Barwick & Anor v Bridgend County Borough Council [2009] EWHC 1723 (Admin)

[2009] EWHC 1723 (Admin)Case No CO/4461/2009
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Venue Sitting at Cardiff Civil Justice Centre
Park Street,
Venue CardiffDate Friday 10 th July 2009
Before
His Honour Judge Bidder Q.C.(sitting as a deputy high court judge)
Between
Alice Barwick and Margaret RuszClaimantsBridgend County Borough CouncilDefendant
(Transcript of the Handed Down Judgment ofWordWave International LimitedA Merrill Communications Company165 Fleet Street, London EC4A 2DYTel No: 020 7404 1400, Fax No: 020 7404 1424Official Shorthand Writers to the Court)
Mr. Stephen Cragg (instructed by Morgans, Solicitor) for ClaimantsMr. Philip Engelman (instructed by Bridgend County Borough Council, Legal Department) for DefendantsHearing Hearing dates: 29 th June 2009, 10 th July 2009
JudgmentHis Honour Judge Bidder QC :Introduction
[1]This is an application by the Claimants, currently residents at the Troed y Ton Care Home (“the care home”),for judicial review of the decision of the 31st March 2009 by the Defendant council (“the Council”) to close the care home. The remedies sought are an order quashing the decision and a mandatory order that the Council conducts a decision making process that complies with the law.[2]It is common ground that the Claimants, representatives of the elderly people resident at the care home, had a legitimate expectation that they would be consulted about the decision to close the care home. In summary, the 2 grounds for the application are, first, that the Defendants failed adequately to consult at a formative stage of proposals to close the care home and, second, that the Council has not had due regard to its duties to disabled people introduced by section 49A of the Disability Discrimination Act 1995 (as amended) when it exercised its decision making functions in relation to the closure of the care home.[3]It is right that I should indicate at the outset of my judgment, following the example of Munby J. in R (on the application of Parents for Legal Action Ltd.) v. Northumberland County Council [2006] EWHC 1081 (Admin) that I am not, in determining this application, at all concerned with the merits of the proposed closure of Troed y Ton Residential Care Home. That decision is not for me to determine and I can have no view on it. My task is purely to determine the question of whether the Defendant Council has acted lawfully.[4]Both Mrs. Barwick and Mrs. Rusz are elderly and long term disabled residents of the Troed Y Ton residential care home run by the Council at Kenfig Hill in the County Borough of Bridgend. Mrs. Barwick is 99 years old and had been living at the care home for 7 years, having used the day care facilities there since 1993. Mrs Rusz is 89 years old and has been resident at the care home since 2005.[5]Everyone agrees that the care home was well and caringly run by the Council. It is now regarded by both Claimants as their real home. They each of them regard the staff and other residents as not only their friends but their family. Closure of the home would represent an immense disruption for them.[6]The full capacity of the care home is 30 residents made up of 27 permanent residents and 3 places for respite care. By the time of the hearing of the application, for various reasons, the number of residents at the care home had fallen to 9.[7]The Council is committed to a programme of modernising services to people with high care needs, in line with the Welsh Assembly Government’s Ten Year Strategy “Fulfilled Lives, Supportive Communities”. So far as accommodation provision is concerned, that strategy includes the aim of moving away from the traditional model of the residential care home to a new model where those with care needs are provided with self-contained accommodation with appropriate and flexible care and support services. The particular model which has been in the process of development by a number of Welsh local authorities is known as “Extra Care”. Bridgend County Borough, however, has lagged behind those other authorities in having no “Extra Care” facilities.[8]The Council is keen to provide such facilities, particularly as it has identified a pattern of falling demand for traditional residential care home places, which is apparent across the whole of Wales. At the same time, demographic research has shown there is likely to be an increased demand for accommodation linked with appropriate care for the elderly and for those with particular care needs.[9]The only way in which the council was able to fund an Extra Care development was by grant funding from the Welsh Assembly Government. The council has in fact made a number of social housing grant (SHG) applications to the Welsh Assembly Government since October 2005. If a bid is successful a development is undertaken in partnership with a registered social landlord, in this case, Valleys to Coast Housing (V2C). Grant funding is given directly by the Assembly Government to V2C, who then undertake construction of the Extra Care scheme.[10]In order to make a successful bid the council had to identify land owned by it which was large enough to accommodate the development, and which was located in an area where the benefits of the scheme would be maximised. It was important for a scheme to be in or near an established community where residents could readily access local shops and other facilities; similarly, local people would be encouraged to use facilities within the development. The choice of an appropriate site was crucial to the success of the scheme. Unsuccessful bids were made by the Council in 2005 and 2006. The second of those bids included the Troed Y Ton care home.[11]In October 2007 the council submitted a third bid, based on Troed Y Ton for the 2009 to 2010 SHG programme year. On that occasion the bid was successful.[12]It is a requirement of the grants that allocated funding should be drawn down by V2C within the SHG programme year, that is, by 31 March 2010. Susan Cooper, head of Adult Social Care at Bridgend County Borough Council, indicates in her statement that the scheme has to be designed, a planning application has to be approved, the contract has to be let and the development started within that time frame.[13]The urgency of this application has already been recognised by His Honour Judge Jarman QC when, in granting permission, he ordered expedition in the hearing of the application. The solicitors for the claimants have made inquiries to establish what the Welsh Assembly Government’s attitude would be to the funding allocated if the Council is unable to meet that timetable. The position is uncertain. It remains uncertain following a more detailed explanation of the Assembly Government’s policy, contained in an extract from their Programme Management Guide published in July 2006, put before me after the hearing of the application under cover of a letter from the Principal Solicitor for the Assistant Chief Executive Legal and Regulatory Services of the Council. I took that new information into account as the email initially put before me at the hearing had itself been produced on behalf of the Claimants at very short notice. It is possible that a new site may have to be identified although the grant allocated may not be used for that new site without a further application. It is possible that the allocation of funding may be deferred but the policy guide indicates that there is no absolute guarantee that a grant will be made available for a scheme that slips. Much will depend on the Extra Care programme as a whole. It is entirely possible that the funding may be lost.[14]At pages 172 to 174 of the trial bundle, exhibited to Susan Cooper’s statement is a helpful chronology. I shall, later in my judgment, deal in more detail with the sequence of significant events but it may be useful to indicate that a meeting of the Cabinet of the Council of the 14th October 2008 resolved “in principle” to close the care home. The Claimants’ contention is, in relation to closure, that the Council proposals ceased to be at a “formative stage” thereafter, and that the die was cast from that point. They contend that inadequate consultation had taken place prior to the 14th and that the inadequacy of consultation was not put right by subsequent consultation and revisiting of that decision thereafter.[15]The Defendants maintain that the decision on the 14th was, indeed, in principle only, that their intention was to continue to consult with residents, their family, with groups representing the elderly, with staff and trades unions and with community groups and representative, not only on the consequences of closure but on the decision to close and that the Cabinet kept a collective open mind about the decision, making a final decision, fairly and after a period of proper consultation and taking account of that consultation, at the Cabinet meeting of the 31st March 2009.

The Statutory Framework

[16]The Claimants receive services pursuant to community care legislation. It is not in dispute that both are disabled persons for the purposes of the legislation as are most, if not all, of the residents of the care home.[17]Section 47(1) of the NHS and Community Care Act 1990 states that:
"... where it appears to a local authority that any person for whom they may provide all arrange for the provision of community care services may be in need of 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."
[18]In this case the relevant statutory provision under which community care services are provided is section 21 (1) of the National Assistance Act 1948 which imposes a duty to:
"... make arrangements for providing - (a) residential accommodation for persons aged 18 years or over who by reason of age, illness, disability or any other circumstances are in need of care and attention which is not otherwise available to them..."
[19]Although the parties are not agreed on whether the Extra Care housing constitutes section 21 provision, (an issue which it is unnecessary to me to decide), it is agreed that people in Extra Care housing would qualify for section 21 provision.[20]Although there is no statutory requirement for the Council to consult on the closure of a care home such as Troed y Ton, the parties are again in agreement that the residents have a legitimate expectation that they would be consulted about the proposals. The Council recognised that there should be consultation and have published a Consultation Strategy in June 2007.[21]Any consultation must be procedurally fair. In R. v. North and East Devon HA, Ex p Coughlan [2001] QB 213 at 258, Lord Woolf MR, referring with approval to R. v Brent London Borough Council, Ex p Gunning (1985) 84 LGR 168 stated:
"To be proper, consultation must be undertaken at a time when proposals are still at a formative stage; it must include sufficient reasons for particular proposals to allow those consulted to give intelligent consideration and an intelligent response; adequate time must be given for this purpose; and the product of consultation must be conscientiously taken into account when the ultimate decision is taken."
[22]In R. (Sardar) v Watford BC [2006] EWHC 1590 (Admin), Wilkie J. considered when proposals could be described as being in a formative stage: “29… The description " a formative stage" may be apt to describe a number of different situations. A council may only have reached the stage of identifying a number of options when it decides to consult. On the other hand it may be gone beyond that and have identified a preferred option upon which it may wish to consult. In other circumstances it may have formed a provisional view as to the cause to be adopted or may "be minded" to take a particular course subject to the outcome of consultations. In each of these cases what the council is doing is consulting in advance of the decision being consulted about being made. It is, no doubt, right that, if the council has a preferred option, or has formed a provisional view, those being consulted should be informed of this so as better to focus their responses.... In my judgment, however, it is a difference in kind for it to have made a decision in principle to adopt a policy and, thereafter, to be concerned only with the timing of its implementation and other matters of detail."[23]In carrying out its functions, including the policy choice to favour Extra Care housing, the choice of the Troed y Ton site, consulting over the decision to close the care home and the making of the decision to close the care home, the Council had to act in accordance with section 49 A of the Disability Discrimination Act 1995, which states:
"(1) every public authority shall in carrying out its functions have due regard to – (a) the need to eliminate discrimination that is unlawful under this Act; (b) the need to eliminate harassment of disabled Persons that is related to their disabilities; (c) the need to promote equality of opportunity between disabled persons and other person; (d) the need to take steps to take account of disabled persons' disabilities, even where that involves treating disabled persons more favourably than other persons; (e) the need to promote positive attitudes towards disabled person; and (f) the need to encourage participation by disabled persons in public life."
[24]In his skeleton argument, Mr Engelman contended that the DDA equality duty was akin to a "target duty" (see De Smith “Judicial Review” 6thEdition, para. 5-067). However, he did not at the hearing of the application pursue that contention. Instead, he contends first, that the Council complied fully and in substance with the equality duty, or, in the alternative, that, having regard to the extensive discussion with residents and their families about the impact of closure, and even if they are in breach of that duty, no finding of illegality should follow.

The Consultation and Decision Making Process

[25]I have referred to the fact that there were two applications for a Social Housing Grant prior to the instant successful application. The history leading up to the Cabinet meeting of the 14th of October 2008 is set out in an email from Susan Cooper to a relative of a resident, namely, Mr Pengilly, dated the 31st of October 2008 (page 205, trial bundle (“TB”)).[26]The successful application was sent to the Welsh Assembly Government on the 31st of October 2007. The outline bid referred to Troed y Ton as a potential site. Notification of approval of the bid was received on the 14th of March 2008. After that further preparation needed to be carried out to confirm whether the council would be able to go forward and develop Extra Care based on the approval. That preparation included a site appraisal, development of a placement strategy, a visit to another authority to gather advice and information, discussion with local members, advice from the human resources and legal teams and discussion with the Care Standards Inspectorate for Wales (“CSSIW”). After that preparation an outline proposal was taken to the Corporate Management Board and to Cabinet members in August 2008 for a direction to be given as to the way forward. Between then and the announcement to residents, families and staff on October 9, 2008, further work included the engagement of trade unions, communication and correspondence and the commissioning of advocacy (Age Concern were asked to act as advocates for the elderly residents).[27]On the 9th of October 2008, Susan Cooper arranged to inform staff, residents and relatives about the proposal to close the care home. That was done by letter. The proposal was to go to Cabinet on the 14th of October 2008. Miss Cooper also arranged 3 "information sharing sessions" with relatives of the residents on the 13th, 14th and 16th of October (TB 175).[28]From pages 176 to 197 inclusive of the bundle Miss Cooper annexes to her statement summaries of the questions that were asked and the answers that were given at those sessions. There were complaints about the amount of time given for consultation prior to the Cabinet meeting. Strong views were expressed about the closure of the home and at page 177 Miss Cooper records the question "if it goes ahead, what is the point from further meetings?" She then records the answer given by her:
"The decision is " in principle" which enables time to gather views"
. Explanations were given at the meetings of why the council was proposing the development of Extra Care housing. There was an explanation of why the care home had been selected. The relatives were also told, as was the case, that the report to Cabinet (pages 546 to 551, with annexes from 552 to 605) was on the council's website. Internet facilities were available at the care home with assistance for the residents.[29]One of the appendices to the report to the Cabinet for the meeting of the 14th October was a placement strategy (Appendix E, TB 592-597). It considered the steps which ought to be taken to minimise disruption and distress to residents should the home be closed and proposed that an experienced social worker should be identified to assess and help residents. The strategy document was probably prepared in early October 2008. Under the section “Notification”, the document states “The table below sets out the timetable for the initial notification of the proposal to close Troed y Ton if approved by Cabinet on 14th October 2008”. The table includes a reference to the meetings with relatives referred to above.[30]In my judgment, the timetable strongly suggests that the intention of the Council’s officers involved with the proposal was that consultation, not simply about relocation, but generally, was to continue after the Cabinet meeting of the 14th October, and that the officers considered that that meeting would be part of the formative process of deciding on whether Troed y Ton would be closed.[31]It is not, in my judgment, inconsistent with the Defendants’ case that the relocation strategy document contains (TB 594) detailed preliminary proposals for resettlement of the residents at the care home and a recommendation that all bed vacancies should be frozen with immediate effect. It would have been wholly unfair to accept further residents (who in any event would probably have been deterred by the threat of closure). Susan Cooper justified the decision to have delayed the decision to inform staff, residents and relatives to the 9th October, yet to allow further admissions prior to that on the basis that a prior announcement would have blighted the home.[32]It is right to say that there is no reference in that strategy document to the Equality Duty. However, the steps taken by the Council to appointing an advocate (Age Concern) for the elderly and infirm residents is a practical step of substance towards complying with that duty.[33]The Council does not contend that the consultation prior to the Cabinet meeting of the 14th October would have been adequate to satisfy the Gunning requirements, nor, they contend, was it intended to. However, they do point out that even as at that date, substantial information about the proposal had been published and accessed by at least some of the residents and relatives. A long, detailed and well reasoned email from Mr. Pengilly, a relative of one of the residents, (TB 200-202) was received by Susan Cooper and responded to on the 13th October.[34]At TB 524 is the report of the Corporate Director, Wellbeing (one of the Council officers) to Cabinet, for the meeting of the 14th October 2008. The report seeks Cabinet approval to progress with partners the development of Extra Care housing on the Troed y Ton site. It explains the rationale behind the Extra Care scheme and points out that if closure is approved by Cabinet a placement strategy had been developed. The recommendation at TB 528 is that Cabinet approve “in principle”, first, the closure of the care home, second, the continued work with partners, including V2C to develop a service specification for the Extra Care facility and, third, consultation with individual residents and their families to ensure that appropriate personal plans were developed for the ongoing care.[35]It is right that the equality duties are not referred to in the report and that the Cabinet was told that there were no implications for the policy framework.[36]The minutes of Cabinet for the 14th of October 2008 (TB 50 - 59) contain a resolution in accordance with the report but it is to be noted that in addition to the approval in principle of the closure, the continued work with partners and the consultation on personal plans, the Cabinet also resolved that the chairperson of the Health and Well-Being Overview and Scrutiny Committee should be invited to look at the process that was being employed.[37]The reason why that additional resolution was passed can be seen in the body of the minute at page 52, namely:
"The Deputy Leader queried the consultation process that had taken place to date with the individuals concerned with this proposal. He was informed that residents had been informed of proposals but that the consultation with individual residents and families would be undertaken in the immediate future. The Head of Adult Social Care informed the Cabinet had discussions with families in residence and commenced but were at an early stage. Three planned meetings, to share information, had been scheduled this week. They will also be opportunities for further discussions, help and support for individual families. In addition Age Concern had been requested to provide an independent advocate to ensure that due process was carried out."
[38]The minutes also indicate that the Cabinet Member for Wellbeing extended a personal invitation to all residents and families to ask questions and discuss the issues with him. There was reference to a number of concerns that had been expressed by members of the public.[39]Having regard to the facts that there had already been extensive discussion in the relatives meetings about the preferred options of the Council and the feasibility study, that the consultees were told of their right to put letters before the scrutiny committee about the proposed closure and that there was in the Council meeting of the 14th of October concern raised about the consultation process, it is not, in my judgment, possible fairly to read the minutes of the Council meeting or the resolution as evidencing that a final decision had been taken about closure, or that the Council had made up their collective mind about that decision.[40]The fact that the Cabinet resolved that there was to be consultation with residents and their families to ensure that personal plans were developed for ongoing care and with staff about redeployment options does not in context mean, in my judgment, that the closure decision had been reached save for matters of detail. It was perfectly proper and understandable for there to be two processes of consultation going forward. The reference to Scrutiny is consistent with Cabinet wishing to ensure that consultation about the decision to close was appropriately conducted.[41]As had been recommended by Cabinet, the Scrutiny Committee did indeed "call in" the "in principle" decision and a report of the meeting of the committee which took place on the 24th of October 2008 is at TB 540 it is important to note paragraph 3.6 of the minute:
"As a result of discussions between the Chair of the Health and Well-Being Overview and Scrutiny Committee and community representatives, the Chair invited members of the local community to submit written statements to the overview and scrutiny unit. In total, 14 written submissions were received which have been summarised into themes contained within the body of appendix H."
[42]That appendix can be found at TB 603. Of the 14 submissions, two were from current residents of Troed y Ton, seven were from family members of residents, one was from a local resident and four were from people who had other connections with the care home. The main issues and concerns expressed in letters and e-mails received by the Council were summarised including the issue of consultation, the benefits of the extra care housing scheme, the impact of closure and the quality of the site appraisal. There could be no doubt that the Council were aware that criticisms were being made about the fact of closure. As Mr Engelman, representing the Council, put it, several of the themes raised "why" questions.[43]The minutes of the meeting of the 24th of October 2008 (TB 606) show the presence of the Scrutiny Manager, Ms David-Knight, the Cabinet member for Wellbeing and the corporate director of Wellbeing. Moreover the committee confirmed that they were happy that community representatives, including family members of residents, local councillors and others should address the meeting. Representations had been received from the local MP and were similar to those contained in the summary of themes referred to above. Representations had also been obtained from the GMB union. The corporate director of Wellbeing indicated to the meeting under the heading "what will happen next?":
"consultation, risk and needs assessment with residents and families -- this is the start of the process, not the end."
[44]Community representatives raised concerns about consultation but also about the decision to close and it is important to note that members of the Council were also asking the officers why the care home had been identified as the most suitable site for developing Extra Care housing and whether sufficient attention had been given to other possible sites.[45]Following a debate, the committee decided that the Cabinet decision of the 14th of October 2008, relating to the development of Extra Care housing should be referred back to Cabinet in order that a number of issues should be explored in significantly more detail. Those issues included the rationale behind the identification of Troed y Ton, exploration of residential places in each care home of the Council’s, to include details of current waiting lists, financial details, the feasibility of moving some residents with dementia and the consideration of other Council owned sites. Again, Mr Engelman described those as "why" questions dealing directly with the issue of closure.[46]Mr. Engelman submitted, in my judgment, persuasively, that if a decision on closure had been reached on the 14th October and the Council had closed minds, then there was no point at all in the resolution of the scrutiny committee of the 24th October, the meeting of which had specifically been requested by the Cabinet on the 14th.[47]It is, of course, conceivable, that the members of Cabinet who met on the 14th misunderstood the thrust of the recommendation by its officers and intended that the issue of closure should be disposed of by them there and then. That seems to me inconsistent with the reference to Scrutiny, but even were that so, it is not contended by the Claimants that it is impossible in law for the Council to change their mind and to revert to a full and fair consultation, always assuming that the Gunning principles were followed.[48]In Sardar’s case, Wilkie J. did decide that the Defendants had “burned their boats” on the de-limitation issue although he considered that:
" Had they acknowledged what had gone wrong on the 5th September, decided to proceed on a basis that delimitation was one of the options it was considering, albeit a preferred one, and consulted on that basis, then it would have been open to have them to decide to delimit."
[49]In Sardar’s case, Wilkie J., at paragraph 33, considered that the decision making process, where consultation is required, has to be both substantively fair and have the appearance of fairness. However, while the judgment in Sardar’s case contains important statements of principle, the decision appears to me to be particularly fact specific. It was clearly of importance that the police, who, in an earlier consultation had expressed a view on delimitation, may, as the Judge found, have been deterred from expressing a view on the challenged decision as a result of feeling that the decision had already been taken before they were consulted. Moreover, a letter from the claimant’s solicitors complaining that a decision appeared to have been taken in advance of consultation was not shown to the members of the committee. Thus it must have been less obvious to the committee that it was necessary for them to take an entirely fresh view of the decision after proper consultation had taken place.[50]In contradistinction to that situation, there is persuasive evidence from the minutes, even as early as the 24th October, that the members of the Scrutiny Committee were concerned that more consultation should take place and communicated those views to the Cabinet. Not only that, but further important consultation had by then taken place and had clearly been regarded as important by the councillors. Even if I were to find that the Council had moved from the formative stage of the decision to close the care home at the meeting of the 14th October 2008, I am of the view that the intervention of the scrutiny committee had sufficiently remedied any shortcomings as of its meeting of the 24th. No one reading the minutes of the meeting of the 24th could think that the members of the committee were not looking with minds open at the new material and oral submissions received.[51]The Council contends that, even if one were to “freeze the camera” at the 24th October 2008, by which time there had only been about 2 weeks of discussion, it is quite clear that by that stage there had been extensive consideration by the residents and their families of the proposal, the reasons for the proposal and the deficiencies, as outlined in the minutes and in the annexes to the report to that meeting, in the process that had taken place to that date. That the Council still demonstrably and patently were keeping an open mind and wished the consultation process to continue ( a process which had obviously become well known to the residents and their families, as well as in the local community, to the staff and to the staff trade union, as well as to the local MP) is established by the resolutions of that meeting. I consider that these contentions by the Council have substance and are correctly founded.[52]Although Mr Cragg for the claimants contended that between the 14th and the 31st of October meetings there was no further invitation to residents, disabled groups of families to participate further in the consultation there is little doubt from the additional representations made at the scrutiny meeting that residents, their families and other interested groups were aware that they could continue to express their views not simply of what might happen to the residents after closure but on the issue of closure itself, on the selection of the home and on the validity of the Extra Care policy.[53]The matter went back to Cabinet at a meeting of the 31st of October 2008 and in the appendix to the report to Cabinet (TB) it is stated:
"There appears to be little exploration of the likely impact the closure of Troed y Ton will have upon the current residents and their friends and families prior to the publication of the Cabinet report. Research suggests that moving frail and vulnerable older people from one care home to another has the potential to seriously jeopardise their health. Members consider that the lead in period to the announcement of the potential closure of Troed y Ton to have been distressing to residents, families and staff and believe that their viewpoint now needs to be drawn upon to ensure the decision-making process is as sensitive as possible to meeting their needs and aspirations."
[54]While that statement might suggest that councillors considered that consultation had been inadequate it should be recalled that the officers who had originally put the proposal to close before the Council had clearly anticipated a longer period of consultation and had prepared a timetable consistent with that and had given answers to the public which clearly indicated that consultation about the decision to close was intended to and did continue after the meeting of the 14th of October 2008.[55]The statement also indicates how committed were the members of the Cabinet to as full a consultation as possible, including on the issue of closure.[56]Again it may be noted that there is no reference in the report or in the minutes of the meeting to the Council’s equality duties. However, one should note that if the substance, rather than the form, of the duties imposed by section 49A, is considered up to this point, the Council had, even prior to the announcement of the proposal to close, appointed an advocate for the elderly infirm at the care home, namely Age Concern, had invited both residents and their families to comment not only on the effects of the closure but on whether the closure should or should not take place and also on the Extra Care policy and identification of other potential sites, and had assisted the residents to communicate their views. At the scrutiny meeting they had permitted spokespersons for the residents’ views and, (TB 604) had noted that residents had experienced a sense of helplessness in respect of being able to influence the decision-making process. Councillors had also noted that there was concern about the lack of a clear explanation as to why the care home had to close when residents and families considered it to operate in a way that met the physical and emotional needs of its users.[57]Although there is a limited amount of information available about the input of elderly infirm persons into the Extra Care concept, the minute of the scrutiny committee (TB 609) indicates that officers advised the committee that consultation on the broader concept had been ongoing with a number of older people’s and carers’ groups. Specific consideration was given at that meeting to the needs of dementia sufferers.[58]In the appendix to the report to the meeting of the 31st of October 2008, already referred to above, (TB 616) it is clear to me that the Council were considering the disproportionate impact of the proposals on disabled residents.[59]The report of the Corporate Director, Wellbeing, (TB 618 – 634) to the meeting of the 31st of October 2008 is a detailed exploration of the list of matters of concern expressed by the scrutiny committee and deals not just with the detail of implementation of the proposed closure but also that of the merits and demerits of the closure itself. At 4.8.5 of that report the Director states:
"As part of the engagement with residents and families, a number of very real and valid concerns have been voiced. It is now planned to enter into a period of engagement with residents and families on an individual basis to discuss these concerns in more detail and to complete a detailed assessment, including the risk and impact of moving, to assist in planning for individual residents’ future."
[60]Age Concern had continued to be instructed as advocates for the residents during this period (TB 625).[61]It is right that the minute of the Cabinet meeting of the 31st of October 2008 does not mention that the closure of the care home was "in principle". Susan Cooper understood it to be in principle and a Cabinet member, Mr. Lyn Morgan, in his statement, at TB 474 (para 26) and the leader of the Council, Mr. Melvyn Nott (TB 483 para 26) both confirm that the resolution to close was “in principle”, which I accept. Indeed it is of significance that both those gentlemen understood the decision on closure, made similarly “in principle” at the 14th October meeting, to be subject to consultation with individual residents and their families in order to ensure that the Cabinet's final decision would be taken in the full knowledge of the residents’ views (TB 472 paragraph 14; TB 481 paragraph 16).[62]It is of course an obvious point that there would be little purpose in passing an almost identical resolution to that of the 14th of October 2008 in relation to closure if the council were not continuing consultation and had closed their minds on the issue of closure. The behaviour of the Council is consistent with the issue of closure remaining in a formative stage, with consultation continuing and with councillors being concerned about the format of that consultation and about the issues that should be discussed with residents, and thus, with the elderly infirm.[63]In the period from the 1st November 2009 to the 3rd March 2009 a petition containing 1725 signatures was presented to the Mayor at the meeting of the Council on the 5th November. Susan Cooper had further letters sent out to residents and their families on 27th November 2008 and on 1st December 2008 a dedicated social worker was appointed for each of the residents who did not already have a named social worker. On 1 December 2008 there was a meeting with Mr Jacka, who represented a local action group, and a Ms Grant, to discuss the process that the social work team would follow with the residents and their families in relation to consultation. Mr Jacka’s concerns that individuals were being rushed was dealt with. On 15th January 2009 consultation with individual residents began in accordance with the 31st October 2008 resolution.[64]Included in the trial bundle is a number of detailed impact assessments carried out under the supervision of the Service Manager. 19 of the 26 residents at the home participated. The elderly infirm residents were assisted in putting forward their views by social workers. Their views were recorded in detail. Those views were put before the Council. They included, not only views on the impact of closure but also on the issue of closure. In the context of this case they are very important not only on the issue of consultation but also evidencing the substantive application of section 49A rather than lip service being paid to it. Ms Cooper summarises the process of further (and, as the Council contends) ongoing consultation in paragraphs 88 to 93. Strong and clear views were expressed. They were, ultimately, summarised succinctly but fairly. The summary was then placed before Cabinet. Where individuals suffered from dementia, relatives spoke on their behalf. Age Concern continued to be the instructed advocate.[65]Mr. Cragg, for the Claimants, submitted that the further consultation which was summarised for the meeting of the 3rd March 2009 was really about helping people think about the change which was proposed rather than about the issue of closure. It may be that most of the consultation issues did deal with the impact of closure but a significant number did deal with the “why” question, that is, the merits of closure. It would, after all, have been a most inefficient consultation process which postponed consultation about the methods of implementing closure until after the final decision to close had been taken.[66]On the 3rd February 2009 the Claimants’ solicitors wrote to the defendants to say that a decision to close the home was being taken without a proper consultation process and inviting the council to conduct a full and transparent consultation process on the closure. See TB 104. It is not clear to me whether that letter was actually put before the Cabinet. By a letter of the 18th February 2009 the Council responded by saying that there had not been a final decision to close the care home and that the consultation process was going on.[67]It must be asked at this stage whether the response of the Council was mere camouflage, but the process I have outlined above satisfies me that the response to the claimant's solicitors represented an accurate indication of what was a continuing process.[68]The report of the corporate director to the Cabinet meeting of the Council on the third of March 2009 (TB 640) indicates that consultation had included a group known as Troed y Ton action group (TAG), representatives from SHOUT (representing the voice of the elderly), members of the local community and the Older People's Commissioner. Inevitably these representative groups would be representing not just the views of the elderly but the views of those elderly who were infirm or disabled. This is again evidence of a substantive compliance with the section 49 A duty. It is also important to note that the advocacy service provided by Age Concern, although it took a little while to become trusted by the residents and their families, subsequently proved itself to be independent of the Council and was recognised as having made an important contribution to the consultation process.[69]While the report summarises the teams from the consultations (not all the residents were against the closure) the appendix to the report contained a far more extensive summary of the views of those consulted. It should also be noted that the local press had taken up and supported the cause of keeping the care home open. It can hardly be doubted that local councillors would be well aware of the importance of keeping an open mind on what was a controversial issue.[70]The minutes of the meeting of March 3rd 2009 contain a summary of the presentation of the corporate director. At TB 350 she is reported as stating:
"She informed members that the consultation process had revealed a great deal of support for the home from within the community and an appreciation of the high quality of care provided by dedicated staff. Questions had been asked about why the Troed y Ton site in particular had been chosen and issues had been raised about the process and how people were informed about the proposals in the first place. The directorate had reflected on the process and the methods of communication used and learned lessons for the future."
[71]The Head of Adult Social Care also explained that all residents had been seen on a one-to-one basis by the social work team. The dedicated social worker for the home had been actually based at the home over a three-month period to be able to respond to events as they had happened. I again note that that appears to be very relevant to whether the section 49 A equality duty had been performed.[72]The resolution of the Cabinet appears to me to be very important. It is set out at TB 652: “ Resolved: That Cabinet: -(1) Note the progress being made and the issues and views being expressed as part of the consultation process.(2) Allow the consultation process to continue.(3) Receive a report on 31 March 2009 when a final decision will be made."

That Cabinet: -

[73]Again, it might cynically be said that that resolution follows the letter received from the Claimants’ solicitors, but having regard to the consistent approach followed by the Cabinet and the Scrutiny Committee, I have little doubt that this represented a true effort by the Council to ensure that the views of the elderly and infirm and all interested groups should be represented in the debate that the council had to undertake.[74]A pre action protocol letter dated the 12th of March 2009 (TB 106) was sent to the council's legal department arguing that the current consultation process was defective and that a decision would be in breach of the disability equality duty. The response is at pages 109 and 110.[75]A further Scrutiny Committee meeting took place on the 16th of March 2009. Ward members for the wards adjoining the area in which the care home was situated were present at this meeting as was the cabinet member for Wellbeing and Mr Jacka and Mrs Walker both representing the residents of Troed y Ton. Mr Jacka and Mrs Walker were allowed to address the meeting. Again, individual consultations were considered although the meeting concentrated on the consultation process. The Scrutiny Manager suggested that the committee should listen objectively to all the opinions put forward at that day's meeting and should take a balanced view of the issue. Mr Jacka contended at the meeting that the Council had broken the law in relation to the consultation. Mrs Walker told the committee that she had met with councillors Nott, Sage and Morgan and had been informed that they had not seen the comments of individual residents. It should be noted that Councillor Nott and Councillor Morgan both disagree with that. Mrs Walker urged the Cabinet to reconsider their decision to close the care home and look at an alternative site. At TB 684 the minutes of the meeting record that a Councillor Jones advised that opinion in his community was strongly against the closure and that he had been inundated with letters and calls even from people living outside the village. Committee members were given the letters. Councillor Jones suggested that the way the proposed closure it been dealt with gave a distinct impression of a fait accompli. He contended that Troed y Ton was not the right site on which to establish an Extra Care facility in Bridgend.[76]Councillor Butcher said that although the consultation process had revealed anger and upset on the part of the residents to the decision, in her opinion their views at not being listened to. She concluded by urging Cabinet to take notice of the views of residents, families and staff and reconsider their decision to close Troed y Ton.[77]It is, in my judgment, difficult to conceive that councillors could possibly have been ignorant of the strength of feeling and the views of residents and the local community. This is the best evidence possible that the consultation process had been fair and successful.[78]This minute also contains an indication of the reaction of members of the Council to the views that they had heard. At TB 685 it is stated:
"Members suggested that despite the overwhelmingly negative responses by residents, families and staff, as outlined in the update report, the report also contained a statement "most residents.....are willing to think about their future", which seemed to be a contradiction. The Corporate Director - Wellbeing explained that was it was important to allow residents to express their views on the proposed closure and give them the opportunity to discuss any issues of concern to them, it was also important to enable them to talk about the future given that the home may be closing."
[79]That is a contemporaneous record which reflects the Council members balancing the issues and also the view of an involved member that consultation had been not only about the effects of closure but on the issue of closure itself.[80]At TB 687 the minute states:
"Where the council intends to consult with vulnerable groups to gauge impact or seek views on the reconfiguration of services, for the future, it is recommended that more inclusive and empowering forms of consultation be utilised and that strong efforts are made to communicate trust and respect for people's differing values, experiences and expectations in order to mitigate against the perception that Council - led consultative processes are pre-emptive or token."
[81]Although in the context of this application that statement might appear to be an admission contrary to interest, in my judgment it shows a self-conscious and careful Council that were keen to improve their processes. It is not decisive of those processes having failed in relation to the issue of closure. Indeed it gives me more confidence that previous records demonstrating appropriate consultation can be trusted.[82]The report of Ms. Knight-Davies to the meeting of the Cabinet on the 31st March 2009 (TB 692) summarises the resolutions of the Scrutiny Committee. There was also a report of the Corporate Director, Wellbeing, which begins at page 713. That report reiterates these summaries of the individual consultations that were brought before the scrutiny committee it clearly summarises the generally unfavourable views of the residents. Mr Cragg is right in indicating that it is in this report for the first time that mention is made of an equality impact assessment (EIA). The EIA can be found at page 741. Mr Cragg submits that there was no discussion of the impact of the proposals on disabled persons.[83]Inevitably, having regard to the fact that they were in the residential care home, the residents at the home were likely to be disabled and at page 741 the EIA refers to the main purpose of the initiative as being "to develop extra care housing scheme as an alternative option to residential care for older and frail older people." That section of the EIA makes it clear that the extra housing schemes, which is in itself designed to be a better way of caring for the elderly infirm, would require the closure of a residential home to facilitate the development. Thus it seems to me that the author of the EIA was clearly indicating what the impact would be on the disabled and infirm residents of Troed y Ton. Indeed the second paragraph of Annex 7 makes that clear (741). At page 742, the EIA indicates who would be directly affected by the initiative. At page 743 it correctly indicates, in my judgment, that the council had taken specific action to involve people from equality groups in the planning stages significantly referring to disabled people. I have already referred above to the consultations, either with or without the assistance of relatives, with the residents, enabled by the instruction of social workers and the advocacy of Age Concern. Under the heading "Briefly describe what you did to involve people from the different equality groups”, the EIA states:
"The concept of extra care has been included in wider discussions which have engaged older people as part of the development of our strategy for older people living in Bridgend. The current residents of Troed y Ton have not been involved specifically in formulating the proposed future initiative of the extra care scheme at Troed y Ton. The consultation for residents has focused on their individual situations to ensure that decisions made about the future of Troed y Ton were done so with a good understanding of the impact the changes would have on the individual residents."
[84]In fact, there had been consultations with groups representing the elderly in relation to the Extra Care policy (see above) although there is little detail about the consultation. Moreover, as the detailed summaries of consultations about Troed y Ton reveal, there had been discussion of Extra Care in that process. However, the issue before me, is whether there had been consultation about the closure of Troed y Ton. There had been, and that involved the elderly and infirm residents as well as groups which represented the interests of the elderly and infirm. Page 743 indicates that that consultation had also included the Older People's Commissioner.[85]Mr Cragg contended that the EIA report did not identify how many disabled people there were at Troed y Ton but he himself recognises that almost all the residents would qualify as such. He also contends that the EIA does not describe how the initiative would impact on disabled persons so that it can be seen that it would do so in a disproportionate way. However that seems to me to misunderstand what the EIA report is intended to achieve. It is intended to be an analysis of the council's processes rather than to be a summation of the processes themselves. The review above of those processes demonstrate, in my judgment, that the council had carefully assessed the impact of their proposals on the elderly infirm residents of Troed y Ton. At page 749 Mr Cragg complains that the report concludes:
"There is no evidence that there has been a disproportionate adverse impact on any specific equality group." however the previous sentence reads "
The service transition has impacted on the residents, families, carers and staff at Troed y Ton".[86]The Council officers who made the assessment were entitled to conclude that although the proposals to close the home would have a deleterious impact on the residents the Extra Care proposals would have a balancing beneficial effect on old and infirm people generally. The passage at page 749 does not ignore the impact on the residents - indeed it specifically refers to it.[87]The minutes of the meeting of Cabinet of the 31st March 2009 are at TB 695-701. The chairperson of the scrutiny committee presented a report and the minute reveals:
"She explained that the committee had taken into account the distress, anxiety and anger expressed by the petitioners and the many letters received opposing the proposed closure of Troed y Ton in drawing up its recommendations to Cabinet. The recommendations the Cabinet had been made in a bid to assist them in the robustness of the decision-making process"
[88]She further stated:
"As the residents at Troed y Ton would be most affected by the proposals the consultation was tailored to ensuring the views of every resident and their families was captured in detail.... The methodology used allowed individual residents and their families to express their views about the proposals and (my stress) to begin to explore preferences for the future should the proposals go forward."
[89]In my judgment that was an entirely accurate description of the process.[90]If the decision that I make is that the formative process of determining closure ended with a meeting of the 14th of October but I find that the Council recognised its error and then embarked on a full consultation process, I would have to consider whether the Cabinet continued to keep an open mind about the decision. On that issue, it is important to note from TB 698 that the Cabinet were informed of the opposition to the proposal were in receipt of a report from Age Concern, and that the report of the chairperson specifically stated "If the recommendation to proceed with the closure of Troed y Ton..."[91]At the meeting of the 31st March 2008, the Cabinet made what the Council contend was the final decision on closure. There is a number of statements from councillors included as part of the defendant's case. At TB 471 Councillor Morgan indicates that as at the 14th of October 2008 he remained open-minded about the recommendations in the report. At TB 472 he indicates that his view was that their approval in principle of closure was subject to consultation with individual residents and their families in order to ensure that the Cabinet's final decision would be taken in the full knowledge of the residents’ views. At TB 476 dealing with a meeting of the 31st of March he indicates that a number of councillors commented on how difficult the decision was to make. He indicates that he had considered the EIA and that he felt that the council had considered and complied with its equality duties. Hence he voted for the closure. He explains his decision-making. He had actually visited the home.[92]At TB 481 Councillor Nott says that he was aware when making the decision of the 14th October that if information arose from the consultation that persuaded him that the site should not be used for the Extra Care purposes and should remain a residential home, the Cabinet have the option of rejecting the proposal. That is clear evidence that the Council were still in the formative stages of making the decision to close the home after the 14th of October.[93]The decision of the 31 March 2009 went to Scrutiny but, as it was the final decision, it is unnecessary for me to retail that process.

Was the Consultation process unlawful?

[94]Having regard to the views expressed by the officers of the Council and two of the councillors themselves, the assurances given to residents and relatives in the arranged meetings both immediately before and after the 14 October 2008 that they would have a more extensive consultation and the chronology of those meetings, and having regard to all the matters I have set out above, I do not consider that it has been established that the decision of the 14th of October was a final decision leaving only the detail of implementation to be determined. Rather, I have concluded that it genuinely was a provisional or preferred option type of decision.[95]Undoubtedly there was criticism both by interested parties and by councillors of the limited consultation before the meeting of the 14th October, but I am satisfied that it always had been the intention of the officers of the Council for the consultation process to have continued after the 14th.[96]Even if I were wrong about that, I do not consider that the Sardar case goes so far as to hold that a decision-making body may not alter its first decision and hold fair and adequate consultation leading to a reconsideration of that decision. The process of consultation that I have outlined above, particularly that in 2009, was rigorous, fair and gave proper weight to the views of the elderly and infirm residents and two bodies representing their interests.[97]There is no evidence that the councillors who considered the decision again in the 31st October meeting had closed their minds against the possibility of keeping the home open. Indeed the evidence is that they founded a difficult decision and properly balanced in that decision the results of the consultation.[98]However my primary view is that the formative stage of the decision process continued up to the 31st March meeting. Consultation had been undertaken when the proposals were still at the formative stage; the consultees were given sufficient reasons for the proposals to allow them to give intelligent consideration and an intelligent response to the proposals; indeed very effective responses were given. Adequate time was allowed for the consultation and there is no doubt in my mind that the Council conscientiously took into account the product of the consultation.[99]The Gunning formula is in truth merely an expansion of the requirement that consultation must be fair. I have no doubt in this case that it was.

Disability Equality Duty

[100]I accept the submissions of Mr. Cragg that the first mention of the assessment of equality issues was in the report for the meeting of the 31st of March 2009 (paragraph 4.37, TB 722). However, I am quite satisfied that the officers of the Council contemplated that although the consultation process would begin on 9th October 2008 it would continue until a final decision was to be taken by the Council. It is, therefore, not surprising that the first mention of the council's equality duties should come before the meeting of the Council at which the final decision was to be made. It is contended by Mr Cragg that that the EIA made no mention of the disability equality duty under section 49 A.[101]While that may be the case, I have already considered, at paragraph 85 above the purpose of the EIA. It seems to me from consideration of the substance of the EIA that the officers of the Council had specifically in mind their equality duty. Indeed it seems to me that the whole form of the EIA is designed to ensure that the Council, in carrying out its functions, has due regard to the factors set out in section 49 A (1) (a) to (f).[102]Again, although the minutes of the meeting of the 31st of March make no mention of the disability equality duty at TB 476 Councillor Morgan indicates that he considered the Equality Impact Assessment and felt that the council had considered and complied with its equality duties. At TB 484 Councillor Nott goes further and indicates that his colleagues and he had regard to the EIA and were aware that individual impact assessments have been carried out by officers of the directorate. He is correct in that conclusion. He therefore indicates in his statement that he was of the opinion that the Council had had due regard to its equality duties.[103]The extent of the duty to have "due regard" to the various matters set out in section 49 A was considered by Davis J. in R (on the application of Meany, Glynn and Sanders [2009] EWHC 559 (Admin). At paragraph 50 his Lordship noted that the word "due" must add something and notes with approval the judgment of Dyson LJ in R (Baker) – v - Secretary of State for Communities and Local Government [2008]EWCA (Civ) 141 in which at paragraph 31 Dyson LJ said:
"In my judgment, it is important to emphasise that the section 71 (1) duty is not a duty to achieve a result, namely to eliminate unlawful racial discrimination all to promote equality of opportunity and good relations between persons of different racial groups. It is a duty to have due regard to the need to achieve these goals. The distinction is vital. Thus the inspector did not have a duty to promote equality of opportunity between the appellants and persons were members of different racial groups; her duty was to have due regard to the need to promote such equality of opportunity. She had to take that need into account, and in deciding how much weight to accord to the need, she had to have due regard to it. What is due regard? In my view, it is regarded as appropriate in all the circumstances. These include on the one hand the importance of the areas of life of the members of the disadvantaged racial group that are affected by the inequality of opportunity and the extent of the inequalities; and on the other hand, such countervailing factors as are relevant to the function which the decision maker is performing."
At paragraph 37 Dyson LJ continued:
"the question in every case is whether the decision maker has in substance had due regard to the relevant statutory need. Just as the use of a mantra referring to the statutory provision does not on itself show that the duty has been performed, so to a failure to refer expressly to the statute does not of itself show that the duty has not been performed. The form of words suggested by Mr Drabble to which I have referred above may not of itself be sufficient to show that the duty has been performed. To see whether the duty has been performed, it is necessary to turn to the substance of the decision and its reasoning."
[104]Dyson LJ also said that it was good practice for a decision maker to make express reference to the relevant statutory provision. Although that was not done in the minutes of the critical meeting it must be accepted from the statements of the councillors that in fact they were aware of their duty.[105]Davis J. considered a number of authorities including R(Brown) v Secretary of State for Work and Pensions [2008] EWHC 3158 (Admin). At paragraph 58 he summarised the Brown principles: "These principles included, amongst others, the proposition that decision-makers must in this context be aware of their duty to have "due regard" to the identified goals, that this involves a conscious approach and state of mind, and that the duty must be exercised in substance with rigour and an open mind, and it is not a question of ticking boxes. The need for keeping proper records was also emphasised.”[106]Davis J. also noted that Brown shows that there is no duty to have an EIA. In this case however there was indeed an EIA and one which conscientiously considered the processes carried out by the Council, properly summarised them and reached a supportable conclusion that the proposal did not have a disproportionate impact on the elderly infirm. I have already dealt with the criticism of that conclusion. The EIA was considered by the council when making their final decision. Insofar as “ticking boxes” is concerned there is actually a record of the Council having due regard to their duties.[107]However as both Davis J. and Dyson J. stress the court must look the substance of the decision-making process. Here, there was specific consultation with the elderly and infirm residents. There was consultation with the relatives of residents. Sometimes relatives were consulted when the residents did not want direct consultation or, more importantly, were not capable of direct consultation. Thus the consultation specifically took into consideration the particular characteristics and needs of the persons most directly concerned by the decision.[108]The council appointed social workers specifically to take the views of the relatives even when there had been responses already received. A full-time social worker was appointed for a three-month period in the home for liaison purposes. An advocate, Age Concern, was also appointed to represent the residents. There was consideration of the views of groups representing the elderly. It cannot seriously be argued that those groups did not specifically advance arguments based on the fact that most if not all of the residents were disabled. There was careful recording and noting of consultation with the elderly, their relatives and their representative groups. The consultation shows that the real problems of closure produced for the residents (such as shock, distress, confusion, loss, loss of friends, loss of a home) were established and recorded. There was specific consideration of the impact of the closure on those suffering from dementia. A proper summary of the views expressed in the consultation was put before the decision-makers in writing and orally. Spokespersons were permitted on behalf of the residents to address the decision-makers. Consideration was given to the views of the elderly in relation to the Extra Care policy both when it was adopted and during the instant consultation process.[109]The council had not yet finalised its "Corporate Equality Scheme". It had however produced a draft which indicated:
"The disability equality duty requires us to do more than simply consult stakeholders and staff. It gives us a duty to involve disabled people to identify our priorities. Involving disabled people is not a one-off, "tick box" exercise. We want to benefit fully from disabled people's views, experiences and ideas, and from organisations that represent disabled people, in order to plan action now and in the future."
[110]His Honour Judge Mackie QC (sitting as a deputy High Court judge) commented in the case of R(Chavda) v London Borough of Harrow [2007] EWHC 3064 (Admin) that: “ I recognise that the general duty on the Council under section 49A is only to have "due regard" to the listed considerations (but as I have mentioned the code states that this requires more than simply giving consideration to the issue disability). These are important duties nonetheless including the need to promote equality of opportunity and to take account of disabilities even where that involves treating the disabled more favourably than others. There is no evidence that the legal duty and its implications were drawn to the attention of the decision takers who should have been informed not just of the disabled as an issue but of the particular obligations which the law imposes."[111]Having regard to the contents of the EIA and to the statements of the councillors I am satisfied that the substance of the section 49 A duties was drawn to their attention and that they had them in mind. More significantly, having regard to the matters that I have listed above I am wholly satisfied that the Council, in their decision making process in relation to the closure had both due and practical regard to the listed factors. I also consider that the Council had regard to its own draft equality scheme.[112]It follows that I conclude that the decision to close the care home was made having undertaken in fair and proper consultation and having had due regard to the Council’s section 49 A duties.[113]Having regard to that conclusion it is not necessary for me to do more than briefly turn to the Council’s alternative arguments on relief. If I had not reached that conclusion I would not have been satisfied that the possible loss of the Assembly grant, money already expended and possibly irrecoverable and the small number of residents remaining in the home were factors that should result in my denying relief or giving declaratory relief. I am not satisfied that there would be no justification for re-embarking on consultation or reconsideration of the disability equality duties. There were, in my judgment, good reasons for not commencing judicial review proceedings before they were commenced. One of those reasons is the availability of public funding.[114]However, in the result, the applications are dismissed.