11]In response to the evidence of Mr Stepney, which in effect I have summarised above, Saimo Chahal, the solicitor with Messrs Bindman & Partners acting for each of the claimants has advanced a number of points:(1) That the Avro Centre is exceptional in many ways and was, in its day, a pioneering form of day care provision devising tailor-made educational leisure activities. Very popular with parents and staff. I need only say that there is absolutely no dispute about that:

(2) She levels criticism at the willingness of Mr Stepney and the Partnership Board to listen to the views which were expressed and which were contrary to the Council's policy objectives. One can only observe that, on occasions like this, the court will be surprised if there were not some criticisms but, in my judgment, the observation is not relevant to any matter which I have to consider on this claim:

(3) With regard to meetings with parents and carers, for example a meeting at which Ruth Bull, on behalf of Essex County Council attended, she, Ruth Bull, was shouted down because she refused to answer questions from the audience. She then responded in a confrontational manner and it was not an occasion where there seemed to be the seeking out of the views of clients and carers. This particular piece of evidence is to be seen in the round, and in the light of all the other evidence in the case. As it happens, the court is not required let alone equipped to take account of this particular aspect of the evidence, and no particular reliance has been placed upon it:

(4) Some of the carers, like Mr Healey and Mr Jones, they being the litigation friends of two of the claimants, took the view that they were not being served well by the Councils. That I understand and that I take as being implicit from the position which has been adopted by them in this litigation for which, as I said, as far as this court is concerned in not the subject of any criticism:

(5) That there had been a limited amount of discussion at a meeting in May 2003 which was the Council meeting in particular, in which things were discussed. Again, the court is neither equipped nor required to consider the significance of this particular observation:

(6) She drew attention to some 7,000 signatures on a petition organised by the Evening Echo, which at one stage involved a crowd of a number of people outside the Council debating chamber who were protesting that they had not been heard. I have no reason to doubt that this occurred but again it has, in my judgment, no bearing on the issues that I have to decide:

(7) She makes strong criticism of the evidence of Mr Stepney, suggesting that it had been highly selective in mentioning parts of the White Paper. More than that, she suggested he was being disingenuous in his evidence, in particular in relation to assessments which will need to be done. She criticised him for having misunderstood the White Paper by ignoring aspects of it and what she regards as the ethos which can be drawn from the document, that it was a person centred planning document to assist people to work out what they want and the support they require and that, by helping them to get it, she submits it is not what is happening with the decisions being made by the Borough Council, nor in the way that they have been implemented. One is bound to doubt the appropriateness of this sort of material in a witness statement or affidavit, but in any event it amounts to legal argument which has, in fact, been ably presented by Mr Gordon QC. He has advanced it in less confrontational terms:

(8) So as each of the four claimants are concerned, she says:

"Southend Borough Council should be in no doubt that Essex has not provided alternative suitable services to people like JH, CJ, MA, LF, DM, MC, S, J and R. There are many others in a similar position."

The list of names includes the claimants and others included in her witness statement, where she gives details in relation to those others of how they are going to be affected by the decision to remove the availability of the day care facilities for them at Avro. CJ

[12]CJ is 40 years old and has Downs Syndrome. He is in generally good health and has no mobility problems. He needs 24-hour support with his daily living needs and has little concept of danger. He needs help and support with travel, finances, cooking, community activities and social interaction. He lives in a residential care home and he sees his parents every weekend. He is incapable of managing his property and affairs.

[13]He has attended the Avro Centre for 27 years. Until three years ago, he attended five days a week from 9.30am until 4.30pm. His attendance has altered. His current community care assessment is dated 2nd February 2005 and notes that he needs to have social interaction with people outside of his home environment. He has friends at the Avro Centre and it is said that if he leaves the Avro Centre, there will be little or no opportunity for him to meet his friends. His parents are quite elderly and they cannot foresee it as practical for them to be involved in transporting him from one centre to another in order to see his friends.

[14]It is said in particular by CJ's father, his litigation friend, that he is very concerned as to the effect on CJ on no longer being able to see individuals such as friends and staff on a regular basis. CJ has been very upset and cried when he was informed by the manager at the Avro Centre that he would no longer be able to attend Avro. His father believes that the alternative services which CJ currently enjoys outside of Avro are not well designed or tailor-made in the same way as the services at Avro, and he believes that the Avro Centre is very special. So far as alternative provision in the event that he can no longer attend Avro, this is still unclear. Because the Avro Centre is so special, he and CJ wish that he should consider to attend there. JH

[15]She is aged 40 and suffers from Downs Syndrome. She can communicate verbally but she is not able to communicate her needs fully. Since March 2003, she has moved into residential care as her parents are now getting elderly, being 72 and 75 years respectfully, and they felt that JH should develop greater independence so that there would be an easier transition for her when they were no longer around. She has attended the Avro Centre for the past 24 years. She too has enjoyed what is regarded by the family as quite remarkable advantages and facilities at the Avro Centre. She has made many important friendships there. These include a boyfriend. He lives in a residential home funded by Southend Borough Council and he is a Southend client. She will be extremely distressed if she is unable to see P on a very regular basis, as she currently does. Her father points out that, unlike able bodied people with mental capacity, JH is not able to implement decisions about seeing her friends as and when she wants to. The Avro Centre has provided a forum in which it has been possible to develop relationships and maintain them over a very long period of time. He is of the view that it will be extremely damaging if these relationships are cast aside in the way which he believes Southend and Essex County Council have suggested it is necessary to do. Her current community care assessment is dated 9th March 2005. While it contemplates her leaving the Avro Centre, it does not address what the position will be once she is no longer able to attend there. Mr H and JH would therefore like the facilities at the Avro Centre to continue. MA

[16]She is 44 years old. She has suffered from epilepsy since birth and has incurred brain damage from severe fitting. She is married to a man who suffers with cerebral palsy. They have a daughter aged 11 and all three are cared for by MA's mother-in-law. She has attended the Avro Centre for 26 years. She has established relationships at Avro and has said that it would be virtually impossible for her to maintain regular contact if she no longer attends. She wishes to remain at the Avro Centre. She is not satisfied with the alternative provision which will be not as structured and as satisfactory as that which she has received. There is no current community care assessment in respect of MA, she wishes to stay at the Avro Centre. LF

[17]She is 31 years old and has Downs Syndrome. She is unable to do many simple things for herself, she has attended the centre for 18 years. She has an established friendship there, a boyfriend who is a Southend resident and client. Her only opportunity to meet him is said to be at the Avro Centre because it is difficult for LF's mother to make the necessary arrangements on the weekend. There is a community care assessment in relation to LF and it reveals that she is expressing feelings of anxiety about the future. The Background

[18]On 1st April 1998, the Borough Council became an unitary authority and took over, from Essex County Council, the provision of services for adults with learning disabilities. The service portfolio comprised three residential establishments and three day centres, namely the Avro, the Viking and the Maybrook centres. The Avro, of which I have already spoken, is at Aviation Way in Southend and, as I have already summarised, provides living skills and leisure activities for adults with learning disabilities. Importantly it also serves as a form of respite care for carers, where those using the centre still live with their carers. It is on the same site as the Viking Centre, which caters for clients with additional physical disabilities as well as learning difficulties. It offers a service to those with more profound learning difficulties. The Maybrook Centre is adjacent to Berland House. Maybrook is housed in a building modelled on a light industrial unit.

[19]The transfer of responsibility for providing services to adults with learning disabilities under, inter alia, sections 46 to 47 of the National Health Service and Community Care Act 1990, Part 3 of the National Assistance Act 1948 and section 2 of the Chronically Sick and Disabled Persons Act 1970, took effect by virtue of Article 3 of the Essex (Boroughs of Colchester, Southend-on-Sea, Thurrock and District of Tendering) (Structural, Boundary and Electoral Changes) Order 1996 SI 1996 1875 which transferred functions in relation to Southend to the Borough Council. As a result it became the relevant authority for providing those services for service users ordinarily resident within Southend. It followed from the operation of section 24(5) of the National Assistance Act 1948 and Article 3 of the instrument that, from 1st April 1998, any person who had been provided with residential accommodation under the 1948 Act by the County Council before that date, was deemed for the purposes of the National Assistance Act 1948 to continue to be ordinarily resident in the area in which he was ordinarily resident immediately before the residential accommodation was provided for him. Therefore, any person who had been ordinarily resident within Southend, before being placed by Essex County Council, became the Borough Council's legal responsibility. Otherwise, they remained Essex County Council's legal responsibility, or the responsibility of any others as applicable. As far as this analysis is concerned, the first part of it applies to the position of the first and second claimants, and the third and fourth claimants do not reside in residential accommodation and do not reside in Southend at all. They, as I have already indicated, live with their parents or other family members elsewhere in Essex. So far as all the claimants are concerned, they had had, and they retain, enforceable statutory rights against the Essex County Council which they may exercise to ensure that their needs are reassessed and that those needs are met.

[20]After 1st April 1998, the County Council, in discharge of its duties to each of the claimants, continued to place them at the Avro Centre by arrangement with the Borough Council and, as a result, naturally, Essex County Council paid the cost. Since 1st April 1998, as the relevant authority having responsibility for the residents in its area for the provision of care services, including day care services and having regard to the changing use which was made of its services by the County Council, and having regard to the Government White Paper entitled "Valuing People: A new strategy for learning disability for the twenty-first century", the Borough Council, in full council, reached a decision on 28th March 2005 to:(i) close the Maybrook Centre and

(ii) cease to make provision for other local authority clients, including the claimants, after August 2005.

[21]In summary, the matters taken into account by the Borough Council in reaching that decision can be broken down under the following headings:(1) The contents of a report from consultants instructed by the Borough Council to review the learning disability provision in its jurisdiction. The report, known as the Rho Delta Report, considered the Maybrook Centre "a very traditional adult training centre" which had very considerable potential for change. The principal weakness identified was the emphasis on monotonous light assembly and packaging work which was done there. The report contained options for change which were: the closure of the Avro or the Maybrook centres. It was suggested that this could be undertaken on the basis of the Borough Council ceasing to provide day care services for other local authorities' clients and with a relocation of the Borough Council's clients to the centre which remained open. The general conclusion was that the services being provided in Southend were predominantly old-fashioned in culture, scale and purpose. Against the background of this report, it was also a fact that since 1998 a gradual decline in the use by the County Council of day care services took place. In July 2004, there was a total of 109 users of the Avro Centre made up of 56 Borough Council clients, 45 County Council clients and 8 from other local authorities. To this date, the number of County Council service users has declined slightly. It is currently 42. Further, the number of days attended by County Council service users has fallen since 1999 from 276 days to 154 days.

(2) The second heading under which generically the considerations were taken, was the response of the Borough to the Government White Paper. So far as that paper is concerned, paragraph 7.21 emphasises:

"For decades, services for people with learning disabilities have been heavily reliant on large, often institutional, day centres. These have provided much needed respite for families, but they have made a limited contribution to promoting social inclusion or independence for people with learning disabilities. People with learning disabilities attending them have not had opportunities to develop individual interests, or the skills and experience they need in order to move into employment ... "7.27. Day services should be modernised by 2006. Learning Disability Partnership Boards are required to draw up modernisation programmes by 2002 for achieving this. Plans will address the future role of existing large day centres. The introduction of person centred planning for people using day centres will be a key element for achieving this. People using them should be an early priority for person centred planning."

[22]It is not disputed that the Borough Council has acted in order to implement the contents of the Government White Paper, and it has not been suggested that in so far as it was responding to the report it was taking into account anything other than proper considerations which had to be given to the reorganisation of day care services in the light of the needs of those to whom the service was owed and in the light of the Borough Council's own resources.

[23]The essence of the claim, which is raised by these claimants, relates to the manner in which it has dealt with the claimants who fall into the category of service users, who are the statutory responsibility of Essex County Council and therefore when the Maybrook Centre is closed will not be in the pool of persons eligible to remain at the Avro Centre, and will not enjoy the opportunity which will only be available to those who are ordinarily resident within the Borough Council's area and for whom the Borough Council has a statutory opportunity. In the light of the arguments which have been developed, it will be necessary for me to return and to look with more precision at the nature of the statutory responsibilities which exist in this area as between the Borough Council and Essex County Council. The Course of Events Leading to the Decision of 25th March 2005

[24]Unsurprisingly, the Borough Council and the County Council recognise that the position gave rise to a need for co-operation between them. Any decision by the Borough Council to limit the availability of its service to the County Council service users or indeed to any other authority, was likely to be a matter which was in its interests and the interests of the service providers to discuss; and thus there were discussions. Plainly, the long history of use of the Avro Centre by those who always have been, like the claimants, placed there as part of the discharge of the duties owed by the County Council to them, and it was plainly material for the County Council to consult with the Borough in order to ensure that proper provision and consideration could be given to the claimants and to others in a similar position.

[25]The degree of co operation is in evidence from a record of a meeting which took place on 15th April 2003, the nature of the co operation at that date and to that date can be seen. The record of the meeting confirms that people who historically have been provided with the benefit of learning disability services in the Borough Council had needs which needed to be addressed. The Borough Council sought representations from the County Council as to the future and, in response, it had received confirmation that the County Council were committed: "... to providing services for Essex people with a learning disability within the County of Essex. This included facilitating the provision of new services to meet assessed needs to enable those people who currently live or attend services outside of Essex to have the opportunity of returning to Essex or receiving services in their own original locality. I interpose only to say that having regard to some of the arguments which have been advanced as to whether or not the Borough Council were entitled to adopt the approach which it did adopt, that particular part of the record is of relevance. A rational and nationally encouraged move towards the provision of utilising resources was also that local people should access local resources, rather than having access to resources outside of their locality. It has always been, as one can see from the statutory provisions, that the mandatory obligations in connection with the provision of case services, was directed towards local authorities avoiding providing it to those who were ordinarily resident in its boundaries.

[26]The record discloses that discussions have been occurring for some time between the Borough Council and the County Council. The County Council made clear what it wished to do in connection with its resources, as did the Borough Council. There was agreement that no new clients from Essex would be referred to Southend, and those currently receiving services would not have their services increased. The record shows that the County Council was clearly committed to providing the current users of Southend services with new person centred opportunities in Essex. The record notes:

"The only issues are those of timing and client choice."

[27]It is obvious that the Government White Paper called for a response not only from the Borough Council but also from the County Council and indeed from all local authorities in England and Wales. Each were required to develop plans for the modernisation of day services and, as far as relevance, one can emphasise to move away from what could be regarded as the old culture of institutional services like those provided at the Maybrook Centre. The Borough Council were informed that the County Council was working with individuals in "a person centred way" to identify the needs of service users, how they would like them to be met and how such person centred opportunities were being offered to people attending Southend resources. So far as day services, the note records:

"It has been agreed with Southend Social Services Managers that reports giving planned reductions in the use of Southend resources will be given quarterly to assist Southend plan how to best use their freed up resources. In the interim, Essex County Council will withdraw individuals as other opportunities become available. This will be a gradual process in keeping with being sensitive to the aspirations and wishes of the service users. If however the length of the time to achieve these is damaging opportunities for Southend residents, consideration will need to be given to issuing notice."

The conclusion included, so far as day care services were concerned:

"The Modernising Day Care Programme will clearly open up a variety of opportunities and Essex will commit a worker to engage in introducing the range of opportunities to service users who access Southend's current day centre facilities. Therefore, Essex seeks tolerance from the Southend Partnership Board within the timetable in achieving moves in support of service users. Essex County Council would seek to achieve agreement from the Southend Borough Council Partnership Board to a further report being requested by the end of August outlining a more detailed timetable in respect of individual service user plans."

[28]Between 2003 and 2004 and, in fulfilment of the need to draw up detailed plans and timetables, the Borough Council's Community Services Scrutiny Committee undertook a detailed study of learning disability services in Southend to determine how the Borough Council's resources could be best used in order that it could implement the Government's requirements as expressed in "Valuing People". It is unnecessary for me to refer in detail to the long document which was drawn up. This project included evidence gathering sessions held during March and April 2004, including meetings with representatives of service users. The Committee produced its report in July 2004 and the report was duly placed before the Committee in October 2004 where, along with many other documents, it was considered. Included in the specific recommendations for Cabinet was the need to consider and, if so advised, endorse a proposal for the phased re-provision leading to the closure of Maybrook. The recommendations informed Cabinet that if the proposal that Maybrook was to be re-provided was to follow, then formal consultation and any decision making would have to be taken in connection with all existing users. Further:

"As the Avro Centre will require capacity to accommodate some existing Southend on Sea service users from Maybrook, it is recommended that Essex County Council be advised that services currently provided to Essex for Essex people will cease from August 2005."

[29]I shall now move forward to September 2004 when the Commission for Social Care's Inspection Report on the Borough Council's services concluded:

"The Council urgently needs to adopt a commissioning strategy for learning disability services to tackle service weaknesses ... together with modernisation of day care arrangements to increase facilitated access to normal community services, and work and training opportunities."

[30]The Committee came to its resolution on 12th October 2004 and the consultation which was foreshadowed immediately commenced. A number of meetings were held and letters were sent to service users and parents and carers, including the claimant's carers. It included letters which were sent to all the family carers and there was a reference to the proposals to close the Maybrook Centre and to cease to provide day care services for clients placed by other local authorities. As stated by Mr Stepney:

"Indeed, whilst the proposal to close the Maybrook Centre did not go absolutely hand in hand with the cessation of provision for other local authority clients, the two were heavily intertwined. If the Maybrook Centre was to close, that would have meant some 109 Borough Council clients needing to be found alternative provision. Even if, on a reassessment of all these clients' needs, it was considered that the Avro Centre was appropriate for just half of them, that would still have been a higher number than the total number of clients at the Avro Centre of the other local authorities (53 odd)."

[31]The evidence discloses that there were a number of meetings with parents and carers of those affected by the proposed modernisation, and in October 2004 two meetings were held with service users and those attending and speaking at the second meeting included: MC, LF and MA. In addition, in November 2002, notices were sent out in connection with the meetings. I have already referred to the claimants' evidence through the statement of Saimo Chahal, her particular observations are made in respect of those gatherings. The February and March 2005 Decision

[32]The Cabinet met on 15th February 2005 and it was provided with a report; the report drew attention to the concerns expressed about the proposed closure of the Maybrook Centre and it referred to the receipt of 16 letters from County Council service users. One of the key areas of concern which was noted was:

"There was concern that people who had attended centres for a number of years would lose the current stability they had in their lives and contact with their friends."

This clearly referred to the proposal to cease the provision of day care service to non-Borough Council service users.

[33]Mr Stepney made a report, and in his report he set out recommendations. The following sub-paragraphs are to be noted:

"7.1. Assessments are being carried out with all service users and their carers affected by the recommended changes. These will ensure that people have an up to date plan identifying their eligible assessed needs and services to meet these needs have been identified. This will also enable sufficient time to arrange for any new services and opportunities to be put in place in a way which best meet these needs within the resources available ... "7.6. There is close working with Essex County Council. Essex County Council is engaging with Southend Borough Council in ensuring that the shift from the Essex County Council purchasing SBC services to the new position is handled sensitively, having particular regard for friendships between people from the two local authorities. There is close working between the two adult lead officers and between the heads of the learning disability services of the two authorities."

[34]The Cabinet adopted Mr Stepney's proposals and resolved accordingly; on 17th March, the full Council met and confirmed that Cabinet decision. These Proceedings

[35]After a full oral hearing and time to consider the application for permission, Wilkie J delivered a reserved judgment on 13th July 2005. He granted permission on one ground alone. Mr Gordon QC for the claimants has renewed an application for permission in respect of those grounds for which permission was refused. By agreement between counsel, I have heard argument upon them. The ground upon which permission was granted was in connection with an argument under

Article 8 of the ECHR

. As described by Wilkie J, it is an argument that, in effect, by denying the claimants access to the service provided at the Avro Centre, their private life, in the broadest sense, has been infringed. It could be said that, as I understand, their private life in this sense does not touch their family life but it touches the relationships and friends which over the years the claimants have established at the Avro Centre. The judgment of Wilkie J records that the claimants acknowledge that the decision made by the Borough Council to close the Maybrook was a lawful one, and the decision to decant some of its service users to the Avro Centre was in pursuit of a legitimate aim. As we shall see, this has not remained the claimants' position. The complaint, as it was understood by the judge, was that it was neither necessary nor proportionate for them to decide to do so by denying the continuation of service to all those, whatever their needs or whatever the history of their involvement with the Avro Centre might be, who are not the clients of the first defendants, Southend, but were clients of other local authorities, for example Essex. The argument then understood was that the process of deciding who should henceforth receive services at the Avro Centre should be based on the assessment of the needs of all those who are candidates for such services, having been in receipt of services either at the Maybrook or the Avro Centre and that to deny the claimants that opportunity, whatever their service needs might be compared with others who are clients of the first defendant, merely because they are receiving services as a client of the County Council was something which was both unnecessary and disproportionate. Again, I have to record the argument has shifted. It is now said that assessment should have been carried out by the Borough Council and that it is not simply that they are being deprived from being eligible for assessment along with everybody else to remain at the Avro Centre. Thus it is that, unlike the indication to the judge that there was no challenge to the legality of the decision to close Maybrook, as the argument has developed in this court it has become apparent that there is indeed a measure of challenge to the legality of the decision to close the Maybrook because of a failure to carry out assessments.

[36]Before the judge, the defendants accepted that Article 8 was engaged. In this court, Mr Underwood accepts that it could be regarded as engaged but much depended upon what was meant by "engaged". He does not accept that what has happened interferes with the private life of the claimants as it is recognised to exist by Article 8. He accepts that we are in the territory or area of Article 8 considerations, but the threshold of action giving rise to an interference which has to be justified has not been attained. Alternatively if it has, it is justified. The judge granted permission on the basis that it was arguable that the reliance which had been placed upon the legal obligation of Essex County Council to assess, involved an approach in respect of those who had received services for very substantial periods of time and for which services are a central part of their private life and that it was arguably unnecessary or disproportionate. Permission was not granted on any other ground.

[37]Departure from the limit of permission on the Article 8 ground was first fore shadowed by the Skeleton Argument for the claimants, settled as it was then by junior counsel, Mr Bowen. At the hearing, Mr Gordon refined the argument. I shall now refer to the steps in the argument.

[38]The steps are as follows: (1) Section 29 of the National Assistance Act 1948, in its material part, provides:

"A local authority may, with the approval of the Secretary of State, and to such extent that he may direct in relation to persons ordinarily resident in the area of the local authority shall make arrangements for promoting the welfare of persons to whom this section applies, that is to say persons aged 18 or over who are blind, deaf or dumb or who suffer from mental disorder of any description ..." (2) The Secretary of State gave approval and directions under section 29 in Appendix 2 to Circular LAC (93)10. Paragraph 2.1 reads, in part: "

The Secretary of State hereby approves the making by local authorities of arrangements under section 29.1 of the Act for all persons to whom that subsection applies and directs local authorities to make arrangements under section 29.1 of the Act in relation to persons who are ordinarily resident in their area for all or any of the following purposes - (a) to provide a social work service; (b) to provide whether at centres or elsewhere, facilities for social rehabilitation and adjustment to disability including assistance in overcoming limitations of mobility or communication; (c) to provide whether at centres or elsewhere, facilities for occupation, social, cultural and recreational activities ..."

[39]Contrary to the submission as it appears in Mr Bowen's Skeleton Argument but as, in my judgment, Mr Gordon in argument correctly accepted, the effect of paragraph 2.1 above, when read with section 29.1 of the 1948 Act is as follows: (a) Section 29.1 confers two distinct functions on local authorities, one being permissive and the other mandatory. The duty to make arrangements is confined to cases where the Secretary of State has given a direction relating to persons ordinarily resident in the authority's area. The power to make arrangements is not so confined, but it arises from the Secretary of State's approval but it is not subject to his direction. It arises where the Secretary of State has given his approval to arrangements being made, and his approval may be given without regard to the place of residence of any potential beneficiary (see R v Berkshire County Council ex party P 1 CCLR 143, Laws J as he then was in July 1996). It follows that so far as these claimants are concerned, not being persons who are to be regarded as ordinarily resident in the area of the Borough Council, the Secretary of State has approved the Borough Council as an authority which may "... make arrangements for promoting the welfare of persons to whom this section applies ..." But so far as these claimants are concerned, it is not a local authority which is under a duty to provide to the claimants all or any of the purposes set out at (a, (b) and (c) of the approval and direction which I have quoted above.

[40]Next it is said, as of the third step in the argument, that contrary, therefore, to the full breadth of the submission of Southend Borough Council as originally advanced, that it owed no statutory obligations to the claimants, Mr Gordon submits that the result of the approval is that the relationship between Southend Borough Council and the claimants bring section 47.1 of the National Health Service and Community Care Act 1990 into play. The material part of section 47.1 of the Act providing:

"Subject to subsections 5 and 6 below, where it appears to a local authority that any person for whom they may provide or arrange for the provision of community care services may be in need of any such services, the authority - (a) shall carry out an assessment of his needs for those services; and (b) having regard to the results of that assessment, shall then decide whether his needs call for the provision by them of any such services."

[41]As a result, Mr Gordon submits that Southend on Sea, on the facts of this case, should have carried out an assessment on the claimants' needs but have failed to do so and it erroneously relied upon the mandatory statutory obligations of Essex County Council, which are owed to the claimants, as relieving them from any such responsibility. In particular, it has been submitted that the Borough Council should have carried out an assessment before deciding to close Maybrook.

[42]The next legal step in his argument came, in truth in its full form and again in a somewhat different guise, in his written reply. The first argument, as developed before the court, was that he had established that by reason of the Secretary of State's approval and direction Southend Borough Council, like all the other local authorities, fell within the ambit of the authority to take action under section 47.1 of the 1990 Act. The import of that was that although this matter had not been raised by way of specific argument before, this was a case in which it could be demonstrated that the Borough Council, by reason of the service which it had provided at the request of Essex County Council since 1998 and in the light of its own decisions which included the closure of Maybrook and the cessation of facilities to the claimants at Avro, had created a situation in which it should have appeared to Southend Borough Council that there were persons, namely the claimants, who may be in need for the services which it could provide at the Avro Centre. That being the case, they should have carried out an assessment and they had failed to do so. The matter though, as I have indicated, appears to me in any event to have been put in a different way by way of written reply. The point was developed in this way so that it became the submission that Southend had assumed, as a matter of fact and law, by the provision which it has made, since 1998, a statutory power to provide day care services at Avro to the claimants under section 29.1 of the National Assistance Act. More particularly, the argument involves an assertion that the true factual and legal position as between Essex and Southend was that the services were actually being provided and were to be regarded as being provided by Southend and that Essex was merely to be regarded as the funder. Thus the fundamental submission is that Southend has acted unlawfully in continuing services without there being completed assessments, which it was under an obligation to make. He submitted that the facts of the case were all square with those which arose in the case of ex parte Perry

[2000] 3 CCLR 378

[43]In my judgment, the legal position is as follows:(1) Paragraph 25 of the claimant's original Skeleton Argument as settled by Mr Bowen was in fact correct when it asserted that the relevant local authority owing community care duties and having statutory responsibility for the claimants, for example under section 29 of the National Assistance Act 1948 and the related statutory provisions, was not the Borough Council but Essex. In my judgment, the statutory purpose in distinguishing between mandatory duties being owed to those who are ordinarily resident and empowering other local authorities is, in the first place, to see that local authorities discharge their mandatory duties to those who are ordinarily resident within their area and if they do not or if, for other circumstances, no such assessment has been carried out, there is in fact a safety net provided by the empowering provisions. It seems to me that the statutory purpose is that local authority obligations in this area are to be mandatory, in respect of those ordinarily resident within the area of the local authority and that that has the clear purpose of ensuring that thereby the majority of those in need of care will be provided for locally. Plainly, the primary source of the discharge of care in respect of people in need was not regarded as sufficiently comprehensive to embrace the provision for all those who may be in need, for example those who may not, at any one time, be residing in the area where, for the purposes of the test of being an ordinary resident, they were not ordinarily resident.

(2) Thus in cases, for example as in ex parte P, a person in need is placed within one local authority area at the expense of another local authority, and the availability of two sources of assessment in such a case is an important advantage. It is particularly important, as an advantage, in a situation where no assessment has in fact been carried out by either authority. In my judgment, it is extravagant to suggest that Parliament intended that both authorities, in the situation which I have identified under section 29.1 and section 47.1, should carry out the assessments when, to the knowledge of each other, the others are not carrying out an assessment. I reject the suggestion therefore that it was irrational or unlawful for the Borough Council to regard Essex County Council as the relevant authority to be ready, available, willing and able to carry out assessments as it had done for years in respect of these claimants and that there was, as a result, any duty upon the Borough Council which gave rise to a need on its part to act under section 47.1. There was, in my judgment, a situation in which there was a plain absence of need. The fact that it would seem, by reason of the way the argument has gone in this case, that the Borough Council may not have realised that it was under an obligation, should there have been a need to carry out an assessment under section 47.1 seems to me to be neither here nor there, since, as I am satisfied, there plainly was no need.

[44]I would be slow to regard the provision of services in one area in respect of disabled persons, whose assessments may need to extend over a whole range of the provision and care of support, of which day care facilities may only be one, because it could lead, as the argument which Mr Gordon advances could logically lead, to a position where a greater responsibility for assessment in respect of that individual should be seen as arising upon another local authority provider. It may, in many cases, be very difficult to carry out an assessment in respect of, for example, one aspect of the provision of care (for example day care) where in fact the individual is in need of assessment in respect of other aspects of care which, on his argument, would not be the responsibility of the one who had provided day care facilities. In my judgment, the argument departs from the clear legalities of the situation as they arise from an examination of the legislation and indeed departs from what, as a matter of fact, I regard as plainly having taken place in this case. Essex has remained mandatorily responsible for carrying out assessments in respect of these claims which assessments as far as they might need to, extend beyond that which is required by the provision of day care and Essex, having decided that day care support was necessary, it discharged its responsibilities to the claimants by placing them in Southend. A placement by Essex with Southend does not have the legal effect in itself of amounting to an assumption of responsibility under the Act by Southend. Southend of course assumes all responsibility that the general law imposes for the proper provision of such services but save, as far as section 47 provides a safety net, the contention that Southend, by providing day care, is to be taken as standing in the shoes of Essex is in my judgment misconceived.

[45]In this instance, not only was the Borough Council entitled to rely upon the statutory position of Essex and a history as it knew it, but also upon the contact that it had had with, the co operation which it had received and upon the statements of intent and commitment which had been laid before it. All of it, in my judgment, made it reasonable for Essex to conclude that there was no need for it to take any action so far as the claimants were concerned under the relevant provisions of the statute.

[46]In my judgment, it had no grounds to believe that a need existed and every reason to believe, from the joint effort which had taken place, that no need would arise and it did not act unlawfully in not making an assessment in respect of these claimants.

[47]In his written reply, Mr Gordon relied upon section 32.1 of the National Assistance Act 1948 which makes provision for financial adjustments between local authorities, namely adjustments between an authority providing accommodation and authority and so forth in an area of residence. He submits that this is an example of the Act recognising a joint exercise of legal responsibility giving rise to the consequences which he suggests have taken place here. In my judgment, the substantive effect on this section is entirely neutral and indeed, if anything, probably points in the other direction for it emphasises that the primary and governing relationship, as between a local authority and the person to whom services are provided, is the authority in which a person is ordinarily resident.

[48]So far as he has submitted that it was not until oral argument in his case that Southend took the view that it had any form of statutory obligation to these claimants, or took the view that they were, in some sense, outside the area of its legal responsibility, in my judgment he is correct. That would appear to me to have been the position of the Borough Council until oral argument on its behalf by Mr Underwood. Thus I agree that if it had appeared, or had the facts shown that it should have appeared, to Southend that these claimants may be in need of any service it came, or would have been, under an obligation to carry out an assessment of needs for such a service. But for the reasons that I have already indicated in my judgment, it had every good reason to decide or to take the view that no need arose or that no action was called for on its part.

[49]Mr Gordon submits that since there has been an error of law to the extent which I have identified above, although of course his submission is that the error of law went beyond that which I have identified above, he submits the consultation process and the approach of the Borough Council must be regarded as flawed and unlawful. Again, as I have already indicated in my judgment, the error is of no effect. No assessment was made but none was required therefore, so far as my judgment is concerned, this particular aspect of the matter does not flaw the process which was adopted.

[50]In my judgment, the relevant question which has arisen as a result of the more refined and helpful argument which has taken place in this court and on paper is this: namely, has the Borough Council acted unlawfully either prior to the decision to close Maybrook, or after, by not making an assessment of the claimant's needs so far as day care facilities were concerned? For the reasons I have indicated, the answer is no.

[51]I would also add that, as it will already be apparent, it has from time to time been difficult to determine the extent to which the arguments being advanced were being advanced in accordance with either the argument which had been put before Wilkie J, whether or not it was in accordance with the limited nature of the permission which was granted, or whether in fact the argument was part of an application for renewed application for permission to argue the grounds in support of permission. Be that as it may I have endeavoured, in the time available, to consider these arguments but I do think it is helpful to remind oneself of the position as it was held by Wilkie J in his judgment, after he had heard the argument there in connection with assessments. Paragraph 21:

"The fourth ground alleges that there is involved an unlawful withdrawal of services before a reassessment of needs. In my judgment that ground is unarguable. There is no evidential basis to suggest that there is any question of services at the Avro Centre being denied before the second defendant has undertaken a reassessment of needs. If the first defendant's decision to cease to supply the services to the second defendant is lawful then any question of the quality of the reassessment or the appropriateness of the alternative services being offered by the second defendant is an entirely different matter and one which ought to be pursued once that assessment has been completed."

For the purposes of brevity and convenience, I adopt that part of the reasoning of the learned judge in connection with this part of the argument.

[52]I now turn to the case of ex parte Perry. Reliance upon this case is deployed, in particular, to support an argument that there should have been an assessment before closure, alternatively that there should have been an assessment before, in effect, the decision to withdraw services from the claimants. In this instance, the closure or the decision to withdraw services was a decision of the Borough Council made to the knowledge of, and in co operation with, Essex County Council. The Borough Council's closure and its consequent decision to withdraw services in my judgment stands apart, for the reasons I have already stated. Any need for assessments, save to the extent that Essex might have been manifestly failing to carry out an assessment when, to the appearance of the Borough Council, it should have done so. As far as the case of Perry is concerned, it is material to point out, as Mr Underwood has done in his short written submissions in connection with that case, that the instant case does not involve a home or accommodation provided for the claimants. In this instance as I have stated, and the evidence in my judgment makes out, the Borough Council had a legitimate basis for concluding that in this instance the claimants' needs would be met and were being met. In my judgment, for the reasons stated in the further observations of Mr Underwood, the case is not on all fours with the case of ex parte Perry. Article 8

[53]For the purposes of this judgment, I shall assume that the withdrawal of facilities to the claimants at Avro will effect their private life, namely their private life so far as it is based upon established relationships. I do not consider it helpful or necessary to concern myself with whether or not this arises out of a positive or a negative obligation. Such interference as there will be, which I have set out and recorded is, in my judgment, limited. More than that, there is evidence that steps have already been taken to ensure that the existing relationships are maintained.

[54]Thus it is, in my judgment, quite unreasonable to regard the fact that the services at the Avro Centre are going to be withdrawn, without considering all the other evidence which shows what steps will be taken to ensure that so far as relationships are concerned, they can be maintained. It is important to emphasise in this case that although it involves accommodation in the sense of a day centre, what is being prayed in aid, throughout, as being of importance is the existing relationships. The fact that I have concluded in the context of Article 8 that the interference which is to take place or will take place is limited, should not be misunderstood. It is not meant to belittle or underestimate the importance of the relationships to these claimants and indeed to all the people involved.

[55]So far as the wider aspect of the matter is concerned and as far as the wider aspect of the private life which Article 8 involves, I have in mind that the opportunities, which will come from modernisation and from the future, do not foreclose the development of personal relationships in the future. In my judgment, one has to consider all the circumstances when considering the impact of the action and when considering the private life of these claimants, as it will be after these events have taken place.

[56]The future holds open to them a scope for new relationships and a scope for a new dimension in their private life, with sufficient retention of their past private life so as to limit the impact of change. Thus I have concluded that the interference, such as it is, is limited, in particular,when account is taken of the capability of remedying the effect of change. In my judgment it is plain as far as this decision is concerned that it was taken in pursuit of a legitimate aim. I have set out the evidence not exhaustively but in sufficient detail to enable the case to offer. The European Court of Human Rights has recognised that in fields such as social housing and welfare, public authority is entitled to make policy decisions which strike a fair balance without the necessity to consider individual circumstances. They do have a wide margin of discretion in striking that balance. In my judgment, the facts as they are and I have endeavoured to summarise them demonstrate that this is a case where the action which has taken place is proportionate and well balanced. In this case, the area of concern for a local authority extends, as I stated at the beginning of the judgment, an enormous number people each of them having various needs in connection with their condition, where there are limited resources but resources which must be spent in the best and most approved way, where there are Government directions and initiatives which indicate the direction in which the services should go. It is plain that the underlying reason for the closure of the Maybrook Centre is to comply with Government policy and that policy itself is designed to foster the autonomy of the learning disabled, to ensure services are provided to them and that they are not set apart from the community. It is a situation in which the policy itself is driving towards what could be regarded as an aspect of private life which it is seen will be enhanced by these measures.

[57]It can be said that without the closure of the Maybrook Centre, the Borough Council will not have the necessary funds to commission and develop the new and better services for its other clients, as the Government White Paper advocates. As is obvious, funding is not limited. These matters of course give rise to very difficult judgments on areas of sensitivity but having reviewed the evidence available to me in this court, I am satisfied that the Borough Council and indeed Essex County Council have approached this long term measure with a great degree of care and sensitivity to meeting the needs of those who are going to be affected by it. As it happens, so far as the Borough Council are concerned, not all those who attend the Avro Centre will necessarily be there for that long period of time, even if they are assessed to go there now. The Avro Centre, whilst it continues to provide a most appropriate form of service provision, is not likely to remain in its present form in any event.

[58]Again, as far as the proportionality and balance is concerned, one must pay regard to the fact that those who will have to leave will be the beneficiaries of suitable alternative placements elsewhere which are going to be, as I have recorded, determined after reassessment of their needs by Essex County Council. They have the benefit of statutory entitlement which Essex County Council has already, on record, as being committed to secure. Steps have already been taken to enable the friendships to continue and, in my judgment, to require the Borough Council to maintain provision for Essex County Council clients in the circumstances which have been set out, in my judgment, would be to impose undue and disproportionate conclusion upon what they owe by way of respect to the claimants.

[59]As to the suggestion, made in the course of argument, that what has occurred in this case has taken place without a due measure of respect being given to the claimants, in my judgment the weight of the material which I have seen points in the other direction. I am satisfied that there has been due account taken of the necessary respect for the claimants and that there has been no breach of Article 8.

[60]It follows therefore that I need not deal with the questions which arise under Article 14, since it is common ground that if it is justified under Article 8, as I hold it to be, then justification under Article 14 would necessarily follow.

[61]Finally, I would end this judgment by saying that even had I been persuaded by the legal argument in this case that there were good grounds for impugning the conduct of the Borough Council as unlawful or contrary to Article 8, I would have hesitated long before granting relief, having regard to the matters which I have already set out in the early part of this judgment. In my judgment, this matter should not have been issued at the date it was. It should have been issued long before the date in May. This matter should have been raised with the urgency which I indicated is appropriate. Had it been done so, a considerable measure of uncertainty would not have arisen and we would not have been in the position which I might have otherwise have been had I taken a different view of the legalities. I would have been considering whether or not it was appropriate to grant relief at the very date, which has been long foreshadowed over years, as the date when the charges would occur.

[62]For all those reasons, this application for judicial review is dismissed.

[63]MR GORDON: My Lord, first of all may I express our gratitude to your Lordship but also in relation to the length and comprehensiveness of your Lordship's judgment. There are in fact a number of matters to consider at this stage: very briefly, the first of them is one or two comments by your Lordship at the early part of your judgment and I need to revisit them, we can do that in a moment. The second is the question of permission, not so much to appeal at this stage, but permission to apply for judicial review in relation to some of the arguments. I will come back to that too. The third is the question of costs which I will wait and see what Mr Underwood says about that and finally the question of permission to appeal and interim relief. I will come back to that after the costs application.

[64]As far as the content of your lordship's judgment is concerned, there is only one point. Your Lordship did make, what sounded like, a criticism of delay but it was fairly generalised and it was founded, in part at least, in one paragraph of Miss Chahal's second witness statement and I may have pointed your Lordship to it too quickly. It was page 215 of the claimants' evidence.

MR JUSTICE NEWMAN: The claimants' evidence?

[66]MR GORDON: Miss Chahal's second; she made four witness statements, this is her second one.

MR JUSTICE NEWMAN: Which page?

[68]MR GORDON: Page 215. I had agreed and centred very quickly on the proposition that she saw the claimants in February. The position is that in one sense she did, but your Lordship can see the problem at paragraph 30, the last sentence:

"Eventually [Mr Jones] he approached me in about mid February 2005. I was too busy at that time and was not able to deal with the case. "31. Mr Jones persisted and eventually I arranged an appointment for him to come in to see me on 20 April 2005."

She sets out the chronology up to paragraph 24. The proceedings were issued on 25th May. That is so far as Miss Chahal is concerned.

MR JUSTICE NEWMAN: What do you invite me to conclude from that?

[70]MR GORDON: I am not inviting your Lordship to draw any conclusion save that I need to make clear what the position of each legal representative was and your Lordship did appear, at one stage, to make generalised criticism of those acting for the claimants.

[71]MR JUSTICE NEWMAN: I made a very specific criticism of those acting for the claimants. Namely that on the assumption that I had been informed correctly, as I believed I had, that the first contact came from the claimants in February 2005. I regarded it as not good enough that these proceedings were not issued until 24th May 2005. That was the assumption upon which I was proceeding. Are you now telling me that the assumption was wrong?

[72]MR GORDON: No, I am simply making sure that your Lordship knows three things.

MR JUSTICE NEWMAN: All right, you go on.

[74]MR GORDON: As far as Miss Chahal is concerned, the first appointment she made to see the client, to discuss the merits of the case, was on 20th April 2005. As far as Mr Bowen is concerned, counsel in the case, he was first instructed on 22nd May 2005 and, as far as I am concerned, I was instructed three days ago. I simply make the point in terms of each legal representative's participation.

[75]MR JUSTICE NEWMAN: What am I meant to do then? You are not taking up time with a view just telling me that, you obviously have in mind you desire me to take something on board so what is it?

[76]MR GORDON: If your Lordship says that there has been delay by those representing the claimants, I simply feel bound to point out that the claimants were prepared in five days by Mr Bowen and I came in after permission was granted.

[77]MR JUSTICE NEWMAN: If you are asking me to exclude from the otherwise broad ambit of the criticism of counsel who were not instructed respectively until 22nd May, or three days ago, then of course the criticism could not possibly extend to them. If that is all you are asking, I am very happy to put that on record.

[78]MR GORDON: I am grateful, my Lord.

[79]MR JUSTICE NEWMAN: What are you asking me to say as far as Miss Chahal is concerned and Bindman & Partners?

[80]MR GORDON: I make the point in fairness to Miss Chahal that she was not instructed by the clients until 20th April.

[81]MR JUSTICE NEWMAN: In this sort of situation, Mr Gordon, if you are a solicitor and somebody approaches you in respect of a judicial review matter in February 2005, and you are too busy to take it on; is it not that the first thing you have regard to is the fact that in all judicial review proceedings, there is a very strict time limit of three months at the outside and what you do is you make the initial enquiry as to what it is and to draw to the attention of the client, the proposed client, that they probably ought to go elsewhere in order to have their needs met.

[82]MR GORDON: I simply wanted to put the record straight.

[83]MR JUSTICE NEWMAN: I am simply wanting to make sure that as far as the record is put straight, there is not then going to be an argument that there has been some misunderstanding. I am very happy to listen to an explanation, all explanations there are as to why between February 2005 and 20th April 2005, which is the best part of nearly two months of the allowance of three months. I now understand that you are telling me that nothing was done because one of the claimants went away not believing that there was a solicitor available to deal with it.

[84]MR GORDON: I know nothing more than is contained in the witness statement.

MR JUSTICE NEWMAN: It is not very satisfactory, but I hear what you say.

[86]MR GORDON: I am grateful, my Lord.

[87]Can I move to the second housekeeping point which is the question of permission to apply for judicial review. The basic point is this: your Lordship is right to say that the arguments have moved, they have moved perhaps for reasons which your Lordship will understand, as it has come on terribly quickly from our point of view. It does seem to us, with great respect, that your Lordship had to wrestle, as it were, with the section 29 argument point. I invite your Lordship to say it is arguable in the sense of a justifiable argument put before the court. It certainly makes things a lot easier administratively, in terms of any appeal that there might be, one does not have to renew some aspects and appeal on other aspects.

[88]MR JUSTICE NEWMAN: I am right in concluding, as I have and I think you are acknowledging it to be the case, that the section 29 argument as it has been advanced to me was not advanced to Wilkie J.

[89]MR GORDON: That is correct. It is in our supplementary Skeleton.

MR JUSTICE NEWMAN: I knew it was there, but it emerged in argument.

[91]MR GORDON: It was foreshadowed because when I did come to the case, it seemed to me that there were statutory powers analysis which needed to be ventilated with the court and my Lord, in my respectful submission, it is a point of some importance. I would also differentiate permission to argue the point.

[92]MR JUSTICE NEWMAN: I know why you want to differentiate permission to argue it and otherwise because obviously if, what you are talking about is an appeal, have you made enquiries?

[93]MR GORDON: Yes, I was going to come to that. The position is this: my learned friend Mr Bowen has contacted the Civil Appeals Office and it does appear that there can be a slot for an application for permission to appeal and/or interim relief next Thursday. That would be a half-hour appointment.

MR JUSTICE NEWMAN: Yes.

[95]MR GORDON: My Lord, the position is this, as I understand it, even though your Lordship were to refuse permission to apply for judicial review --

MR JUSTICE NEWMAN: You would want to argue that next week?

[97]MR GORDON: Exactly. What I would hope to persuade your Lordship to do is to put all arguments on equal level, as far as initial application for appeal is concerned, it may well be your Lordship will refuse permission to appeal, so they can all be put before the Court of Appeal in an ordinary and straightforward way. Otherwise one will end up renewing some submissions and seeking permission on others.

MR JUSTICE NEWMAN: The only thing which you would not be renewing would be the Article 8 point.

[99]MR GORDON: That is right.

MR JUSTICE NEWMAN: You only had permission on Article 8.

[101]MR GORDON: That's right. We would be assuming for the moment your Lordship refuses permission to appeal. We would be seeking permission on that. Practically speaking, in many ways, it is difficult to see any basis for differentiating between the arguments but it is a matter for your Lordship.

[102]If there is an application in relation to costs, I can deal with that separately.

MR JUSTICE NEWMAN: Deal with that later.

[104]You are indicating that you are asking for permission to appeal, why do you not deal with that now?

[105]MR GORDON: The position in respect of this case is that there are a series of important points in relation to community care law.

MR JUSTICE NEWMAN: Can I take it that you have instructions to appeal from the claimants?

[107]MR GORDON: My Lord, from those instructing me, as I understand it.

MR JUSTICE NEWMAN: Have they got instructions directly from the claimants?

[109]MR GORDON: My Lord, I thought I had but it appears we have not got direct instructions from the clients.

[110]MR JUSTICE NEWMAN: Can you make an application for permission to appeal when you have not instructions from the claimants?

[111]MR GORDON: I was certainly instructed to make the application.

[112]MR JUSTICE NEWMAN: You are instructed by solicitors to make the application but they have not any instructions from the clients.

[113]MR GORDON: All that will happen is, if your Lordship says it is not appropriate to make the application now, if we do get instructions we will have to trouble your Lordship in writing as we have to get it refused in order to make the application to the Court of Appeal. Clearly if we do not get instructions, the hearing will not go ahead on Thursday.

[114]MR UNDERWOOD: I wonder if I can help. I may be completely ignorant of the rules but it was my understanding of the rules that one does not have to trouble the first instance judge and one can go directly to the Court of Appeal.

MR JUSTICE NEWMAN: You can.

[116]MR GORDON: In that case, certainly it is my old fashioned adherence to the rules.

[117]MR JUSTICE NEWMAN: It is conventional to ask for permission to appeal and if you get it, it is nice to have it. If you do not, you have to go to the Court of Appeal. You are not precluded from going to the Court of Appeal as I understand it and as Mr Underwood now understands it if you have not, for one reason or another, made it. You have made your application and I understand the basis upon which you are making it. I do not know whether you want to develop the reasons but I take it that you think it is a point worthy of being argued again and getting the Court of Appeal to consider it.

[118]MR GORDON: My Lord, yes.

MR JUSTICE NEWMAN: Mr Underwood, what do you say first of all about this permission and so forth?

[120]MR UNDERWOOD: I do not want to be overly relaxed about it but with respect, it does not seem to make a scrap of difference whether your Lordship were to be asked to rule out permission or not. If my friend goes to the Court of Appeal, he is going to be asking the court to look at it all again whether under the guise of appeal or permission to renew the application for judicial review. Technically, of course, it is preferable from Southend's point of view that your Lordship says that these matters are unarguable, but it does not seem to be important or distinguishable either way. He will no doubt receive the same verdict from it, from the Court of Appeal, whether your Lordship says they are unarguable or not.

[121]MR JUSTICE NEWMAN: All right. I will reflect on that.

[122]MR UNDERWOOD: As far as permission to appeal is concerned I am reminded by Mr Bhose that your Lordship and I are right. It is rule 52.3-2 an application for permission to appeal may be made to the learned court or the Court of Appeal. My learned friend does not have instructions today, he can go straight to the Court of Appeal.

[123]MR GORDON: My Lord I can confirm that, I have seen that as well now.

MR JUSTICE NEWMAN: Are you asking for costs, are you moving to costs?

[125]MR UNDERWOOD: I am moving on. The instructions are not to ask for costs. Two other matters my Lord, since I am up. Can I ask your Lordship for a direction of an expedited transcript; if my learned friend does go to the Court of Appeal, it will be better properly transcribed rather than from our notes.

[126]MR JUSTICE NEWMAN: The difficulty about that is that whenever the transcript is available. (Pause). It will not be available until Tuesday and I will not be around.

[127]MR UNDERWOOD: In that case, would your Lordship allow an unapproved transcript to go before the Court of Appeal?

[128]MR JUSTICE NEWMAN: I think it is the only way forward. Unfortunately whilst I am content to provide the shorthand writer with my notes, inevitably my notes do not, in all respects, accord with what I have actually said. Sometimes they are alterations and sometimes they are additions.

[129]On one condition, Mr Gordon, I would be prepared to consider a transcript which would have to be supplied to me out of the country. If it was available to me on Monday or Tuesday, you realise that in stating I am prepared to do that, it is considerable disruption to persons involved and therefore the condition that I was going to indicate was this: if you do not have instructions to proceed by way of an appeal, then I would ask that your decision should be made in that respect by 4pm on Monday.

[130]MR GORDON: Certainly, my Lord, yes.

[131]MR JUSTICE NEWMAN: Unless I hear by 4pm on Monday, it should be communicated to my clerk what your decision is. Even if it is available, I will not be in a position to deal with it because of my own personal arrangements. If you do decide to appeal and you so tell me, then I will not make a promise but I will endeavour to have an approved transcript, which can be returned, for use on Thursday.

[132]MR GORDON: My Lord, I am very grateful. May I indicate:(a) we do not have direct instructions at this stage; and

(b) even if we did, clearly advice has to be given in light of your Lordship's judgment. I am by no means certain that a hearing will not be listed for next week. No decision has been made as a matter of principle.

MR JUSTICE NEWMAN: You may not even have a hearing next week?

[134]MR GORDON: We may not. We are certainly willing to comply with what your Lordship has said in terms of making a decision.

[135]MR JUSTICE NEWMAN: I think you ought to make up your mind by Monday 4pm, let that be communicated to me and thereafter I will endeavour to assist. If not, you will have to have an unapproved judgment with my consent. That resolves that.

[136]MR UNDERWOOD: That is very kind, my Lord. There is only one other matter and, again my ignorance of the rules, I wonder if your Lordship would order that the claimants are known by their initials.

[137]MR JUSTICE NEWMAN: Yes, indeed. It is either 33 or 39 or the Children and Young Persons Act, or the equivalent provision. It may not be Children but the Contempt Act perhaps. In any event, you have an order and that means that, for the purposes, of the judgment could initials be adopted.

[138]No order as to costs.

[139]MR GORDON: I think I probably have to ask for Legal Aid taxation.

MR JUSTICE NEWMAN: All right, thank you very much.

[141]MR GORDON: Your Lordship has not dealt with the permission.

MR JUSTICE NEWMAN: Yes, thank you.

[143]I have been asked to decide whether, in respect of those matters upon which I have dealt with in the judgment but in respect of which no permission had been granted to argue them they having been raised, I grant permission in respect of them or that I refuse permission. Mr Gordon, in fact with the support of Mr Underwood, urges the court to take the view that no purpose would be served in distinguishing between the grounds as argued in respect of which permission existed and the one ground in respect of which it did. The only question is whether or not therefore this section 29 argument, in particular, is one which I regard as arguable.

[144]The advantage of hearing argument on an application for permission is that when you first hear the argument, you might take the view it is arguable but when you have actually heard it and considered it, you may take the view it was not arguable at all even though it had some attractions. On balance, since neither side seem particularly at odds over it, I will grant permission in respect of the matters which have been argued and in respect of which there was no permission and that disposes of that.

Cited in 1 later judgment

Manchester City Council, R (on the application of) v St Helens Borough Council & Anor 2009