B & Ors, R (on the application of) v Worcestershire County Council [2009] EWHC 2915 (Admin)

Case No CO/4290/2008

[2009] EWHC 2915 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

THE ADMINISTRATIVE COURT

Venue Royal Courts of Justice

Date Friday, 3rd April 2009

Strand

London WC2A 2LL

B e f o r e:

MR JUSTICE STADLEN

Between

THE QUEEN ON THE APPLICATION OF B & OTHERSClaimant

Between

WORCESTERSHIRE COUNTY COUNCILDefendant

Computer-Aided Transcript of the Stenograph Notes of

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Miss K Markus (instructed by Public Law Solicitors) appeared for Claimants

Miss J Richards (instructed by Worcestershire County Council) appeared for Defendant

J U D G M E N T

[1]MR JUSTICE STADLEN: This is an application for judicial review of a decision taken on 8th February 2008 by and on behalf of the defendant, the Worcestershire County Council, to close the Pershore Day Care Centre.

[2]On 7th May 2008 Williams J made an order that the centre be not closed until the application for permission to apply for judicial review had been determined or further order. On 22nd October 2008 Mr Neil Garnham QC, sitting as a Deputy High Court Judge, granted permission for judicial review on four grounds only.

[3]It is my intention, in the interests of speed and economy to read into this judgment extracts from certain documents and when the judgment is circulated in writing it will then be open to members of the public to see the entire contents of the judgment. I do so only in the interests of not wasting the time of the court staff and counsel in needlessly reading out large extracts of documents.

[4]The claimants are three out of the four full-time adult service users who attend the Pershore Day Centre. I will refer to them as B, H and C in this judgment. The fourth user, who is not a claimant in these proceedings I shall refer to as CT. The proceedings are brought by the father and litigation friend of the first claimant and the mothers and litigation friend of the second and third claimant.

[5]The claimants' physical and learning disabilities are profound. They each require 24 hour care and support. It is the claimants' case that for most of the time they require one-to-one care and sometimes they require two-to-one care. The acronym "PMLD" is commonly used to describe their disability, meaning profound and multiple learning disability. The details of their needs, as well as those of CT, are set out in the witness statements of the father and litigation friend of B, who I shall refer to as JB, the mother and litigation friend of H, who I shall refer to as JH, the mother and litigation friend of C, who I shall refer to as PC and the mother of CT, who I shall refer to as KT.

[6]By way of summary, the first claimant, B, lives at home with his parents and has done all his life. He was born with a syndrome caused by a genetic disorder which has resulted in severe learning disability and multiple physical disabilities. As a result of his severe physical and learning disabilities he relies on others for all aspects of his personal and daily care. He has no ability to communicate. B has attended Pershore Day Care Centre since 1988.

[7]The second claimant, H, has profound learning and physical disabilities. He has to be supported with all aspects of his personal care because he is unable to move independently other than head movement and some involuntary movement. He can communicate by eye contact using his head or using his hands although his communication is very subtle and those involved with his care have to be aware of his facial expressions. He has attended Pershore Day Care Centre since 1988.

[8]The third claimant, C, has a life limiting syndrome which causes profound and multiple disabilities severely affecting his ability to carry out day-to-day routines. He is therefore dependent on very intensive assistance from others for all aspects of daily life. He has no ability to communicate with others. He has attended the Pershore Day Care Centre on a daily basis for approximately four years.

[9]The fourth service user, CT, has profound physical and learning disabilities as a result of medical negligence at birth. He relies on others to provide for all aspects of his daily care needs. He cannot communicate directly, although if someone knows him well they can tell if he is upset, distressed or happy. He has attended the centre since around 1988.

[10]It is the claimants' case that the needs of these service users are such that they require one-to-one assistance from care staff for almost all of the day and in respect of a number of their needs they require two-to-one assistance. Illustrations of the kind of intensive assistance required throughout the day is described by their parents in witness statements prepared and served by JB, PC, KT and JH.

[11]The third claimant, C, is eligible for 100 per cent health care funding and the health service pays for one-to-one staff support on a daily basis. That will be relevant as will be seen. There are times when he requires two-to-one staff support and on such occasions he draws on the other staff resources at Pershore and that will also be relevant.

[12]The defendant has assessed the community care needs of each of the claimants. The most recent community care assessments were before the court. They were produced at the request of the defendant because of the proposals to review provision at Pershore. No care plans were produced. The assessments set out details of the intensive assistance required by each claimant. They were before the court and by way of example, in relation to B, there were negative entries in respect of a large number of activities where the question was:

"Can the person do the activities", the alternatives being "

Yes, with help", "No" or "Not known". As I say, in each case the answer was "no" and the activities ranged from getting into and out of bed, managing continence, washing, showering, dressing, feeding, cooking, heating a ready meal, preparing snacks, preparing a hot drink, managing medication, making their bed and shopping. In respect of his mobility, it was recorded that he uses a matrix wheelchair which has been adapted to support his posture and provide comfort. He has no ambient mobility. When lying on the floor he will occasionally pull himself across the floor for a short distance. This will usually be because he is eager to handle something which he has seen. He receives physiotherapy input once a week while at the day centre and carers are to undertake passive exercises in order to maintain his flexibility and circulation. Recommendations from the report indicated the need for daily exercise and input involving a range of equipment often requiring the support of two people to achieve. There is a possibility of chest infections which needs to be monitored regularly by his carers and his physiotherapist. Regular arm exercises, use of a cycling machine and appropriate positioning, particularly eating and drinking, all assist in maintaining a clear chest. To encourage optimum posture his physiotherapist has recommended that he is assisted to a variety of therapeutic positions in side lying, prone lying, over a gym ball and kneeling.

[13]The equipment needed to undertake that is available at the day centre and used with him on a daily basis. Some of the equipment and associated exercises need the assistance of at least two people. He occasionally suffers from redness on the hips which requires monitoring due to his having periods of immobility in his chair and poor circulation. He needs to be able to change position frequently in order to prevent pressure areas developing. The use of a hoist is required in order to do that. He suffers double incontinence both in respect of his bowels and bladder. He requires a bowel management programme and wears incontinence protection at all times.

[14]The tones of his vocal expressions change when he is experiencing discomfort, pain or frustration. He will then lower the tone of his vocalising and make groaning type sounds. It is reported that it is important for anyone caring for him to familiarise themselves and be aware how to interpret his verbal and gestural communication. Under normal routine for leisure, occupation, education and employment it is recorded that a considerable part of his daily routine involves his personal care and exercise routine. Many tasks in these areas are very time consuming and require the use of a variety of aids and two carers. He enjoys spending time in the local community, particularly going for walks in his wheelchair with others.

[15]Under "getting about" it was recorded that he requires full assistance with any outdoor mobility, transport and travelling. Under "risk plan" it is recorded that he needs to rely on others to understand his needs and support is required in order to keep him safe and free from harm. Under "neglect", it is recorded that due to his complex disabilities he would be at significant risk in relation to his physical, emotional and psychological needs without the full support and intervention of his carers. He appears physically unable to cry and therefore this would not be able to be used as an indicator that he was in pain or distressed in any way.

[16]Under the assessor's analysis of the situation it was recorded that the current care package provided for B and his family includes regular respite care at Pershore short breaks service, a day care service at Pershore five days a week, and both Mr and Mrs B feel that without the current level of service currently provided they would find the continuation of care within the home environment extremely difficult.

[17]It is recorded by way of summary that B is totally dependent on very intensive assistance from others in order to maintain his health and well being. Without frequent and regular monitoring plus intervention throughout the day significant health problems would occur. Due to the complexity of his disabilities he is unable to communicate his basic needs to others and has to rely therefore on the skills of his carers to recognise the changes in vocalisation, body language and gestures to provide effective support. In conclusion it is reported that:

"The current level of service and service provision is both appropriate and valuable."

Under "Options considered for intervention" were recorded, among other things, the following:

"[B] would need to be able to access all the specialist equipment that he currently uses on a daily basis in order to:- a] maintain his health and level of mobility. b] assist [him] and his carers with safe moving and handling. The availability of staff should be high enough to ensure that:- a] [He] is supervised at all times. B] [That his] current exercise, personal care and feeding routines are followed each day and there is always the availability of a second carer to ensure safety when moving and handling. c] [That he] remains free from harm."

[18]Under "Recommendations for physiotherapy" it is reported that:

"•[He] enjoys and benefits from the use of the walking harness and ceiling tracking once or twice a week. He is able to use this for 10 to 15 minutes and requires assistance of 2 people. • To encourage active extension of the trunk and legs [he] is positioned over a roll or 'peanut' shaped ball and encouraged to stretch his legs and his arms, lifting his head to look at objects, cars and lights. He needs the assistance of 2 people to gain and benefit from this activity. Ideally this should be carried out daily for 15 - 20 minutes."

[19]It is apparent from that summary that B's disability is very profound as are his needs and it is therefore of no surprise that his parents, as the parents of the other claimants, are acutely concerned and involved in any plan which would involve moving the claimants from the Pershore Day Centre to another centre. That is, in my judgment, a perfectly understandable and legitimate concern. It is, of course, not conclusive in respect of the application that is before me.

[20]The application that is before me is by way of challenge to the decision to close Pershore Centre, but that decision cannot be taken in isolation because the rationale for the decision is that there would be a reorganisation of not only Pershore but two other facilities within the defendant's jurisdiction, Perryfields and Cherry Orchard, as well as what have been described in this case as certain satellite centres. It is a part of, and was a part of the basis on which the decision to close Pershore was both recommended by Council officials and accepted by the Council that the claimants would move from Pershore once it was closed, in the case of H, to a facility in Evesham, and in the case of the other two claimants and CT to a new configuration of Cherry Orchard following a closure of Pershore and Perryfields.

[21]In essence, the challenge to the decision falls into two categories. The first is a submission that the decision to close Pershore was irrational in the Wednesbury sense and/or unlawful, in that it was taken without sufficient or reasonably sufficient information to enable an informed and rational decision to be taken. Second, that the consultation which it is accepted took place prior to the decision, was defective to such an extent as to vitiate the decision itself.

[22]Before turning to those two grounds of challenge, it is necessary to do two things: first, to set out the legislative framework and then to set out the factual background. So far as the legislative framework is concerned, that was agreed between counsel in the following terms which appear in Miss Markus' skeleton argument. It was common ground that the Defendant social services authority is legally obliged to meet the assessed eligible needs of the Claimants. The statutory framework giving rise to this duty is set out below. Section 29 National Assistance Act ('NAA') provides:

'(1) A local authority may, with the approval of the Secretary of State, and to such extent as 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 eighteen or over] who are blind, deaf or dumb, or who suffer from mental disorder of any description and other persons aged eighteen or over who are substantially and permanently handicapped by illness, injury, or congenital deformity or such other disabilities as may be prescribed by the Minister.'

The Secretary of State has issued directions which are set out at Appendix 2 to LAC(93)10, directing the making of arrangements by social services authorities under section 29(1) for all persons who are ordinarily resident in their area for the following purposes:

'(a) to provide a social work service and such advice and support as may be needed for people in their own home or elsewhere; (b) to provide, whether at centres or elsewhere, facilities for social rehabilitation and adjustment to disability including assistance in overcoming limitations of mobility of communication; (c) to provide, whether at centres or elsewhere, facilities for occupational, social, cultural and recreational activities and, where appropriate, the making of payments to persons for work undertaken by them.'

Section 2 Chronically Sick and Disabled Persons Act 1970 (CSDPA) provides:

'2 (i) Where a local authority having functions under section 29 of the National Assistance Act 1948 are satisfied in the case of any person to whom that section applies who is ordinarily resident in their area that it is necessary in order to meet the needs of that person for that authority to make arrangements for all or any of the following matters, namely: ... (c) the provision for that person of lectures, games, outings or other recreational facilities outside his home or assistance to that person in taking advantage of educational facilities available to him; (d) the provision for that person of facilities for, or assistance in, travelling to and from his home for the purpose of participating in any services provided under arrangements made by the authority under the said section 29 or, with the approval of the authority, in any services provided otherwise than aforesaid which are similar to services which could be provided under such arrangements; ... (g) the provision of meals for that person whether in his home or elsewhere; then subject to the provisions of Section 7(1) of the Local Authority Social Services Act (which requires local authorities in the exercise of certain functions, including functions under the said section 29, to act under the general guidance of the Secretary of State) it shall be the duty of that authority to make those arrangements in exercise of their functions under the said section 29'

. The statutory duty to assess the needs of those who appear to be in need of community care services and to determine to provide services in accordance with those needs is set out in section 47 National Health Service and Community Care Act 1990. '(1) 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.' Community care services include services under section 29 NAA and section 2 CSDPA. By virtue of s.7 Local Authority and Social Services Act 1970 (LASSA) a local authority also has a duty, in the exercise of its social services functions under the above-mentioned provisions, to act under the general guidance of the Secretary of State. Relevant guidance under the NHS and Community Care Act includes LAC(2002)13, 'Fair Access to Care Services: Guidance on Eligibility Criteria for Adult Social Care' ('FACS'). FACS guidance requires social services authority to adopt criteria for eligibility for social services provision, in accordance with a framework provided in the guidance. The guidance provides that, once eligible needs are identified, councils should meet them." The Facts

[23]I should add in relation to C that, as indicated, his assessment prepared by the defendant stated that although he has one-to-one support funded by the NHS, at times he needs a second carer, and in relation to CT, although there was no assessment in relation to him before the court, it was apparent from a statement by his mother, KT, that he has similar levels of need which, it is submitted on behalf of the claimants, show that he needs to be moved on a regular basis requiring two-to-one care.

[24]Pershore is a specialist centre providing day care services for those with PMLD. It is located on the ground floor of a building which also houses another day centre for people with less severe needs and a short break respite centre. It is situated in the town of Pershore about 12 miles from Worcester: "Pershore opened in 1987 in response to a shortage at that time of provision for PMLD people. It has specialist staff. The staff have received specialist training, and have developed expertise in dealing with PMLD people. The centre has a range of specialist equipment. It has taken an innovative approach to developing services and stimulating service users. It enjoys considerable community support and the parents of the users have formed a support group called 'Friends of Pershore Care Centre' which, amongst other things, raises funds to provide resources at the Centre. The Claimants' parents are all actively involved in the 'Friends'".

[25]Prior to the proposal to review the services at Pershore, the defendant had been engaged in a programme of reform of the Learning Disability Services in Worcestershire, although the claimants do not agree with all aspects (and when in this judgment I refer to the claimants in this kind of context I refer, of course, to their parents). Although they do not agree with the defendant's approach to the modernisation programme, they accept through Miss Markus that the defendant was and is entitled to review and reform services as long as it does and lawfully.

[26]On 18 December 2006 the defendant's Cabinet authorised the defendant's Director of Adult and Community Services to develop the detail of three proposed options for the future of Pershore and to present a further report to Cabinet. The proposed options were: to continue to provide a day workshop; to reconfigure or expand the service there; to cease the use of the premises at Pershore for day services and relocate users to other services in Worcestershire.

[27]They had a paper from the Director of Adult and Community Services noting the broad options currently identified for the future of Pershore for people with a learning disability and authorising her to develop the detail of those options with a view to presenting a further report to Cabinet.

[28]Under the "The Need for Change", the following was stated:

"7. When the service was set up there were very few options for day services for people with more profound and multiple disabilities and the provision met a need in-county that enabled those families to continue their caring role using local and needs led services. 8. During the last decade there has been a growth of provision for this client group and some of the larger day services now provide day care to people with more profound disabilities. This means that those individuals are subject to a wider range of experiences, stimulation and social contact. 9. Whilst a case can be made to provide more localised and smaller services, such services do need to be cost effective. Pershore Days Service has a budget of £211,640 which equates to a cost of £52,910 per place per year. The average unit cost for all of the other Learning Disability day services is £11,267 pa. Where as other day services support people with a broad range of needs and even allowing for the fact that the Pershore service solely supports people with high and complex needs, this does not appear to represent best value. ... ... ... 13. The criteria against which the developed options will be assessed will include: · The views and needs of service users · The views and needs of families · The affordability of the various options · The extent to which each option is consistent with the principles of 'Valuing People', namely choice, inclusion, rights and independence. 14. In developing these options, we are keen to have significant consultation at an early stage with users, carers and staff in order that they can understand the situation and contribute in a meaningful way to the development of future options."

[29]As is apparent, one of the factors identified in favour of the case for a change was the fact that the cost per place at Pershore was more than four and nearly five times as much as the unit cost for all of the other learning disability day services. That is, of course, a factor that the defendant was perfectly entitled to have regard to as a factor pointing to change, if that could be achieved compatibly with all its duties, including in particular its duties to the users at Pershore.

[30]As is also apparent, the director flagged up an awareness of the importance of and a keenness on the part of the Council (or at any rate its officers) to have significant consultation at an early stage with users, carers and staff, so that they could contribute in a meaningful way to the development of future options.

[31]In a subsequent consultation paper, approved by the Cabinet on 28th September 2007, the "Rationale for Consulting" was set out in these terms:

"There is a clear rationale for consulting on the future options for the day services currently provided within Pershore and Worcester City. The rationale can be broken down as follows: 1. These day services need to be looked at in the light of the County Council's Modernisation of day services agenda. 2. There is a need to ensure maximum efficiency and use of available capacity within services. The current day services (Building capacity) are under occupied. 3. There is a need to ensure that services are provided in a consistent manner across the county. The current arrangements at Pershore are inconsistent with the services received by those elsewhere in the county. This specifically relates to the size of the service, the staffing rations and certain aspects of support for example, provision of a cooked meal during the day. In all centres across the county, other than Pershore, service users with complex needs are provided for within mainstream services and integrate fully with other service users with diverse needs. 4. There is a need to prioritise and confirm decisions to upgrade the facilities provided at either Perryfields day centre or Cherry Orchard day centre. 5. There are major financial pressures within the overall learning disability service, as a consequence all service need to demonstrate maximum efficiency and best use of available resources."

[32]On 15th May 2007 the claimants' solicitors wrote to the defendant to propose a consultation process in relation to the proposals. It included the suggestion that the defendant should provide an analysis of how the proposed changes would achieve savings and what the projected savings were and details of the defendant's specific proposals for meeting the assessed needs of the service users in the event of a decision to close Pershore. By letter dated 31 May 2007 the defendant's solicitor wrote back saying that the adult and community services accepted the suggestions and approach of consultation outlined in the letter dated 15th May which it was said would be incorporated into the consultation document as finalised.

[33]At a meeting on 24 May 2007 the Cabinet was presented with a report by the Director of Adult and Community Services setting out findings of what was described as an initial consultation process. The report provided some more detail of the substance of each of the three options and stated that the director's preferred option was the third. In paragraph 4 of the paper, attention was again drawn to the disparity in unit cost between Pershore and other learning disability day centres providers, and it was said that the differential in unit costs reflected the fact that the Pershore service only supported a small number of people with high and complex needs. In other day services support was provided to people with a broad range of needs including individuals with a need of a similar complexity to those in Pershore. It was reported that the consultation and planning process had been carried out, including a formal reassessment of the needs of each of the four service users, to include the views of their carers, staff providing the current service and any professionals involved in their support. Reference was made to two meetings held with representatives of the Friends of Pershore Service group to discuss the options under consideration, work being undertaken to answer specific questions and queries and provide any additional information. Three meetings were held with staff at the service. It was recorded that:

"7. The main findings and issues raised within the consultation process centred on the following areas: • The outcomes of the individual assessments did not identify any individual needs that could only be met within the service provided at Pershore. The needs were consistent with other service users who access other day services. • The level of the service provided at Pershore is at a level in excess of that required to meet their needs. • This is at variance with the experiences of other people with a learning disability of similar need accessing day service provision across the county. • Specific concerns were raised about the robustness of the financial information provided in the earlier Cabinet paper and thus concerns about the accuracy of any information used to develop a recommendation • Some carers felt that management had already made a decision in 2005 to run down the service to enable it to close. • Carers were concerned that the level of support and quality of the service provided at Pershore was reasonable and the levels elsewhere were not. ... 9. There are other service users with similar need to those who access Pershore in other day services. Their needs are being met and an appropriate day service provision including access to any specialist support (physiotherapy speech and language therapy) is provided. ... ... ... 13. There are two main factors that influence the ability to increase the usage of the current day service, the physical limitations of the building thus restricting the total overall numbers who can use that service and the number of service users eligible for a day service in the Pershore are. ... ... ... 17. The review assessments of each of the four individuals confirmed that their needs are consistent with others who access mainstream day services elsewhere in county. 18. It did not identify a requirement that their needs could only be met in Pershore Day Services. Of the four people who currently access Pershore, one person lives in Malvern, one person lives in Evesham and two remaining people live in Worcester City. There are existing day services in each of these three areas and the staff within those services have the skills and experiences of working with people with complex needs. ... ... 21. Even taking into account the views expressed during the initial consultation, the Director is minded to recommend that it is not appropriate to continue to provide a service as set out in option 1. Option 1 is inconsistent with the experience of other service users within Worcestershire whose needs are met entirely appropriately with staffing levels not in the same quantity as those at Pershore. The cost of providing this service appears disproportionate to that of all other day services and does not represent value for money. ... 23. Having regard to the consultation so far, the Director is minded to recommend that option 3 enables the reprovision of the service to the four people at Pershore. It also has the following benefits: • The service would be delivered in their local area and would be consistent with the experiences of other people with learning disability and similar needs within Worcestershire. • This will ensure equity of service provision for people with such needs. • It would also reduce the time spent by individuals travelling to the service. • It would also provide a much more cost-effective use of resources. • By re-providing the service a saving of £130,000 can be realised, (£100,000 staffing and £30,000 non staffing)."

[34]I draw attention to a number of aspects of that report. The opinion was expressed that the level of service provided at Pershore was at a level in excess of that required to meet the needs of the four users, that is to say the three claimants and CT. As far as that is concerned, I pause only to observe that it does not follow from that conclusion, assuming that it was a reasonable conclusion to reach, that the level of service which was to be provided at Cherry Orchard, the ultimate option recommended and decided upon, would be at a level sufficient to meet their needs. Those are two wholly separate questions, in my view.

[35]Second, it is apparent that it was a feature of the views of those who supported the closure of Pershore and the transfer of the users or three of them to the changed Cherry Orchard that they were of the view that other service users with similar needs to those who accessed Pershore were being met with an appropriate day service provision elsewhere in the county. As will become apparent, considerable weight was placed on that consideration when the ultimate decision was made. That is, in my view, highly material to the issue which I have to decide.

[36]The formulation of the proposition of the reason for closing Pershore in paragraph 21 carries within it, in my view, the seeds of an approach to the decision to close Pershore which lies at the heart of the claimants' challenge. The way it is put is that the director was minded to recommend that it was not appropriate to continue to provide a service, as set out in option 1, which was for Pershore to continue to provide a day service and remain largely unchanged, and that option 1 was inconsistent with the experience of other service users within Worcestershire whose needs are met entirely appropriately with staffing levels not in the same quantity as those at Pershore. It was apparent, and not I think in issue or challenged by Miss Markus, that the level of service provision at Pershore was higher than in other establishments. It may well be that it was higher than was necessary for the needs of the four users to be met. But it does not follow from that, without more, that those needs would be capable of being met at any other establishment without detailed analysis having been made comparing, on the one hand, the needs of the users who would go to that new establishment and, on the other, the staff who would be available to meet those needs. That lies at the heart of Miss Markus' challenge, because what she says on behalf of the claimants is that that essential equation of the specific calculation of the specific needs of the three users who would go to the Cherry Orchard on the one hand, and the specific staff availability that would be available at Cherry Orchard to meet those needs, was never conducted and that the decision was taken not on the basis of such an analysis but rather on the basis of general assurances on behalf of the director to the Cabinet that those three claimants' needs would be met and for that reason the decision was irrational and/or it was taken to the basis of inadequate insufficient information. That, in my view, is the issue that lies at the heart of this application.

[37]Returning to the chronology, the Cabinet approved the development of the formal consultation document, assessing the three options and including a business case for option 3, the closure of Pershore, that is to say option 3 out of the three options that were then live which were: 1. For Pershore to continue providing services and remain largely unchanged. 2. To explore any potential reconfiguration or expansion to increase its cost effectiveness. 3. To cease day service provision at Pershore and to reprovide the service to the individuals in alternative day services in Evesham, Worcester City and Malvern.

[38]In the final paragraph of the director's report, (Paragraph 23) he recommended option 3 which would enable the reprovision, as he put it, of the service to the four people at Pershore, and which he said had the following benefits:

"The service would be delivered in their local area and would be consistent with the experiences of other people with learning disability and similar needs within Worcestershire. They would ensure equity of service provision for people with such needs. It would also reduce the time spent by individuals travelling to the service and would provide a much more cost effective use of resources."

[39]On 28th September 2007, as I have indicated, the Cabinet approved a consultation document and agreed a period of consultation of up to three months to consider the future of Pershore and other day care centres included in the review. The director's report to Cabinet noted that the key feedback to date had been about the need to ensure that any service met the complex needs of the Pershore service users and that the consultation document sought to address such concerns.

[40]The three key features of the consultation document included a section setting out the drivers for change, including national policy and pressure on the social care budget, a section addressing the local context, which includes the rationale for consulting to which I have referred, and a review of the current services.

[41]The consultation paper then set out a SWOT analysis of each of the possible options, and the projected savings to be achieved by each. The options were: a) Option one:

'The do nothing option.'

This would mean that the three centres would continue to provide a day service and remain largely unchanged. b) Option two: to increase the number of service users at the Pershore and to close either Cherry Orchards or Perryfields. c) Option three: To close Pershore and either (a) Cherry Orchard or (b) Perryfields, and move existing users of those centres to whichever of Perryfields or Cherry Orchard remained open or to existing satellite centres. (b) was the preferred option. The document stated that £85,000 per annum would be saved by closing Pershore. One of the reasons for preferring option 3b (closure of Pershore and Perryfields) was that it offered maximum savings.

[42]Before the formal consultation with the families of the Pershore users took place, an informal meeting took place with some of the parents and IH on 6.11.07. Parents raised the question whether the service users' needs could be met at the new service. JB asserted that there would be little if any savings in caring for service users in the new service and presented his calculations supporting this. IH agreed that the figures appeared to be reasonably accurate but would need to be looked at in more detail. He stated that he would look at the figures against and, if necessary, convene a further meeting.

[43]The formal consultation meeting with the parents of the service users at Pershore took place on 9 November 2007. The following should be noted: a) JB provided Stephen Chandler with a record of the meeting of 6 November. b) The parents raised concerns about staffing resources for the proposed service. Concerns were raised as to whether PMLD service users' needs could be met without 1:1 staffing c) Stephen Chandler was asked for the cost of supporting a person with PMLD. Stephen Chandler replied that this varies depending on whether provision is made for 1:1 or 2:1 support, or for variable levels of support. d) Stephen Chandler agreed to provide costs of PMLD support in other centres and details of how an adequate standard of care is defined.

[44]It is apparent from these minutes that the principal concern of the parents was whether service users' needs would be adequately met under the new arrangements. They were concerned that the budget was based on a cost of meeting the needs of PMLD service users that was lower than that required and, in particular, which would not allow the necessary staff ratios. It is the claimants' case that the parents needed to know: a) what level of care for PMLD service users the Council considered to be adequate; and b) what the Council considered it should cost to care for a PMLD service user.

[45]Knowing the information at(a) would enable the parents to understand and comment on whether the level of care that the Council considered to be adequate was sufficient in the case of the particular service users. Knowing the information at

(b) would enable the parents to understand and comment on whether the projected savings were consistent with the projected costs of caring for the service users. Without any further information, the parents could not make any representations regarding meeting the service users' needs beyond raising their concerns as to whether the service users' needs would be met. It was impossible for them to know on what basis the Council asserted that their needs would be met or to comment upon any aspect of that assertion or the underlying assumptions.

[46]It was agreed that a further consultation meeting would take place on 4 December.

[47]A meeting took place on 16 November to explore a proposal, raised by the Friends of the Pershore Day Care Centre, that Pershore be taken over and run by a charity or limited company.

[48]On 3 December 2007 JH wrote to Stephen Chandler to tell him that the Friends were cancelling the meeting on 4 December as the Defendant had not provided them with information in advance so as to permit them to engage in meaningful consultation.

[49]It is the claimants' case that at that time the Friends had been provided with no information since the meeting of 9th November. There was therefore nothing further that could be discussed at that time.

[50]On 4 December Stephen Chandler replied stating that he would arrange a further meeting. JH replied by letter of 5 December setting out the information that was awaited, including the cost of caring for PMLD users at other centres.

[51]During late December Stephen Chandler contacted JH and invited the Friends to a meeting at Cherry Orchard on 3 January 2008. On 30 December JH replied that they would not be attending because of lack of information and because of inadequate notice. On 31 December Stephen Chandler sent an email to JH and proposed a meeting during the following week. By email of 3 January JH wrote to Stephen Chandler that they still lacked necessary information and repeated requests for specific information.

[52]On 6 January Stephen Chandler wrote to JH providing some of the information requested. He provided a document that indicated the costs of support for PMLD service users at Perryfields and stated that he was concluding the consultation process.

[53]The Cabinet met to consider the issue of 8 February 2008. The Cabinet had before it: the Director's report to Cabinet recommending that Pershore and Perryfields be closed; written representation by the Friends of Pershore; the Business Case presented by Stephen Chandler. I should interpose here to say there was a meeting of the Cabinet on 28 September 2007, the minutes of which record that in the course of discussion one of the principal points made was that:

"payments by clients should also be taken into account, as should their particular need and the ability of any alternative provision proposed to meet that need. The Council should be aware of making true comparisons and be wary of average figures when considering this particular service and users of it."

[54]In my view that is an important reference, emphasising, as it does, the critical importance to any decision to which the Cabinet on behalf of the Council had to come of focussing very specifically on the very extreme needs of the users of Pershore and the ability of any alternative provision to meet those needs. In particular, and in addition attention was focussed on the need for the Council to make true comparisons and to be wary, as it was put, of using average figures when considering this particular service and the users of it. In my judgment, that is an important reference and it goes to the heart of the dispute between the parties on this application.

[55]The paper before the Cabinet meeting on 8 February 2008 by the Director of Adult and Community Services noted the findings of the consultation process in respect of Pershore and approved the business case developed on the basis of option 3b in the consultation paper and authorised the closure of Pershore and Perryfields.

[56]In paragraph 3 of the report, the director said that the learning disability service had identified that the occupancy of the three day centres at Pershore, Cherry Orchard and Perryfields had reduced with significant under-occupancy in each. In the case of the service delivered at Pershore, it only supported people with profound learning disabilities. That service is inconsistent it was said with the way the day service is delivered to other individuals with profound learning disabilities in Worcestershire. All other learning disability day services offer an integrated service whereby those with varying levels of disability are supported in the same environment.

[57]Both within the report and in the minutes of discussion at the Cabinet held on 8th February 2008, Miss Markus submits that assurances were given to the Cabinet by Council officials in effect that under the option being recommended, namely the closure of Pershore and the transfer of the four users in relation to one to Evesham, and in relation to the other three to Cherry Orchard, their needs had been assessed and that those needs would be met at Cherry Orchard, under the new regime. The first of those references on which Miss Markus relies was in paragraph 6 of the Director's report which was in these terms:

"In line with the Council's duty to ensure disability equality, the service users at Pershore will be given the opportunity to enjoy a much improved service where their needs will be better met within a fully integrated service at either Cherry Orchard or Evesham Day Centres, enabling them to actively participate in wider community life, to mix with their peers of differing abilities, develop a range of friendships and generally be more included within the overall service than is currently the case at Pershore which serves to segregate them as a distinct group leading to exclusion."

The second was at paragraph 25 which was in these terms:

"The three remaining service users currently using the Pershore service will all be reprovided with a service of the new reconfigured service at Cherry Orchard. The proposed new service to be offered at Cherry Orchard is considered to better meet their assessed needs and provide for a service where they will benefit from integration with other service users of varying abilities than is the case at Pershore. In addition reduce their overall travelling time each day."

That is to be contrasted, Miss Markus submits, with what was said in the immediately preceding paragraph 24, in respect of the proposal for H to be moved to Evesham:

"Of the four service users at Pershore Day Centre, two currently within Worcester City, one lives outside Pershore and one lives in Malvern. It is proposed that the service user from Pershore has his service provided at Evesham Day Centre, this service has been assessed independently to meet his assessed needs provided in an additional staff member is added to the staffing compliment at Evesham. Provision in the business case has been made for this. It is considered this will meet his assessed needs and also enable greater integration with the broader service user group than is currently the case at Pershore."

[58]Miss Markus submits that that conclusion was made based on discussions with Evesham and condescended to a level of particularity in terms of seeking to balance the needs, on the one hand, and the level of staff availability on the other that was absent in fact in relation to the other three and Cherry Orchard, albeit that was not a matter drawn to the attention of the Council.

[59]The other references to assurances said to have been given relied on by Miss Markus are in the minutes of the discussion at the Cabinet meeting. They are in these terms:

"In taking decisions the Council had to have due regard to the duty to avoid and eliminate disability discrimination pursuant to Section 49A of the Disability Discrimination Act 1995. In line with the Council's duty to ensure disability equality, it was proposed that the service users at Pershore would be given the opportunity to enjoy a much improved service where their needs would be better met within a fully integrated service at either Cherry Orchard or Evesham Day Centres, enabling them to actively participate in wider community life. Thus, the recommendation proposed not only continued to prevent disability discrimination for the relevant individuals, but actually improved their access to services."

The next reference was in these terms:

"The reprovisioning of suitable services for the four service users of Pershore Day Centre could be achieved by one (who was living outside Pershore) attending Evesham Day Centre and the other three (two living in Worcester City and one in Malvern) at the new re-configured service at Cherry Orchard. It was considered that the arrangement would meet their assessed needs and also provide the benefits set out in the report."

The next reference is in these terms:

"• a summary of the analysis of the four options before the Cabinet and the associated business case was provided. The Director drew members' attention to the financial section of the Business Case which showed additional staffing costs had been factored into Option 3. • the financial information had been thoroughly checked and the Director was confident that it was accurately presented. • there would be suitable places and care support available to meet the needs of the Pershore service users at Evesham and Cherry Orchard."

Finally:

"The Director of Adult and Community Services responded to some of the issues raised during the discussion:- ... • there were over 50 people with similar needs throughout the county who all received good care at other centres. • mixing in activities with people that had a range of needs and abilities did not mean that some individuals would be just left sat in a corner. That was not acceptable to him and would not happen. He felt that people with learning disabilities should be given the opportunity to mix with a range of people with differing needs and abilities. • he did not accept that the provision of the specialist service proposed by the Friends of Pershore was the right approach. • in response to a question from the Chairman of the Cabinet, the director confirmed that the assessed needs of service users would be met if Option 3b were chosen. The needs of the individuals affected had been reassessed. As a result it was felt that their needs could be provided for at another centre in the county."

[60]Miss Markus submits that those are all assurances to the effect that the assessed or reassessed needs of the claimants would be sufficiently met at Cherry Orchard but that those assurances were not the result of or supported by the kind of detailed analysis which would involve identifying specifically the number of staff and in particular care staff who would be available at Cherry Orchard, on the one hand, and the ability of those staff to meet the proper needs of the users on the other. That, of course, is not as simple or straightforward as a direct matching of those two, because it was implicit in option 3b that three of the four claimants would move to Cherry Orchard, that Cherry Orchard would itself involve an amalgamation of Perryfields which would be closed and Cherry Orchard, that there would be a reduction in the number of staff currently at Perryfields and Cherry Orchard, in particular care staff, but that further complicating the equation, there would be some users, albeit probably not the most severely disabled, who were currently at Cherry Orchard and/or Perryfields who would move to some of the satellite centres. That being so, submitted Miss Markus, nothing short of a detailed analysis of the kind to which I have referred would enable a proper and reasonable decision safely to be arrived at that the effect of closing Pershore and transferring three of the four users to the reconstituted Cherry Orchard would meet their needs.

[61]The paper from the Friends which was available to the Cabinet questioned the savings which were identified by the Council officials and put to the Cabinet as flowing from option 3b, and asserted that no proper consideration had been given to whether the complex needs of service users at Pershore could be met appropriately and safely in another centre. At the meeting the claimants' solicitor repeated those representations, stating that it did not appear that account had been taken of the additional staff that would be required at the new facility, that there was no budget at the new facility to provide for staff over and above the existing Cherry Orchard and Perryfields staff and indeed pointing out that it appeared that there was to be a reduction in the combined staff even though three new PMLD service users would be moving to that facility.

[62]There was, as I have indicated, before the Cabinet a business case, and one of the things that it did was to identify the savings that would occur in the event of option 3b, that is to say closing Pershore and Perryfields and moving the users to Cherry Orchard, save in relation to H and others at Pershore and Cherry Orchard who might move to the satellites. There was in the hearing before me a considerable amount of argument, and indeed some additional late evidence on the question of the figures in relation to the costs savings. In particular, Miss Markus relied on what was ultimately admitted by the defendant to be an error in a witness statement of Mr Chandler in relation to the way in which the figures of savings had been calculated, both in relation to financial figures and in relation to staff members. As I have indicated, one of the challenges that Miss Markus makes on behalf the claimants to the decision is that there were, as she put it, two major and linked concerns raised and placed before the Cabinet which were(a) whether the needs of the Pershore service users' would be met with the proposed new service at Cherry Orchard; and

(b) whether the closure at Pershore would achieve the savings projected. She submitted the two issues were inextricably linked because although the Friends were not in a position to challenge the details of the defendant's calculations as to the financial savings, the projected savings presupposed staffing reductions. If, she submitted, the PMLD users' needs could not be met if those staffing reductions were made, then it would not have been open to the defendant to approve the reduction in staffing as proposed and it would follow the projected savings would not be achieved. It is, in my view, apparent from that way of putting it that the second point -- if I can put it this way without in anyway intending to be pejorative, because there is nothing illegitimate about it -- was really a tactical objection rather than a fundamental objection. The fundamental concern of the claimants' parents, perfectly legitimately, was that they wanted to avoid a situation in which they believed insufficient analysis had been done as to whether the claimants' needs would be met at Cherry Orchard. That was their objective in their representations and that is their objective in this application. The fact that if there were defects in the analysis of the projected savings that meant or might have meant a different decision might have been come to or in some way vitiated the decision is not something that is an end in itself, in my view, for the claimants' parents but rather a means to end, the end being a reconsideration by the Council of the decision to close Pershore.

[63]At all events, at the end of the hearing, evidence and submissions, I did not apprehend that there remained outstanding differences as to the figures, at any rate to a level which would, in my view, justify a decision in itself to quash the decision of 8 February 2008. The ultimate position, as I understood it to be, was as set out in a supplemental witness statement by Miss Alexander dated 10 February 2009. Miss Alexander is head of finance and business support within the financial services directorate of the defendant. The figures put to the Cabinet included, she said, Pershore staff savings of £77,000, but of that £25,000 was deducted to be redirected to the new service as explained in an explanatory note to a spreadsheet at page 318 of the bundle before the court, leading to staff savings at Pershore of £53,000 as shown in appendix 4 of the consultation document at page 183 of the bundle. Subsequently, she said, when the final business case was prepared and presented to Cabinet the extra costs in respect of Evesham to support H, were separately included into the business case in the financial section. These costs, separately itemised were shown as £22,000 made up of £18,000 staffing and £4,000 transport. The Director of Adult and Community Services brought these additional staffing costs for option 3 to the attention of the Cabinet as is evidenced in the minutes of the meeting of page 252 of the bundle. Thus, she said, the business case on which the Cabinet made its decision clearly demonstrated that the £24,000 was directed to support alternative day centres plus an additional staffing and transport costs in respect of Evesham of £22,000.

[64]In relation to staff numbers, there appeared at appendix 2 to the business case at page 181 of the bundle figures which demonstrated that in relation to Perryfields and Cherry Orchard there would be a reduction of 3.96 day care officers and 0.01 senior day care officers, making a total of 3.97 or roughly speaking, 4. Offset against that would need to be taken into account the proposal that some £24,000 from the Pershore budget would be transferred and allocated to Cherry Orchard representing one and a third member of staff, leaving, in all, a reduction in relation to Perryfields and Cherry Orchard of something like just over two-and-a-half members of staff.

[65]Against that, however, two further factors had to be taken into account: first, that there would be the three users coming from Pershore, who would, of course, require attention and the meeting of whose needs would thus need to be taken into account; and second, the evidence that it was contemplated that some users might be transferred from Cherry Orchard and/or Perryfields to what were described as the satellite centres, albeit that it was not anticipated that they would be the most heavily disabled and therefore that was a matter that would need to be taken into account when assessing the adequacy of the new net staff availability as against the ability of those staff to meet, among others, the needs of the three claimants.

[66]The Cabinet approved the recommendation of the director on 8 February 2008 and they approved the business case developed on the basis of option 3b and the consultation paper and approved the closure of Pershore and Perryfields centres.

[67]As a result of concerns expressed that decision was "called in" and considered by the Overview and Scrutiny Steering Committee of the defendant on 9 April 2008. Prior to the meeting, the members of that Committee had visited Pershore, Perryfields, Cherry Orchard and the Halcyon Centre in Redditch. The Friends were present and had the opportunity of making representations of which they availed themselves and raised the issue of staffing levels.

[68]The minutes record that the Chairman explained that the members of the Committee had visited a number of the learning disability centres and at the Halcyon Centre had seen firsthand how it was possible to integrate those with PMLD and MLD while meeting individual needs and at the same time offering a wider variety of activities to all clients. The members had also spoken to parents and carers of individuals who have previously been in similar situations to those at clients at Pershore and had seen improvements beyond expectation in relation to social skills and friendship circles.

[69]Among the points recorded in the minutes were the following:

"During the response made by the Director, the following main points were made. Services could be provided for every client with PMLD in every locality in an integrated service. The authority currently supported 50 clients with PMLD in the county. Clients with mixed abilities could integrate well and receive stimulation from each other. The financial information had been checked by two finance officers and the director was confident of its accuracy. ... Prior to any formal proposals individuals would be reassessed. The process for assessment now was different to that of 5 years ago. It would not prescribe the number of staff required to look after a client. That would depend on the activity they were involved in."

[70]That latter point is puzzling. Reassessments had been carried out by the defendant, to which I have referred, but this appeared to contemplate further individual reassessments as it was described "prior to any formal proposals", and yet the decision which had already been taken on 8 February 2008 and which was confirmed by the OCSC on this occasion was a decision for the closure of Pershore and with the inevitable consequence and on the explicit basis that the users of Pershore (the three claimants) would go to Cherry Orchard apart from H who would go to Evesham.

[71]The Committee upheld the Cabinet decision of 8 February 2008 and on 14 April 2008 the Chairman of the OSSC wrote to the leader of the defendant Council to inform him that the Cabinet's decision of 8 February 2008 had been upheld, but drawing specific attention to the fact that during the meeting the members had been given a number of assurances about the implementation of the decision which he would like to bring to his attention including:

"Although assessments of care needs no longer specify members of staff as these may vary dependent on the activity the user is undertaking, appropriate staffing ratio will continue to be provided as necessary."

[72]Further light on the basis upon which the decision was both taken and recommended is to be found in a witness statement served by Mr Chandler. Mr Chandler said in paragraph 17 of his first witness statement dated 23 December 2008 that the Cabinet in making its decision on 8 February had available to it all the information gathered during the consultation process, as well as the business case development including access to all the information provided both by him, the Friends of Pershore and their legal advocates. In paragraph 18 he said this:

"The Director of Adult and Community Services also summarised the position emphasising that there are over 50 other people within the county with a profound and multiple needs utilising other day centres around the county, which already had the benefit of mixing with service users with different levels of ability and need. Following specific questioning form the Leader of the Council, the Director also made very specific reference to the complex needs of the service users at Pershore, which he assured Cabinet could be met at Evesham and Cherry Orchard recognising that Cherry Orchard would require a capital investment of £100,000 to create a personal care suite, and the moving of a 'snoozelum.'"

Again, Miss Markus relies on that as further evidence of assurances having been given to the Cabinet at their meeting of 8 February by the director that the complex needs of the service users at Pershore could be met at Evesham and Cherry Orchard:

"The Learning Disability Service has successfully modernised day services in the north of Worcestershire (Kidderminster and Redditch areas) providing a modern model of service that enhances community integration yet still provides a building base for individuals to work from. These models have successfully integrated people with complex needs, such as those at Pershore, with other less disabled individuals and there has been positive feedback from users and carers of the added value that this model of service brings. As with all changes, there have been anxieties expressed from carers, staff and at times, service users. Concerns regarding risk and vulnerability have all been successfully managed in these services and Adult and Community Services remains confident that it can provide an enhanced level of service at the proposed Cherry Orchard Day Centre. ... 21. During the consultation process the parents of [MH] accompanied by their local elected member (Liz Tucker) visited Evesham Day Centre and viewed the proposed centre that their son would move to. They spoke to the manager of the centre (Tony Mann) who also manages Pershore Day Centre asking him if he felt confident that the staff at Evesham could safely and appropriately provide Mathew with a service. Tony Mann confirmed that he was confident that the service could provide a similar level of service to Mathew providing an additional member of staff was added to the service and some minor building work linked to installing a tracking system for a hoist was installed. The cost of an additional member of staff and building work was included with the business case."

That is a further reference relied on by Miss Markus indicating a disparity of approach as between the steps taken to assure the defendant that the needs of H would be met at Evesham, on the one hand, and the lack of comparable steps taken to satisfy the defendant that the needs of the other three who were to go to Cherry Orchard would be met. In paragraph 23 Mr Chandler said this:

"The service at Perryfields currently supports four service users with similar needs to those at Pershore. The staff within the centre are skilled in supporting the needs of people with profound and multiple disability. The adult care assessments carried out on the four people at Pershore clearly define the levels of support that each individual needs throughout the various activities during the day. These needs and levels of support are consistent with the experiences throughout the range of day centres in Worcestershire. 24. I am confident that upon confirmation of the finalised timetable of activities for each person (this will be finalised during transition period and will build upon the current plans each person has at Pershore and will provide additional opportunity for individuals to avail themselves of new activities not available at Pershore) that appropriate staffing levels and skills to meet the Claimants' eligible needs will be in place. 25. As part of the Overview and Scrutiny call in process following Cabinet's decision Members of the Committee met with users, carers and staff of a newly modernised service at the Halcyon Centre in Redditch. The new facility at Cherry Orchard will be modelled on the Halcyon Centre. The Committee learnt from staff at Halcyon how services had developed from the model currently in use at Pershore and formerly used at the old day centre in Redditch and were unanimous in their agreement that the initial anxieties people had did not materialise, the quality and variety of experiences of service users was much better and there were sufficient resources to meet individual needs."

[73]As to paragraph 23, Miss Markus submitted that the assessments previously prepared of the claimants by the defendant do not in fact sufficiently define the level of support that each individual needs throughout the various activities during the day in this sense. What she said was necessary but was not available information to be gleaned from those assessments was an analysis of precisely, within the period that each of the three was to be at Cherry Orchard, how much of the day would be spent with the need for one-to-one staff ratio, two-to-one staff ratio or smaller or greater staff ratios. Miss Markus accepted that it was perfectly legitimate and open to the defendant to reach the conclusion that there was an overavailability of staff at Pershore, in the sense that there were more staff available than necessary to meet the needs of the three claimants who were going to go to Cherry Orchard. She also accepted that it would be open to the defendant, on analysis, to reach the conclusion that their needs could be met with fewer staff. It was also open to the defendant to conclude that they did not need one-to-one or two-to-one attention every minute, every second of every minute of every hour that they would be at a day care centre. But it did not follow from that, so Miss Markus submitted, that it was possible on the basis of the assessments that had been made, to identify the total number of staff that would be needed at Cherry Orchard to meet their needs. It did not follow from the fact that that more staff were available to meet their needs at Pershore that the defendant had yet put itself in a position to make a sufficiently informed analysis of whether sufficient staff would be available at the reconstituted Cherry Orchard to meet those needs.

[74]As to paragraph 24, Miss Markus submitted that in a sense is an open acknowledgement of the fact that what she submitted was the necessary calculation and analysis had not yet been conducted. It was simply a statement of confidence that appropriate staffing levels and skills to meet the claimant's eligible needs would be in place, it being implicit that no sufficient information was yet to hand which would enable the defendant at that time, that is to say February 2008, to be able to identify how and in what regard those needs would be met, not least having regard to the suggestion that the needs themselves had not yet been finally assessed for the purpose of making that judgment.

[75]In relation to paragraph 25, Miss Markus submitted that that echoes the reference in the minutes of the OSSC, to a general approach having been adopted in which the Committee was influenced by the experience at the Halcyon Centre, which was an experience that apparently impressed the Committee, and indeed the officers, as demonstrating that in that case it had been possible to meet the needs of equivalent users or users with equivalent disability with smaller quantities of staff and staff ratios that were available at Pershore.

[76]In my view, there is much force in Miss Markus' submissions. It may very well be that the successful experience that the Council has had, at Halcyon, is such that it will be possible to reproduce at a reconstituted Cherry Orchard, conditions with lower levels of staff than are currently at Pershore which will still be sufficient to meet the needs of the three claimants who are proposed to go there. But it is not suggested by Mr Chandler in his witness statement, nor is it apparent from the minutes of either the Cabinet or OSSC meetings, nor in any of the reports drawn to my attention, that the decision to close Pershore and transfer three of the users to Cherry Orchard was taken on the basis of any detailed analysis of the staff/user ratio at Halcyon or any comparison between that staff/user ratio and a projected staff/user ratio at the reconstituted Cherry Orchard. On the contrary, it appears to be quite clear, and I do not think the contrary was suggested, that a much broader brush approach was applied by the officers in making the recommendation to the Committee.

[77]The question therefore that arises is whether or not that approach was a lawful approach. Miss Richards, who made very persuasive oral and written submissions, reminded me that the threshold for a rationality challenge is a high one and that this is an area in which it is to the highest degree important that the court should remind itself that it is not its function, on an application and a challenge such as this, to substitute its own view for the view of the relevant decision maker. That is a well-known proposition, but one that, in my view, she is right to remind me to bear well in mind in approaching the decision to be made in this particular case. If authority is needed for the proposition, and I do not really think that it is, I was nonetheless supplied with it by Miss Richards in the form of the decision of Beatson J in R (Centro) v Secretary of State for Transport

[2007] EWHC 2729

Admin (paragraph 36):

"If this ground of the challenge is analysed as based on irrationality the claimant has to overcome a high threshold. This is because the issues for decision concerned the application of complex economic concepts in particular the elasticities applied to price increases to be used as part of the calculation of the reimbursement rate paid to transport operators providing travel concessions. It is clear that, when considering decisions of this nature in the context of judicial review, the court is particularly cautious and reluctant to intervene: see R v Secretary of State for the Environment, ex p Hammersmith and Fulham LBC [1991] 1 AC 521 and Nottinghamshire CC v Secretary of State for the Environment [1986] AC 240 where the extent of the judicial deference exhibited has been attributed by Lord Philips MR in R (Asif Javed) v Secretary of State for the Home Department [2002] QB 129 at 48-49 to the subject matter there, national economic policy. Similar reluctance is seen in the context of the review of the decisions of economic regulators. Thus, in R (London and Continental Stations and Property Ltd) v The Rail Regulator [2003] EWHC 2607 (Admin) Moses J, as he then was, stated (at [32]) that 'it must be born in mind that the regulator was concerned with issues of economic policy and of economic theory and practice'. In that case the regulator was concerned with determining a method of compensating the operator for its loss of business in the future. Moses J stated that there was no way in which such damage could be measured with any exact precision, even after the event. One of the contentions in that case was the resolution by the regulator of rival arguments as to the appropriate method of calculating elasticities in relation to increased walking time in dispersed facilities see [101-105]. Moses J stated that in considering the various challenges to the regulators directions, the court must 'bear in mind that he was reaching his conclusions in a field in which he was both expert and experienced. He was advised by experts.' Moses J stated (at [34]) that these factors demonstrate that the constraining role of the courts is modest. See also Sullivan J in GNE Railway v Office of Rail Regulation [2000] EWHC 1942 (Admin) at [39] and [44]."

She also submitted, rightly in my view, that those observations are not confined to the context of economic policy or decisions based on economic factors and she cited:R v Hillingdon LBC ex p Pulhofer

[1986] AC 484

, 518D-E,(homelessness),Lambeth LBC v Ireneschild

[2007] EWCA Civ 234

at § 44 (community care) andR(Bishop) v Bromley LBC

[2006] EWCA 2148

(Admin) at § 24 (closure of day centre).

[78]So, submitted Miss Richards, the claimants must show that the decision made by the Council was one which no reasonable decision maker could on the material before it make. There was, she submitted, no basis for concluding that that high threshold was on the facts of the present case reached. The reasons advanced for the Council's decision were plainly rational and she relied in particular on the analysis in the business case and the decision was well within the lawful exercise of discretion by a local social services authority.

[79]In relation to particular criticisms made by the claimants, so far as H is concerned, she submitted that it was envisaged he would attend Evesham, of which Pershore is a satellite service, that Mr Mann, as referred to in Mr Chandler's witness statement considered that H's needs could be met at Evesham if an additional member of staff would be made available and the cost of an additional member of staff was included in the business plan. It seems to me that there is force in that submission.

[80]She submitted, in relation to the third claimant, C, that, as was accepted, he had a dedicated support worker providing one-to-one support funded by Worcestershire Primary Care Trust and that the Council's decision would not alter that arrangement as the worker would continue to be funded by the Primary Care Trust and would follow him into the new service providing consistency, familiarity and confidence in the delivery of his care package. There is, it seems to me, force in that submission but also force in the submission of Miss Markus that there is evidence that C as well on occasion requires more than one-to-one staff ratio and therefore that is a matter that has to be taken into account in coming to a conclusion as to whether Cherry Orchard would meet his needs.

[81]Miss Richards submitted that although the closure of Perryfields and the establishment of a combined service at Cherry Orchard would result in some loss of support staff posts, that does not equate to an equivalent reduction of staffing ratios at Cherry Orchard as it always had been and was intended that a number of existing users at Cherry Orchard would transfer to the various satellite centres at which there is some under capacity. That is a matter to which I shall return. She submitted that there has been an element of staffing surplus at Pershore having regard to the small number of service users there and that additionally food is prepared at Pershore by one of the day care staff, thus removing that staff member from the provision of direct one-to-one support during the food preparation whereas there would be staff specifically involved in food preparation at Cherry Orchard.

[82]That may well be so, but it does not seem to me to provide an answer in itself to the challenge, because it is not an argument that is used as part of a wider, more specific analysis of the staffing ratio at Cherry Orchard and its ability, as reconstituted, to meet the needs of these three claimants. In so far as it condescends to detail rather than the general approach which, in my view, is the basis upon which the decision was taken, it falls far short of demonstrating that the staff that will ultimately be available at Cherry Orchard will be sufficient, having regard to all the other calls on their time with the other users, to meet the needs of these claimants.

[83]She submits that many of the service users at the reconfigured Cherry Orchard will not require one-to-one care. Some, including the claimants, will need one-to-one for some activities and tasks and two-to-one support sometimes during the day and then she submitted there will be sufficient staff in place to enable that support to be available. In my judgment, that is a submission which is just that: it is a submission. But it is not based on the kind of detailed analysis or evidence which, in my judgment, would be necessary to support a reasoned and rational decision that closing Pershore and moving the three claimants who it is proposed to go to Cherry Orchard will meet their needs.

[84]In the same category is her submission that there will be some activity when the service users, including the first and third claimants, do not require one-to-one support such as music and drama. She submits that the precise arrangements cannot be finalised at this stage or the stage of the Council's decision but the Council, which has successfully reconfigured day services along these very lines, including services provided to persons with profound and multiple learning disabilities and similar needs to the claimants in the north and east of the county, was entitled rationally to conclude that these factors would combine to achieve overall cost savings as estimated whilst enabling the needs of the claimants to be met.

[85]It seems to me that in that submission Miss Richards draws attention to a disparity between the basis upon which the matter was put to the Cabinet and the OSSC and the basis upon which in reality the recommendation had been formulated. This is not a case in which a decision was taken to close Pershore without any recognition that that decision, of itself, of necessity involved, in effect, a decision that the users would go to the reconstituted Cherry Orchard. Therefore this is not, in my view, a case, of which there are many in the authorities, in which it has been held that it is premature, in challenging a decision to close an institution, to do so on the basis that there has not yet been an assessment of the needs of the residents or users of that institution. That is because it often happens that there is a multi-staged decision-making process and that it is not possible at the first stage of the process or of closure to identify where the people will go, what their needs will be and whether those places will satisfy their needs. In my view this is not such a case. This is rather an exceptional case, where the two stages are in effect linked. The decision to close and the decision to move the users to Cherry Orchard, in my view both explicitly and implicitly were linked both by the officials and by the Council with each other, that is to say the decision to move and the decision to close, and it seems to me that the matter can be tested this way: if it had been said to the Cabinet or the OSSC in answer to a question or otherwise:

"We do not know whether we will be able to meet the needs of the users at Cherry Orchard, but can we please close Pershore now?"

The answer could only have been "No, of course not" Because that is not the basis upon which the closure of Pershore was put. It was an integral part of an overall package which was designed to review and reform the provision as between Pershore, Perryfields and Cherry Orchard as well as the satellites.

[86]In my judgment, therefore, the decision was taken on the basis that closure of Pershore would lead to the three claimants moving to Cherry Orchard and the fourth user to Evesham, and on that basis the decision was made that the Council were satisfied that Cherry Orchard would meet their needs.

[87]Miss Richards relied in this context on the decision of Lightman J in the case of R (On the application of Phillips (by her daughter and litigation friend) and Rowe (by her sister and litigation friend) v Walsall MBC

[2001] EWHC Admin 789

. That was a case in which the applicants were two of three remaining elderly residents at a residential care home provided by the respondent Council. Following a consultation process the Social Services Committee resolved to close the home due to low occupancy and problems in upgrading. All residents were transferred elsewhere save for the remaining three. They contended they were assured the care home would be a home for life and brought judicial review proceedings to prevent the Council transferring them elsewhere. Lightman J said this:

"The second ground of challenge is that there was a breach of duty by the Council in failing to make psychological and risk assessments in respect of the effect on the applicants of the transfer to new homes. In my judgment the evidence before me establishes that there is no need for any such assessments. The general principle is that such assessments may be necessary or appropriate when making the placement of a resident elsewhere and deciding what home would be suitable for the resident, but are not necessary or appropriate when making a decision on closure: see Ex parte Coughlan [2000] 2 WLR 622. Special circumstances may exist which do require an assessment before a decision is made on closure. An example is to be found in the case of Ex parte Perry [2000] 3 CCLR 378 where the evidence established that the psychological effect of uprooting a profoundly disabled group of people from their homes where they had lived for 20-30 years and the consequent loss of the continuing care of a consultant were matters of importance. (It is clear to me that R v. LB of Camden Ex parte Bodimeade was decided on the ground that there was in that case a clear promise of a home for life, and not on the ground that there was the need in all cases for an assessment, a ground which would be run counter to Coughlan). The situation here is quite different. Mr Nagra in his witness statement makes clear that the needs of both applicants will be met equally well in other residential homes. So far as the Council had a duty to ensure that it possessed the relevant information to make a decision on closure and this included the impact on the applicants, I am satisfied that the Council possessed it, and I am not satisfied that there is any reason (let alone evidence) to suggest that it did not possess it."

[88]It is apparent that Lightman J there reached the conclusion that on the evidence there was no need for assessments. In that case, he found that the needs of both applicants would be equally well met in other residential homes and so far as the Council had a duty to ensure that it possessed the relevant information to make a decision on closure, including the impact on the applicants, he was satisfied that the Council possessed it. In my view, that is not an authority that assists Miss Richards on the facts of this case. Lightman J was not, in my view, there holding that there is a general principle or rule that it is never necessary or appropriate when making a decision on closure to be satisfied, in so far as it is reasonably possible to be satisfied, that the persons who will be moved will have their needs met at the institution to which they will be going. Everything, in my view, must depend upon the facts of the particular case.

[89]Reference was made by Lightman J to the well known case of R v North and East Devon Health Authority ex parte Coughlan

[2000] 2 WLR 622

. In that case Lord Woolf MR said:

"98. The health authority appeals on the ground that the judge was wrong to hold that it was required to carry out a multi-disciplinary assessment before consulting on and arriving at its closure decision. Under the 1995 guidance what was required was such an assessment of the patient's needs before any decision was made about the discharge of the patient from N.H.S. care or on how their continuing care needs might best be met. The closure decision was not, as Miss Coughlan contended, a collective decision to discharge the individual patients. Under the 1998 guidance there were four distinct stages in the transfer process, the first of which was the closure decision and it was only after that that the detailed transfer procedures operated. It was submitted that it would be impracticable and unrealistic in the vast majority of cases to carry out the assessments and to identify alternative placements prior to a closure decision, let alone prior to consultation on a proposed closure. Funds for the development of alternative facilities might only become available after the closure decision is taken; only then would the range of alternative available placements become clear; large closure programmes might take years to implement, in which case assessments and alternative facilities considered at the time of consultation or closure would change over time; and in practice the necessary co-operation of individual patients for effective assessments and alternative placements might be more difficult to obtain before rather than after a final decision has been taken on closure. Mr. Goudie submitted that these issues are of great practical importance for health and social services authorities throughout the country. 99. The health authority contended that, in any event, the judge was wrong in holding that multi-disciplinary assessment of Miss Coughlan's needs had not been undertaken in accordance with the 1995 guidance. Prior even to consultation on the closure there had been three clinical assessments of Miss Coughlan as well as a social services assessment. 100. To the extent that the required assessments had not been carried out in accordance with the guidance, the health authority submitted that the judge had failed to address the question whether this was the result of Miss Coughlan's unwillingness to co-operate in the assessment with the health authority and the social services in the manner and to the extent contemplated by the guidance. This was disputed by Miss Coughlan, who contended that she co-operated with the assessments that were made and that she would have fully co-operated with any multi-disciplinary assessment had it been offered. It was also pointed out that this criticism has not been made of the other two residents. 101. The health authority also contended that the judge was wrong to hold that it was under an obligation to identify alternative placements for Miss Coughlan prior to the closure decision. Reliance was placed on the stages of the transfer procedure referred to above. It was submitted that the obligation to consider the options for where care might best be provided only arose at the third stage of the four-stage process. The new care setting for each individual patient was only identified at the fourth stage of the transfer process. 102. In our judgment the health authority's handling of the assessments and the finding of suitable alternative placement was not established as a separate ground for challenging the decision to close Mardon House. 103. The concerns of the health authority about the practical implications of the judge's decision on these two points are well understood. In the absence of special circumstances, normally we would expect it to be unrealistic and unreasonable, on grounds of prematurity alone, for the health authority in all cases to make assessments of patients and to take decisions on the details of placement ahead of a decision on closure. Neither the statutory provisions nor the guidance issued expressly require assessments to be made or decisions on alternative placements to be taken before a decision to close can be lawfully made. 104. If and when a decision is taken to discharge Miss Coughlan and to place her in alternative accommodation, it may be open to her, on the grounds of the alleged shortcomings in the assessment procedures and in the consideration of alternative placements, to challenge the lawfulness of those decisions."

[90]As is apparent from that extract, that was a case in which the Master of the Rolls said that neither the statutory provisions nor the guidance issued expressly required assessments to be made or decision on alternative placements to be taken before a decision to close could lawfully be made and in the absence of special circumstances normally the Court of Appeal said that they would expect it to be unrealistic and unreasonable on the grounds of prematurity alone for the health authority to make assessments of patients and to take decision on placement ahead of the decision on closure.

[91]Again, in my view that is a very different case from the present. That was a case in which, as pointed out by the Master of the Rolls in paragraph 98, under the guidance there were four distinct stages in the transfer process, the first of which was the closure decision and it was only after that that the detailed transfer procedures operated. The health authority submitted it would be impractical and unrealistic in the vast majority of cases to carry out the assessments and to identify alternative placements prior to a closure decision, let alone prior to consultation on a proposed closure. Funds for the development of alternative facilities might only become available after the closure decision was taken. Only then would the range of alternative available placements become clear. Large closure programmes may take years to implement, in which case assessments and alternatives facilities considered at the time of consultation or closure would change over time and in practice the necessary co-operation of individual patients for effective assessments and alternative placements might be more difficult to obtain before rather than after a final decision had been taken on closure. Counsel had submitted that those issues were of great practical importance for health and social services authorities throughout the country.

[92]In my judgment, again, this is a very different situation. This is a case in which the decision to close was specifically proposed and accepted on the basis that these four users would go to specified alternative centres and the decision to close was inextricably linked with a recognition, explicit and implicit, both by the officials and by the Council that the closure would only be justified if the needs of these users could be met at Evesham and Cherry Orchard where it was anticipated they would go. I should add in this context that there were, of course, a number of factors leading to the officials recommending the closure of Pershore and the transfer of the users to Evesham and Cherry Orchard. These included a bona fide, no doubt, view that their needs could be met but were not confined to those considerations. In my view, the Council was perfectly entitled in considering proposals for change to take into account other factors. Meeting the needs of the users is not the only factor in deciding how those needs should be met. There are no doubt all sorts of different ways in which those needs could be met and the Council has had an obligation, and certainly an entitlement to consider alternatives. However, and of course I entirely accept it is not for this court to substitute its view of the balancing of all those factors for the views of the Council, that does not alter the fact that the task that the Council set itself, as I apprehend it, was a task which included satisfying itself that the consequence of closing Pershore would be that the needs of these users would continue to be met at Evesham and Cherry Orchard. In my view, the basis upon which they sought to satisfy themselves was insufficient.

[93]It may well be that the members of the Committee believed that a greater analysis had been done involving much more detailed attempts to marry up staff availability and needs than had in fact been done. That is because of the assurances that they were given to which I have referred. In that context, Miss Markus relied on the case of Georgiou v London Borough Enfield

[2004] EWHC 779

Admin, a decision of Richards J (as he then was). Richards J referred to a passage in the judgment of

Judge LJ in Oxton Farms v Selby District Council, 18th April 1997:

"In my judgement an application for judicial review based on criticisms on the planning officer's report will not normally begin to merit consideration unless the overall effect of the report significantly misleads the committee about material matters which thereafter are left uncorrected at the meeting of the planning committee before the relevant decision is taken."

Referring to the details of his case Richards J stated:

"The general impression conveyed by that passage was that highways matters were not a problem. Mr Juer's concerns were not mentioned. Nor were they mentioned at the meeting on 17 June itself. The essential question is whether their omission resulted in the committee being significantly misled or otherwise led to a failure properly to carry out the exercise required by s.54A. 60. If Mr Dinkin is right in his submission that Mr Juer's points contained nothing of substance, then plainly it was unnecessary to draw them to the attention of the committee and their omission was of no consequence. I accept that some points fall readily into that category. Others, however, give rise to greater difficulty: 61. Perhaps the single most important of the points in Mr Juer's memorandum of 30 May is no.4, where he states that the gradients shown are steeper than the maximum permitted under UDP standards. Its potential importance lies in the fact that it is picked up in the email of 2 June, where he says that flattening gradients could well lift the whole building out of the ground, adding to its mass. If this was right, I have no doubt that it ought to have been drawn to the attention of the committee. But Mr Prutton has provided detailed evidence to show that it was not right and that the gradients on the approved plans do comply with the standards referred to in the relevant policy of the UDP, namely policy GD8. I am conscious of the danger of getting drawn into planning judgments that are not for the court. I take account of the fact that Mr Juer states at point no.10 that the plans and elevations are not consistent. I am also concerned about the fact that the council's own evidence does not seek to cast doubt on the correctness of Mr Juer's concerns. On the other hand, the claimant has not advanced any positive case as to non-compliance with the UDP or with standards referred to in it and has put forward nothing to cast doubt on the substance of Mr Prutton's evidence that the gradients do comply with the standards. In the circumstances I am not satisfied that Mr Juer's concerns about the gradients needed to be drawn to the attention of the committee. 62. On the other hand, some of Mr Juer's other points cannot be dismissed by reference to objective material in the same way as can his point on gradients. His concerns about the access junction (no.5), the ramp and the adequacy of passing places (nos.7 and 9) and the collection of refuse (points no.3 and 10) – all of them being points that contributed to his advice that the application should be refused on the two grounds stated by him - raise issues of planning judgment. The judgmental nature of the issues is emphasised by the terms of the UDP policies to which he refers. For example, policy GD6 is 'to have regard ...to the traffic likely to be generated ... and its implications for the locality'. Policy GD8 is 'to require that the site access and servicing of all development normally complies with the council's standards ... and in particular ... (c) that refuse storage facilities are carefully sited and screened in all cases ...; (d) that ... there are adequate arrangements for circulation, servicing and off-street parking ...'. Policy T13 is 'to assess proposals for the creation or improvement of an access onto the public highway ... in accordance with the following criteria ...'. It is not for me to make the requisite judgments, e.g. by way of accepting Mr Dinkin's submission that it is plain from the plans that the access to the highway would not pose any problems. It may be inferred from the council's evidence that the council's senior officers did not consider Mr Juer's points to be without substance. 63. In those circumstances I am not persuaded by Mr Dinkin's submission that Mr Juer's comments should be regarded as being without substance or no more than technical points on which senior officers could properly form a different assessment. Nor in my view can they be dismissed on the basis that even if they had been brought to the attention of the planning committee, they could have had no effect on the outcome, in that members could not reasonably have accepted Mr Juer's advice or concluded that the proposals would be in breach of UDP policies. 64. That makes it necessary to consider how, on the council's own evidence, the comments were actually dealt with. 65. As to the council's evidence that it was that thought that the matters raised by Mr Juer could be covered by planning conditions, there is of course no problem in principle about the use of appropriate conditions to deal with matters that might otherwise justify the refusal of planning permission. Where, however, it was being said that the proposals were contrary to policies in the UDP (as was the case with some of Mr Juer's concerns, even if one discounts the point about gradients), it seems to me that the attention of members ought to have been drawn to the concerns expressed and to the way in which it was said that they could be met by conditions. The relevant judgment was for them to make, even though they would no doubt rely heavily in practice on the advice given to them by senior officers. As it was, the report not only failed to draw their attention to the concerns or to the view (in so far as this was the case) that they could be met by conditions, but gave very little information about the conditions themselves. It referred to them only in summary form, e.g. '6. C13 Details of Loading/Unloading/Turning Facilities' and '7. C14 Details of Access and Junction', these apparently being the headings of the council's standard conditions. It did not include any reasons for the imposition of such conditions. The full text of the conditions and the statement of reasons only came later, with the actual grant of planning permission. 66. In his submissions Mr Davey sought to identify which particular conditions addressed each of the concerns raised by Mr Juer. I have to say, however, that I found this exercise unsatisfactory since it is in the first instance for the decision-making committee, not for the court, to satisfy itself that the conditions are apt to meet the concerns expressed. The material placed before members of the committee did not enable them to carry out that exercise. Paragraph 69: "

The main issue raised by this ground is whether the members of the planning committee were given adequate information about the up to date position and/or whether they were left with the erroneous impression that the concerns had been resolved. ... Accordingly, and again in application of the principles in Oxton Farms v. Selby DC (above), I take the view that on the issue of need the report to members was materially deficient and misleading. It resulted in the committee proceeding on a mistaken factual basis and failing to have proper regard to a material consideration in reaching its decision. ... Taking everything into account, I have come to the conclusion that the members of the planning committee were not given sufficient information to ensure the proper discharge of their functions in relation to this planning application. It was plainly a difficult and highly controversial decision, reached by the narrowest of majorities. Members needed to be fully aware of the nature and extent of concerns expressed on all material issues, so that they could perform the requisite judgments both as to compliance with the UDP and as to the nature of, and weight to be given to, other material considerations. I accept that what was said in the report and at the meeting itself must have alerted them to the extent of the opposition and to most of the important issues. I also accept that, as was made clear in Oxton Farms v. Selby DC, a sensible and practical approach must be adopted towards officers' reports and too much should not be expected of them. On the particular facts of this case, however, I take the view that the report did not do enough. The deficiencies identified in relation to the highways/access issue (ground 1), the issue of need (ground 3) and the overall public response to consultation (ground 4) are substantial when viewed individually. When aggregated they give rise to a strong case that the committee was not made sufficiently aware of relevant information and that its decision was flawed in consequence."

[94]In my view, there was in this case nothing that could remotely be described as a deliberate attempt by the officials to mislead the Cabinet. I have no doubt that all concerned were acting entirely bona fide and in what they considered to be an appropriate way. But the question ultimately remains whether the decision was taken on the basis of sufficient and adequate information such as to enable the decision maker to make a rational decision. I was reminded by both counsel of the well-known dictum of Lord Diplock in Secretary of State for education and science v Tameside Met Borough Council

[1977] AC 1014

at 1064, 1065:

"What he had to consider was whether the way in which they proposed to give effect to that preference would, in the light of the circumstances as they existed on June 11, 1976, involve such interference with the provision of efficient instruction and training in secondary schools in their area that no sensible authority acting with due appreciation of its responsibilities under the Act could have decided to adopt the course which the Tameside council were then proposing. It was for the Secretary of State to decide that. It is not for any court of law to substitute its own opinion for his; but it is for a court of law to determine whether it has been established that in reaching his decision unfavourable to the council he had directed himself properly in law and had in consequence taken into consideration the matters which upon the true construction of the Act he ought to have considered and excluded from his consideration matters that were irrelevant to what he had to consider: see Associated Provincial Picture Houses Ltd. v. Wednesbury Corporation [1948] 1 K.B. 223, per Lord Greene M.R., at p. 229. Or, put more compendiously, the question for the court is, did the Secretary of State ask himself the right question and take reasonable steps to acquaint himself with the relevant information to enable him to answer it correctly?"

[95]Applying that latter test to this case, in my view Miss Markus is right to submit that reasonable steps were not taken to provide the decision maker with the relevant information to enable the decision maker to make a rational decision. That is not to say that I am intending by that finding to make any general criticism of the Council or its officers, who, in my view, during the consultation process displayed a genuine and open desire to keep the Friends of Pershore informed as to their thinking and genuinely intended to approach the process of making a recommendation and then taking the decision in good faith. The respect in which, in my view, the decision is vitiated is the very particular respect to which I have already referred in some detail.

[96]Miss Markus relied on a passage on the decision of Hooper J (as he then was) in R v Birmingham CC ex parte Killigrew at page 117:

"What was needed was a very careful assessment of why, if that was the case, 12 hours care was no longer needed. The importance of the respondent satisfying itself that this was the case is obvious. The applicant and her husband were asking for at least the 12 hours care to continue. Her condition was inevitably and steadily deteriorating. Not continuing the 12 hours care could, it was being said, have serious consequences for the applicant, and was certainly likely to cause deep distress to the applicant (see page 17). The decision to reduce was made at a time when it had been decided that two carers were needed for lifting. It was important that the reduction to six hours care was not driven by the need to have two carers to carry out the task. On the evidence available before me, the reduction could only be justified if there was no continuing need for 12 hours care and not simply because two carers were needed when only one had sufficed earlier."

[97]That was, of course, a case entirely on its own facts and I do not understand Miss Markus to be relying on the detail. But, in my view, what it illustrates is that there are cases, and in my view this is one, in which the relevant decision does require a level of detailed consideration as to the ability of what is proposed to meet the assessed needs which in this case has not yet been carried out.

[98]I have given this case very anxious consideration, not only because I have reminded myself of the need and importance not to substitute my view for that of the Council, but also because I am conscious both of the fact that there are other factors which the Council legitimately took and had to take into account, and also that these users are not the only people affected by the decision to close Pershore. Indeed, the fact that they are not the only people and that there are other potential users of the Council services at Perryfields, Cherry Orchard and the satellites who may be affected by a decision to quash the decision to close Pershore is, if anything, a factor that underlines the connection between the decision to close Pershore and the question whether the needs of users can be met under the new arrangements. It is, therefore, my view that the court should be very slow before overturning a decision that may have consequences in terms of delay, both for other users and for staff and for the Council. Nonetheless, having given the matter very careful and anxious thought, in my view Miss Markus is right that when this decision was taken the Council was not in a position at the time it took the decision to reach a rational conclusion that the staff availability and facilities under the new arrangement would be sufficient as reasonably to lead to the conclusion that they would meet the needs of the claimants. That being so, in my view, the decision should be quashed.

[99]In the light of those findings, it is not, in my view, necessary or productive for me to lengthen this already long judgment by dealing at length with the question of consultation. I should just add this. Miss Markus has submitted that no sufficiently detailed calculation was made of the staff ratio needed to meet the claimants' needs. She accepted that the defendant was entitled to reach the opinion that less than a one-to-one ratio at all times was acceptable for the claimants, but she submits that the defendant took no steps to identify how many hours per day or per week, or how many minutes per hour were needed for the claimants and thus that the defendant did not know whether the staff that would be available at Cherry Orchard would be sufficient to meet their needs and that, although she accepted that up to five full-time users could be transferred to satellites, thus freeing up time of carers at Cherry Orchard, there was insufficient information to reach a reasonable conclusion that the claimants' assessed needs were capable of being met given the net loss of staff and the unknown extent to which that loss would be compensated by the transfer of some better able users to satellites, and the lack of detailed information as to the extent to which a reasonable conclusion could be reached that the claimants' assessed needs were capable of being met by such lower ratio as would be available at Cherry Orchard.

[100]I accept that submission. Miss Richards submitted that the defendant was entitled to reach its conclusion that the claimants' needs were capable of being achieved at Cherry Orchard by reference to their assessed needs, its knowledge of the assessed needs of the existing users of Perryfields and Cherry Orchard, its general experience of reconfiguring other centres in the county and the success of the model of Halcyon. Miss Richards further submitted that the defendant as decision maker was entitled to base its decision on whatever information it thought was appropriate and it was not for the court to substitute its own judgment. The defendant rejected option 1 of keeping Pershore open because the staff ratio was higher than needed to meet the claimants' assessed needs. In my view, the defendant was entitled to reach that conclusion, but it does not follow that those needs would be capable of being met at Cherry Orchard. That depends upon the staff numbers there.

[101]Miss Richards also submitted that I should infer that the defendant took into account a lot of information that was not necessarily available to the court. Of course in general the court must be very slow to do other than to assume that a great deal of information may have been available, but on the facts of this particular case, having regard to what was said by Mr Chandler in paragraphs 17 of his first witness statement and paragraph 9 of his second witness statement, in my view this is not such a case. In my view, the defendant was entitled to take the view that its previous successful experience of reconfiguration and the successful model at Halcyon justified confidence that the claimants' needs might be met, but in my view there were limits on the extent to which that information and approach provided sufficiently detailed information to enable the defendant to be satisfied reasonably that the claimant's needs would in fact be met. They showed that flexibility and integration with more able users were capable to leading to economies of scale and reductions of staff and numbers needed in general terms but, as I have indicated, the defendant never, at any rate in any evidence placed before me, identified either at Halcyon, on which reliance was also placed or in the business plan on which reliance was placed, a minimum staff ratio needed to meet assessed needs of the mix of PMLD and others, more able users, let alone the anticipated mix at Cherry Orchard, still less did they identify that the projected staff available would be sufficient to provide that ratio.

[102]I repeat that while it may well be, based on experience elsewhere and in particular at Halcyon, that an analysis of the claimant's assessed needs and the needs of other users at Cherry Orchard and Perryfields, when compared to the numbers of staff projected to be available could lead to the conclusion reasonably that the claimant's needs will be met, that critical analysis not yet having been done, that conclusion cannot yet reasonably have been reached.

[103]So far as consultation is concerned, in my view the defendant approached the consultation in a proper and appropriate manner. They gave the Friends and the claimants sufficient information to enable them to make the necessary targeted representations to this extent. They enabled the Friends to represent, and indeed they did represent, that the Council did not yet have sufficient information to satisfy itself that the assessed needs of the claimants could be met at Cherry Orchard. Miss Markus submitted that they were entitled to be given detailed information as to the way in which Cherry Orchard would operate so as to enable them to make targeted criticisms as to the way in which the claimants' needs would be met. In my view, that is not right. The reality is that the real complaint that the claimants have in this case is not that they were not told enough in order to make the proper representations, but rather that the representations which they did make which went to the key point were not met with the answer they wished. Whether that did or did not give rise to an unlawful decision is a quite separate matter on which I have already expressed my view. That view does not depend upon any obligation on the part of the Council to take into account the representations of the consultees.

[104]So far as consultation is concerned, in my view the key point is this. It was plain to the Friends that the detailed analysis which they considered necessary for a reasonable conclusion to be reached as to whether Cherry Orchard would meet the assessed needs of the claimants had not yet been taken, and therefore they were not disadvantaged in being able to make targeted representations on that issue, and indeed they did make such representations. In my judgment, therefore, the consultation ground of challenge is not made out.

[105]Miss Richards had an additional alternative point which was that the overall consultation process was a full and fair one, so that any inadequacy in the detailed information would not vitiate the consultation process. I agree that the consultation process overall was not flawed. However, if I had been of the view that the information given had been inadequate to enable the Friends to make properly targeted representations, I would leave open the question as to what the effect would be of that on the overall point that the consultation process was not flawed. In my view, it would all depend upon the respect or respects in which the consultation had been found to be deficient. Since I have not found it to be deficient the issue does not arise.

[106]I apologise to everyone, particularly the shorthand writer for the time this judgment has taken to deliver orally. As I indicated at the end of the hearing, and has in fact proved to be true, had it been a written judgment, it would have been delayed by a considerable period of time and I was very concerned to get the judgment out as soon as possible.

[107]In terms of the order?

[108]MISS MARKUS: My Lord, just before I address you on the order perhaps I could address you on a couple of factual matters. Rather than going back to those now, could I respectfully suggest that the draft judgment, before it is finally approved by your Lordship, comes to myself and Miss Richards so that we can identify any possible factual errors or documentary reference errors and tidy it up in that way. I do not think there are significant issues to be raised in that respect but they are textual.

MR JUSTICE STADLEN: I would find that very helpful.

[110]MISS RICHARDS: The only point I was going to raise in terms of fact and accuracy is your Lordship referred several times to the transfer of five service users to the satellite centres. It was of course the defendant's submission and case that it may well be there was a significantly large number who had been transferred, albeit they might amount to the equivalent of five. That does not effect the substance of your Lordship's reasoning and could no doubt be reflected in addition of appropriate wording.

[111]MR JUSTICE STADLEN: I think five was the shorthand for the net effect. You are absolutely right. I am grateful for you drawing my attention to that. This has been a long and difficult case and a lot of detail. As I say, I have been concerned to get a judgment out as soon as I can. I would find it very helpful if, when the draft is circulated just, as it were, suggest factual inaccuracies, corrections. If you could agree them that would save a lot of time.

[112]MISS MARKUS: I am sure we could do that.

MR JUSTICE STADLEN: That would be helpful.

[114]MISS MARKUS: In relation to the order, Miss Richards and I addressed you on what we say would be the appropriate order if the claim was successful which is that the decision to close Pershore Day Centre be quashed but other than that no order is needed, save for the question of costs I will come to.

[115]MISS RICHARDS: That is right. For the avoidance of doubt, Miss Markus and I are ad idem on this. We consider that the order and the judgment does not effect what has happened to the other day centres where the decision has effectively been put into place. So the wording of a quashing order in respect of the decision to quashing the Pershore Day Care Centre adequately reflects that.

[116]MR JUSTICE STADLEN: I am sure that must be right. I have indicated that I have been influenced by the connection between closing Pershore and moving users to Cherry Orchard. If it is the case that the other arrangements have already been put in hand so that the disruptive effect of this decision is minimised nobody could be more pleased than me.

[117]MISS RICHARDS: They have, my Lord. Perryfields is closed and Cherry Orchard is about to reopen.

[118]MR JUSTICE STADLEN: I have expressed in that case the hope that the process of reconsidering this decision may be able to be taken very quickly and may be positively affected by the fact that the detail of the staff ratio at Cherry Orchard may now be much more specific and definite than it was at the time in February 2008. Therefore the necessary calculations may be taken relatively quickly.

[119]MISS RICHARDS: The Council has an open mind as to what it will do. It will need to consider your Lordship's judgment.

MR JUSTICE STADLEN: Perhaps you could both draw up an order.

[121]MISS MARKUS: My Lord, I also make an application for the claimants' costs. We have won the claim and, my Lord, I have to acknowledge that we were unsuccessful on the consultation issue but I say two things in respect of that. First, in a sense it was the other side of the same coin as was acknowledged during discussion with your Lordship. Secondly there were only additional issues arising on consultation, therefore they formed a minor part of the overall submissions and should not be reflected in anything other than a costs order in the claimants' favour.

[122]MISS RICHARDS: My Lord, I obviously cannot resist some form of costs order but I say there are three factors that need to be taken into account and reflected in the costs order. The first is that, as your Lordship may or may not recall, because it was not pertinent by the time of the hearing before you, the claimants originally sought permission to apply for judicial review on a significantly wider range of grounds. Those were raised in the pre-action correspondence. They were fully pleaded. They were addressed in the claimant's evidence. They were addressed in the defendant's acknowledgement of service. Costs were incurred on both sides. Then, post the defendant's acknowledgement of service the claimant abandoned a number of those grounds. Not only should the claimant not be entitled to their costs in relation to those matters but the defendant incurred costs and as a matter of principle it is entitled in relation to that. The second point, as my learned friend has already anticipated, that the claimants have not succeeded on one aspect of their challenge. I accept that the main thrust of the challenge at the hearing was the irrationality challenge, so I do not suggest that means their entitlement to costs is somehow extinguished. That ought to be reflected on the fact there were two points in the amended grounds that effectively the claimants did not pursue and those are the points on paragraphs 39 and 41 of the amended grounds, pages A11 and A12 of the bundle. My Lord, if one looks at those pages.

MR JUSTICE STADLEN: Page?

[124]MISS RICHARDS: Pages A11 and A12 of Volume 1.

MR JUSTICE STADLEN: That is the original statement of grounds.

[126]MISS RICHARDS: This is a revised statement of grounds. This is the case that was effectively pursued, at least up until the point of the hearing. Paragraph 39 essentially was not developed by my learned friend in her submissions. However, 40 is effectively the point your Lordship has rejected and paragraph 41 was not pursued by my learned friend at the hearing. Those factors ought to be reflected in the costs order.

[127]The third issue that ought to be reflected in the costs order--

[128]MR JUSTICE STADLEN: This is a point about costs that they did not know how the costs have been saved.

[129]MISS RICHARDS: Yes. Forty-one is a separate point.

MR JUSTICE STADLEN: Taking it into account?

[131]MISS RICHARDS: Yes. The third area where some discount or allowance needs to be made is that a number of points were raised by the claimants' solicitors in correspondence, particularly around the time of the service of the defendant's evidence in relation to factors such as another service user and transport costs. Your Lordship may recall that the defendant therefore filed evidence, two witness statements of Mr Young, about issues relating to transport costs, directly in correspondence to the issues raised at 599 to 604 of the bundle. The claimant should not be entitled to their costs in relation to raising those issues.

MR JUSTICE STADLEN: In the ordinary course it is Part 44, the partial costs order.

[133]MISS RICHARDS: Yes. There are, in my submission, two ways the court could deal with it. The first is to make a very general assessment and give the claimant a percentage of their costs, which is a crude broad brush but relatively straightforward and inexpensive way of going about it. The second is to make a costs order which says the claimant gets its costs or the defendant gets its costs of the factors identified.

MR JUSTICE STADLEN: There is a provision that says the court must try to avoid doing that if it can.

[135]MISS RICHARDS: Yes. That latter approach although more precise will lead.

[136]MR JUSTICE STADLEN: Waste a lot. What do you suggest?

[137]MISS RICHARDS: The percentage I was going to suggest is the claimant gets 60 to 65 per cent of their costs. That is a rough and ready broad brush approach.

[138]MR JUSTICE STADLEN: Yes. Miss Markus?

[139]MISS MARKUS: First of all, in relation to the issues that were raised and then dropped after the acknowledgement of service. The general rule is that the defendant is not entitled to their costs of drafting the acknowledgement of service in any event. The fact that therefore the defendant has incurred costs in relation to some aspects of grounds that were not pursued at that point is not of itself an answer.

[140]The other point is this. The time that the claim was brought, your Lordship will recall from the chronology that the Overview and Scrutiny Committee considered this matter on 9th April and wrote to the claimant on 14th April 2008. By then the claimants were very close to the time limit for issuing proceedings and therefore there is a letter before claim but had to of necessity issue the grounds before they knew what the defendant's response would be. As soon as the claimants had an opportunity to consider the defendant's response, the claimants amended the grounds and did not even seek permission on grounds that the claimant had assessed and were unlikely to have a prospect of success. In my judgment, the claimant acted responsibly. Had there been time when the claimant put these matters in a letter before claim to which the defendant had been able to respond before proceedings had been issued the claimants would, for the same reason, it is fair to infer, have dropped the grounds that it ultimately decided to drop once it knew the defendant's response.

[141]The second point in relation to consultation, just very briefly to say this. Your Lordship will recall that the way that the argument was put in relation to consultation point was that I said that we only complained of inadequate consultation if we were wrong that the defendant did not have a sufficient basis for reaching the decision. But if the defendant had a sufficient basis for reaching the decision the defendant did not disclose it in consultation. If we were right that the defendant did not have a basis for reaching a decision, I have to acknowledge there was nothing further that could have been disclosed in consultation. The points truly were the reverse sides of the same coin and the additional efforts and time in relation to consultation was, in my submission, negligible.

[142]In relation to the points that were not pursued at the hearing but were in the grounds, paragraphs 39 to 41. Paragraph 39 was about a failure to provide sufficient information in relation to the financial matters and the underlying financial aspect of the business case. My Lord, those matters were still unclear at the time that the claim form was amended and remain the subject of further correspondence and attempts by the claimant to explore the financial issues. Your Lordship will have seen that right up to the day before the hearing further evidence was being provided by the defendant in relation to financial matters, not necessarily directly matters that were referred to in paragraph 39 but in relation to financial matters which had been entirely unclear up to that point.

[143]As far as paragraph 41 is concerned, my Lord, that was a very short point and, in my submission, it is simply too short to amount to anything other than a negligible addition to the costs, if any.

[144]As far as in relation to transport costs, that was not a matter the subject of pleadings. The claimant had not asked for further evidence from the respondent in relation to that matter. In fact the claimant had before the defendant filed evidence in relation to transport costs made it absolutely clear that the issue of transport costs was not pursued as part of this claim. If the defendant chose, entirely unnecessarily, to submit evidence in that respect, that was a matter for itself.

MR JUSTICE STADLEN: That is a bit harsh to blame them for responding to your correspondence.

[146]MISS MARKUS: We did not ask them to supply evidence. We wrote a letter. It was originally dealt with briefly in correspondence in reply. We had no idea that the defendant was proposing to provide witness statement evidence at a point when in correspondence the claimants have clarified they did not propose to raise the issue of transport costs in the proceedings. It was after that the defendant served a witness statement in that respect.

[147]In relation to just two more points. In my submission there were proper criticisms to be levelled at the approach of the defendant to certain aspects of this case, and I raised in particular the matters that I referred to in the notes that I sent to the court two days before the hearing, in which I submitted that the claimant had made it absolutely clear on what basis they understood the defendant's financial case to be put with regard to the staff costs. They were ultimately the subject to the witness statement by the defendant's Director of Finance and had never disabused the claimant as to that understanding until very shortly before the hearing. If there is going to be any reduction for the claimants' costs because of the matters Miss Richards raises, in my submission, it should be compensated for by the conduct of the defendant in those respects.

[148]Finally, I say if there is to be any reduction in the claimant's costs which, in my submission, I said there should not be, then the percentage should be very much less than 35 to 40 per cent proposed.

MR JUSTICE STADLEN: What figure?

[150]MISS MARKUS: I say there should be none.

MR JUSTICE STADLEN: Your fallback position.

[152]MISS MARKUS: My fallback position would be 1 or 2 per cent, a very, very low amount. The short point is, the bulk of this argument the claimant has won and we are entitled to our costs.

MR JUSTICE STADLEN: Is there anything in reply?

[154]MISS RICHARDS: My Lord, only two points briefly. My learned friend suggested there is some general rule that the defendant does not get its costs of acknowledgement of service. I was quite wrong, in my submission the Mount Cook decision in the Court of Appeal which was dealing with the question of when permission is refused, what costs does a defendant get, made it clear that a defendant is entitled to the costs of filing summary grounds. What they are not generally entitled to is the costs of turning up at a permission hearing and opposing permission and have advanced summary grounds, which does not arise here.

MR JUSTICE STADLEN: Do you accept that?

[156]MISS MARKUS: That is right if the defendant applies for the costs in its acknowledgement of service. I am not sure if this defendant did in this case.

[157]MISS RICHARDS: The point I am simply making is that we did not at the time of the grant of permission because permission was granted and not refused. You make that application when permission is refused. It is part of the costs. Rather more importantly, the claimant has incurred substantial costs in raising the letter before claim, in pleading and in filing evidence, because the witness statements of Mr Bradley and Mrs Hall and so on deal with matters relevant to the abandoned claims. The claimant incurred costs in relation to these issues not just a question of the defendant having done so and the claimant should not be entitled to those costs and the defendant should be entitled to its costs.

[158]The only other point I wanted to respond to is in relation to the transport costs. There is a very clear request for answers in the correspondence at page 599 of the bundle Volume 2, page 599 halfway down the page, a query about transport costs, an assertion that the Council has not responded adequately and some detailed facts set out, at page 600 the concluding passage: "Please now provide us with the correct information" and then page 602, the local authority made it clear in the last paragraph on page 602 that they would revert. This was just as there was a hearing pending and the Council's evidence was being filed. At page 604 the response was the putting in a statement from Mr Young, a perfectly reasonable way of responding given that the issue had been raised in the defending hearing. That still did not satisfy the claimant's solicitors, page 608 was yet further queries about transport costs which were then responded to by reference to a second statement from Mr Young. It was perfectly appropriate for the defendant to respond in the way it did. The claimant should not be entitled to its costs in relation to the raising of those issues which ultimately formed no part. It is for those reasons which I say it should be factored into the question of discount.

[159]MISS MARKUS: My Lord, I do accept what Miss Richards says about the Mount Cook case. Just for clarification, I would not want your Lordship to proceed on an erroneous basis. Could I simply just say that in relation to the transport costs that, of course, these matters were being pursued in correspondence but the defendant was fully aware that that did not form any part of the grounds that we relied upon.

[160]MR JUSTICE STADLEN: There is an application by Miss Richards on behalf of the defendant that there should be a partial costs order under part 44.3.6a to reflect a number of factors. First and principally that the claimants failed on the alternative ground of challenge based on inadequate consultation. Second, that certain matters were abandoned by the claimant after they had been responded to by the defendant in the acknowledgement of service which had incurred costs and it was said that neither the claimant should not be entitled to recover their costs of those matters and the defendant should be entitled to its costs of responding, at least in writing to those matters, and third, that there were matters in relation to transport costs where the claimants' solicitors had written correspondence asking for answers which had led to costs being incurred including by serving a couple of witness statements and which it was said should not be reflected in a partial costs order because those were matters that were never pleaded or pursued, and finally that there were two matters referred to in paragraphs 39 and 41 in the amended grounds of claim which were themselves not pursued. She submitted that the reduction should be such that the defendant only pays 60 to 65 per cent of the claimants' costs.

[161]Miss Markus in response submits there should be no partial costs issue. The consultation issue she accepts she lost but submitted it was just the reverse side of the main point on which she won and it did not add materially to the length of the hearing or the preparation. In relation to the points originally taken in the grounds of claim but abandoned, she submitted that because the Review Committee of the Council only wrote to the claimants on 14th April 2008, close to the time limit, there was not time to have the normal reaction correspondence which, had it occurred, would have led to those points not being taken in the first place. So far as the transport is concerned, she submitted that these were matters, albeit she accepted raised in correspondence, were raised at a time where it was made clear that the claimant was not going to rely on this for the challenging and therefore it was entirely up to the defendants what they put in evidence. They were not asked to and did not need to and they should not recover the costs of it. The paragraph 41 point she described as a short point which did not add materially to the costs and so far as the paragraph 39 point, which was to do with the insufficient information in relation to the financial basis on which the decision was taken, she submitted that it was still not clear at that stage on what financial basis the decision had been taken. That evidence was only provided very late to the court, and it was therefore legitimate for the claimants to pursue that matter until that stage.

[162]Finally, she submitted in effect what is sauce for the goose is sauce for the gander and if the claimants are going to have anything knocked off, that should be set off something referable to the defendants and their conduct of aspects of the case in that there was in fact, as it subsequently emerged, errors in the evidence of Mr Chandler in relation to how the financial matters had been calculated which did not emerge until during the hearing.

[163]In my judgment, this is a case in which it is right that there should be some deduction in the costs paid by the defendant to the claimant. The claimants lost on the consultation point and although there is some force in the submission that it was the flip side of the rationality reasons attack, nonetheless some considerable amount of authority on both sides was quoted and the matter occupied some time in written and oral submissions. It seems to me that of the points relied on by Miss Richards the most substantive.

[164]In relation to the other matters they are, in my view, comparatively minor. It is fair to say that one did get the impression from the papers that there was perhaps an over zealous approach in parts, but only in part, adopted by the claimants and an impression that perhaps points were taken which might have been better not to take.

[165]Taking these matters all in the round, in my judgment the correct order is that there should be a discount and that the appropriate discount is 15 per cent. Accordingly, in my order the right order is that the defendants should pay the claimants 85 per cent of their costs.

[166]MISS RICHARDS: My Lord, the only outstanding matter is the question of permission to appeal. I ask for that not, I should make clear because I have instructions that the Council wishes to appeal. The Council had no knowledge of what your Lordship's decision would be and would want to reflect carefully upon it. Just in case the Council does decide to appeal, I need to preserve my client's position by asking for permission to appeal. I do so without any intention of repeating arguments that your Lordship has already heard. I do not think your Lordship's decision on that question will be assisted by any repetition of the argument. If permission to appeal is refused, I would simply ask for an extension of time for lodging any application at the Court of Appeal. Again, I do so only to preserve my client's position because it is the Easter Vacation and indeed because we do not have a transcript and there will need to be a note to the Council to make an informed decision.

MR JUSTICE STADLEN: Quite.

[168]MISS RICHARDS: What I would not want is the Council to have to, in order to comply with the 14 day time limit, to issue an application for permission to appeal when it may have no wish to pursue any appeal. I would ask for an extension of 28 days in that event.

[169]MR JUSTICE STADLEN: I think that time begins to run from the date of the decision, which is today. In my judgment, subject to anything Miss Markus wants to say, it is obvious that you should have the transcript before time begins to run because otherwise your clients cannot make an informed decision and you cannot give informed advice.

[170]MISS MARKUS: My Lord, that is perfectly acceptable to us. Obviously I do oppose any grant of permission to appeal by your Lordship.

[171]MR JUSTICE STADLEN: I do not need to hear you on that. I will not grant you permission to appeal. What I will do is to extend time to service of its notice. Would you be happy with 14 days after the approved transcript because you will have the draft?

[172]MISS RICHARDS: I will be perfectly happy with that.

[173]MR JUSTICE STADLEN: I will extend time for service of the appellant's notice to 14 days after the circulation to the parties of the approved transcript, not the draft transcript.

[174]MISS MARKUS: Before you tidy things up, could I mention one other matter in relation to costs which is to ask for an order of detailed assessment of the claimants' publicly funded costs.

[175]MR JUSTICE STADLEN: Yes. Two other matters. First of all I need to repeat but with greater passion my gratitude to the shorthand writer and the court staff having stayed this late, and second, I mentioned in the course of my judgment my gratitude, well I referred to the forceful and helpful written and oral submissions of Miss Richards. I should like to record my gratitude to both counsel for their oral and written submissions in this case which I found both erudite, cogent and persuasive.