DB & Ors v Worcestershire County Council [2006] EWHC 2613 (Admin)

[2006] EWHC 2613 (Admin)Case No CO/5074/2005
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Venue Royal Courts of Justice
Strand.
London. WC2A 2LL
Date Date: 27/10/2006
Before
THE HONOURABLE MR JUSTICE OWEN
Between
DB and Others ClaimantWORCESTERSHIRE COUNTY COUNCIL Defendant
Ms Kate Markus (instructed by Public Law Solicitors) for ClaimantsMiss Jenni Richards (instructed by Legal Services Worcestershire County Council) for DefendantsHearing Hearing dates: 01/08/2006
Judgment
[1]On 22 July 2005 the claimants issued an application for judicial review. Permission was granted by Ouseley J. on 28 July 2005, and the application was listed to be heard on 11 - 13 October 2005. On 7 October 2005 an order was made by consent vacating the hearing date and adjourning it to the first available date between 15 February and 15 March 2006 with a time estimate of 3 days. On 22 March 2006 it was ordered by consent that the application be withdrawn, but that the issue of the claimants' costs of the application be determined at an oral hearing. The terms of the consent orders made on 7 October 2005 and 22 March 2006 are of importance and copies are annexed to this judgment.

The background to the application

[2]The claimants are adults with learning disabilities who are unable to live independently without support. They live in accommodation managed by Marpool Ltd., a company which at all relevant times also provided the claimants with the support that they each required under the terms of a contract with the defendant council.[3]From April 2003 the claimants' accommodation and support was funded from the Supporting People (SP) budget, a fund established by central government and administered by the Office of the Deputy Prime Minister. The manner in which the Supporting People fund was operated and the problems to which it gave rise in relation to Marpool Ltd are succinctly summarised in the judgment of Collins J in the parallel proceedings R (G and others) against ^Worcestershire County Council [2005] EWHC 2332 (Admin), a decision to which I shall return. Suffice it to say that in May 2005 the defendant decided to terminate its contract with Marpool Ltd for the provision of SP services. The reasons for its decision are in issue but, as Collins J. observed in the case of G, I am not in a position to resolve that issue, nor would it be appropriate to do so in the context of this application. But the claimants took a view that the inevitable consequence of the decision was that they would have to leave their accommodation, and they did not want to do so. Furthermore they and their advisers took the view that although the defendant had said that it would secure alternative accommodation for them and make arrangements for the support that they required, there did not appear to be any suitable alternatives.[4]It was against that background that the claim for judicial review was issued.

The grounds

[5]There were two limbs to the application. They were succinctly summarised at paragraphs 5 and 6 of the detailed statement of the grounds:
"5. The claimants' claim that the decision to terminate the contract of Marpool Ltd is unlawful because: (a) The decision was made without adequate consultation with the claimants (b) The defendant failed to take into account relevant factors including: the views of the claimants' parents or of professionals significantly involved in the care or treatment of the claimants, the claimants' needs, and the impact of the decision upon the claimants, " 6. Further, the defendant, as social services authority with responsibility for the delivery of social services to the claimants, has unlawfully decided that it will not fund Marpool Ltd to provide support to the claimants at their present accommodation. The claimants rely in particular on the following areas: (a) The decision is incompatible with the claimants' community care assessments (b) The defendant has failed to carry out community care assessments as to the claimants housing needs (c) The decision is incompatible with the claimants' wishes to remain at Marpool and is contrary to the key principle of choice in the White Paper "
Valuing People: A New Strategy for Learning Disability for the 21st century" (d) The decision is irrational because there is no suitable alternative provision, the provision at Marpool is the best and most suitable that is available for the claimants, and/or :any alternative that the defendant does identify is likely to cost more than the present arrangements. " It was also asserted on the claimants' behalf that the decision under challenge violated the claimants' article 8 rights.[6]Before addressing the relevant legal principles and the issues to which this application gives rise, it is necessary to make further reference to the parallel proceedings in the case of G. The claimants in G were in precisely the same position as the claimants in this case. The claim in G was issued on 15 July 2005 and permission to apply for judicial review was granted. On 8 September 2005 the defendant lodged its evidence, which as I understand it was substantially the same as in this case. But in G's case there was then a mediation lasting for a full day following which there was a consent order by which the proceedings were withdrawn upon terms, namely that the defendant recognised its statutory responsibility towards the claimants in G and that:
"In view of this most or all of the services commissioned to meet the claimants' assessed needs will be funded by Worcestershire. But it wishes to keep open the option of joint funding with Supporting People in individual cases."
The consent order also set out the agreement by the defendant "... to complete their existing community care assessments of the claimants .., by 1 December 2005. " The order made further detailed provisions similar in some respects to the content of the order in the instant case dated 7 October 2005. As Collins J observed "essentially the consent (order) protects the position of the claimants and for the time being the position of Marpool." As in this case the issue of costs was reserved, and was determined by Collins J who concluded that he was "... not persuaded that the case here was likely to result in a win for the claimants, although, as I say, they had a reasonable case. In those circumstances, with some regret, it seems to me that I must fall back on the position that the appropriate order is no order for cost," Miss Richards, who appeared for the defendant before me, argued that given the very close similarity between the two claims, it would be highly anomalous for a different order to be made with regard to the costs of this claim.

The legal framework

[7]The applicable test was set out by Scott Baker J in Boxall v The Mayor and Burgesses of Waltham Forest LBC (2001) 4CCLR 258; and has been approved by the Court of Appeal on a number of occasions e.g. Sergoz v Secretary of State for the Home Department [2001] EWCA Civ 1135 and Brawley v Marczynski [2002] EWCA Civ 756 and Dearling v Foregate Developments (Chester) Ltd [2003] EWCA Civ 913. At paragraph 22 of his judgment he said:
"Having considered the authorities, the principles I deduced to be applicable are as follows: i) The Court has power to make a costs order when the substantive proceedings have been resolved -without a trial but the parties have not agreed about costs. ii) It will ordinarily be irrelevant that the claimant is legally aided iii The overriding objective is to do Justice between the two par ties without incurring unnecessary court time and consequently additional cost. iv) At each end of the spectrum there will be cases where it is obvious which side would have won had the substantive issues been fought to a conclusion. In between, the position will, in differing, degrees, be less clear. How far the court will be prepared to look into previously unresolved substantive issues will depend on the circumstances of the particular case, not least the amount of costs at stake and the conduct of the parties. v) In the absence of a good reason to make any other order the fallback is to make no order as to costs. vi) The court should take care to ensure that it does not discourage parties in settling judicial review proceedings for example by a local authority making a concession at an early stage. "
[8]In G Collins J, having referred to the judgment of Scott Baker J in Boxall, cited with approval the proposition advanced by Mr Williams QC sitting as a deputy High Court

Judge in R (Kayo) v AIT [2003] EWHC 2716 (Admin):

"It is not for me, at this stage, in effect to re-hear a substantive challenge. That would be time-consuming, costly and wholly disproportionate to the amount of costs at stake. It seems to me that I have to approach it on this basis: does a comparatively cursory reading of the papers, albeit a reading which is intended to be informed, demonstrate to me, clearly, that the Secretary of State was very likely to lose and the claimant very likely to succeed as at the permission stage? I do not think I could possibly reach such a conclusion applying that test. In the absence of a good reason the normal order is that there should be no order as to costs. I have been unable to discern the good reason why I should depart from what is normally done in this court. "
[9]Miss Markus, who appeared for the claimants, also invited my attention to R v Liverpool CC exparte Newman (1992) 5 Admin LR 69 in which Simon Brown J, as he then was, said that on such an application the court will consider the reason for discontinuance/withdrawal of the claim and in particular:
"Where the defendant has taken steps to remedy the subject-matter of the challenge, because it has recognised that is likely to lose, then the defendant should pay the claimants' costs. But if the challenge has become academic because the defendant has decided to short-circuit the proceedings, to avoid their expense or inconvenience or uncertainty without in any way accepting the likelihood of their succeeding against him, then he should not be liable for the claimants' costs. There should be no order. "
[10]I accept that it is not only in a very clear and obvious case that costs may be awarded, but also where upon such examination of the issues and evidence as is appropriate, the court concludes that the claimant would have succeeded had the case proceeded to a substantive hearing.

The issues

[11]There were essentially two limbs to the submissions advanced by Miss Markus on behalf of the claimants. First she submitted that the manner in which the substantive issues were resolved by the consent orders amounted to an acknowledgement on the part of the defendant that they fell into error in making the decision in May 2005 to terminate Marpool's contract. As to that it was submitted on behalf of the defendant that the fact that agreement was reached between the parties by which the defendant agreed to take various steps which have had the consequence that a fresh contract for the provision of support was entered into with Marpool, did not mean that the claim was conceded.[12]Secondly Miss Markus submitted that in any event the claimants would have succeeded in the judicial review had the substantive issues been fought to a conclusion. As to that if it was submitted on behalf of the defendant that the claim gave rise to complex issues, both factual and legal, that the claimants would not 'obviously' have succeeded in their application and that the appropriate order is the fall-back position of no order as to costs."[13]In the course of her submissions Miss Markus gave me some guidance as to the costs involved. She told me that at Legal Services Commission contract rate the claimants' costs amount to approximately £22,500, and at inter-party rates approximately £38,000. It is also to be noted that the substantive application was to be fixed for a 3 day hearing whereas the application before me was listed for '/2 a day and in fact lasted for approximately 3 hours. Although neither party invited me to consider the evidence in detail, both referred me to a substantial number of witness statements and documents,[14]I turn then to consider the first limb of the claimants' argument. It is submitted that the steps taken by the defendant following the issue of the claim, and culminating in the terms upon which the claim was adjourned, amounted to a u-turn, and an acknowledgment of error on their part. The claimants rely first on the letter from the defendant dated 26 August 2005, and written without prejudice save as to costs, in which the defendant maintained that both the SP funding decision and the social services decision were lawful, but accepted that not all service users' parents had been made aware of the SP review and validation visit, and made an offer to negotiate with Marpool for a contract to purchase services and to undertake a fresh SP review. The claimants then rely upon the terms of the consent order by which the defendant agreed to complete existing community care assessments and care plans, to make decisions as to future provision for the claimants, to negotiate with Marpool to see whether a contract for the purchase of the requisite services for the claimants could be agreed, and to continue funding the present services in the meantime.[15]In my judgment the steps taken by the defendant following the issue of proceedings do not lead to the inevitable conclusion, as was submitted on behalf of the claimants, that the defendant should bear the costs of the application. I arrive at that conclusion for a number of reasons. First, and as was submitted on behalf of the defendant, a number of the steps which the defendant agreed to take were steps which, but for the litigation, it would have taken in any event, and secondly some were steps that were not the subject of the claim, e.g. inviting care providers to undertake daily living skills assessments and undertaking risk assessments prior to any move. Secondly a decision maker may quite properly change its mind. It does not follow from a change of position that the original decision was not within the ambit of decisions open to a rational and reasonable decision maker. Thirdly the steps taken by the defendant represented a sensible means of resolving the issues that had arisen between the parties, bearing in mind in particular that they would be a long term continuing relationship with the claimants. In that regard I bear in mind in particular the last of the principles set out by Scott Baker J in Boxall[16]As to the second limb of the claimants' argument, by their application they challenged both the decision to terminate SP funding for their care by Marpool (the SP funding decision) and secondly the decision not to secure the provision of supported living services by Marpool upon the expiry of the SP funding (the social services decision). It is to be noted that both issues arose in the proceedings in G.

The SP Funding decision

[17]As Collins J observed at paragraph 7 of his judgment in G, at the heart of the decision to terminate the SP contract was the view taken by the defendant, that the services provided by Marpool were not satisfactory, and that the care provided by Marpool did not satisfy SP funding criteria. As Miss Markus indicated in her submissions, the claimants' challenge was not directed to the merits of those conclusions although they were not accepted. The principal grounds of challenge were to the alleged lack of consultation and to an alleged failure to follow relevant guidelines in reaching the decision. As to consultation the essence of the complaint was that neither the claimants or their parents realised that the review of the provision of services by Marpool was taking place, or where they did know there was such a review, did not realise that the continuation of SP funding was at stake. That contention was supported by the evidence of a large number of witnesses' evidence, which has not been contested by the defendant.[18]The defendant response to the assertion of lack of consultation is to be found in the witness statement of Laura Westwood. In essence she says that she discussed the issue with Jonathan Kilburn of Marpool, and that Mr Kilburn was to contact parents and invite them to the review. She also discussed involvement of the service users, who included the claimants, with Mr Kilburn. Those who wanted to meet and talk to her in relation to the review were given the opportunity to do so. It is submitted that that was a reasonable course for the defendant to adopt. The claimants do not agree. It is submitted that it was not reasonable to rely upon Mr Kilburn in the circumstances.[19]The second limb to the challenge to the SP funding decision is an alleged failure to follow relevant guidance. It is submitted on behalf of the claimants that the ODPM guidance required the Administering Authority to take into account the impact on service users of a decision to de-commission the service. The issue was addressed in the witness statement of Adam Russell filed on behalf of the defendant in which he explains that Supporting People do not provide community care services, and that it was not incumbent upon Supporting People to arrange for community care assessments to be undertaken.

The social services decision

[20]There are also two limbs to the challenge to the social services decision, firstly a challenge to the alleged refusal to assess the claimants' housing needs, and secondly to the refusal to commission services from Marpool Ltd. As to the refusal to assess housing needs, the case in essence is that it was inevitable that when the contract with Marpool for the provision of support services came to an end, the claimants would have to leave the accommodation provided by Marpool. That, say the claimants, was in effect acknowledged in the defendants' letter of 21 June 2005. It is submitted that that being the case, an assessment of the claimants' housing needs should have taken place including an assessment of the impact upon them of leaving that accommodation and the availability and suitability of alternatives, and that the refusal to take such steps was unlawful.[21]The second limb of the challenge to the social services decision was the refusal to commission Marpool to provide support services to the claimants with the inevitable consequence that they would have to leave the Marpool accommodation. That of course raised the issue of the validity of the concerns that the defendant had as to the quality of the services provided by Marpool. The claimants' argument is essentially that whatever concerns the defendant may have had about the services provided by Marpool, there was no alternative to Marpool, or at least (hat any alternatives would have been worse.[22]The defendant's case is that its social services department had legitimate and rationally formed concerns about the support provided by Marpool. Furthermore and as set out in the statement of Gail Greer, the process of community care assessment and care planning was being undertaken and consideration was being given to a range of different possible means of meeting the claimants' needs. The defendant argue that the letter of 21 June 2005, upon which the claimants seek to place heavy reliance, in fact made it clear that the council was considering a range of different options for the claimants including accommodation options,[23]I have carefully considered the parties' positions in relation to the issues identified above, and those parts of the substantial body of supporting evidence to which I was expressly referred. But I have come to the conclusion that within the confines of the limited examination of the evidence that it is appropriate to conduct, it is simply not possible to arrive with any confidence at a conclusion as to how the challenge to the decisions in issue would have been resolved had the application proceeded to a full hearing. I find myself in the same position as Collins J in G, namely that whilst the claimants clearly had a reasonable case, I am not persuaded that "the case was clearly likely to result in a win for the claimants". It follows that the claimants' application fails.[24]I have further considered what order would have been appropriate in relation to the costs of this hearing in the light of the fact that it was the claimants who insisted upon an oral hearing of the application whereas the defendant would have been content for the matter to have been dealt with on written submissions. I have come to the conclusion that in view of the complexity of the issues to which the application for judicial review gave rise, and of the volume of supporting material, it was appropriate for the claimants to seek an oral hearing, and that in all the circumstances the appropriate order is that there be no order as to the costs of this hearing. Save that there be detailed assessment of the Claimant's publicly funded costs.