Tiller, R (On the Application Of) v East Sussex County Council [2011] EWHC 3077 (Admin)

Case No CO/14455/2009[2011] EWHC 3077 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Venue Royal Courts of JusticeDate Wednesday, 29 June 2011
Strand
London WC2A 2LL
B e f o r e:
MRS JUSTICE THIRLWALL
Between
THE QUEEN ON THE APPLICATION OF ROBERT TILLERClaimantv
Between
EAST SUSSEX COUNTY COUNCILDefendant
Computer-Aided Transcript of the Stenograph Notes ofWordWave International LimitedA Merrill Communications Company165 Fleet Street London EC4A 2DYTel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court)
MR M HUTCHINGS (instructed by Hossacks Solicitors, Kettering Northamptonshire) appeared for ClaimantMR P PATEL (instructed by the Legal Services, East Sussex County Council) appeared for Defendant
J U D G M E N T

Preliminary

[1]Before beginning my judgment I note that neither counsel nor solicitors have attended for either party. It was my understanding before this morning that the parties had been informed. The Court Clerk has informed me that he has been informed that the parties are aware of the hearing. I find their absence surprising. I do not want to delay judgment. I shall therefore deliver judgment and order an expedited transcript. I understand it can be with me within 5 working days. In that case I shall correct it and then make arrangements for it to be sent to Counsel for both parties. Any consequential matters may be dealt with before the main list on 18 July when my commitments elsewhere would permit me to sit in London. I shall also ensure that my clerk contacts counsel immediately after this judgment so that the parties are made aware of it.

Judgment

[2]This is a claim for judicial review of a decision taken by the defendant, East Sussex County Council on 12 October 2009. The claimant brings his claim on his own account, but there are a number of other people affected by the matters with which I am dealing today. The claimant is the only one who has funding from the Legal Services Commission.[3]The claimant is a disabled person within the meaning of section 1 of the Disability Discrimination Act 1995. He is 67 years old. He lives at St David's Court, a 35 unit sheltered housing scheme in Peacehaven in Sussex. It is owned by Lewes District Council, who also manage it and contribute to staffing costs. The defendant provides a major part of the funding.[4]All the tenants at St David’s are elderly and have disabilities. The living arrangements within St David's Court as at October 2009 were described in the evidence by the council as hybrid; that means that there was rather more support than in the Council's standard sheltered accommodation, but less than in those settings where what is described as "extra care" is provided for those who have greater needs. “Extra care” is provided by the Council at other sites, for example, at Downlands Court in Peacehaven.[5]Until 2009 there had been at St David's for some 10 years a 24-hour on-site warden service. It is plain on the evidence that this service was the reason some tenants chose to live there. The documents produced by the defendant and the claimant’s witness evidence show that the service was extremely popular with the residents for reasons that are obvious. I have read moving tributes to the quality of the round the clock support that was provided. At all times someone was on the premises to assist with whatever difficulties might arise. There was always the certainty of company for a tenant who might seek no more than that. Tenants felt safe knowing that there was someone on hand at all times.[6]Quite separate from the provision of the 24-hour on-site warden service, each tenant had his or her own personal package of care funded by the council.[7]In October 2009 the Council decided to replace this system with a different, cheaper and less complete service. There was to be an on-site manager from Monday to Friday during ordinary office hours. At all other times emergency cover was to be provided via a remote service. A resident would contact the service via an alarm system and the service would provide someone to deal with the emergency. The 24 hour on-site service has been discontinued. It is this decision, made on 12th October 2009, that the claimant challenges by way of his claim for judicial review. The Procedural History[8]On 5 November 2009, the claimant's solicitors sent a letter before action to the defendant. The defendant responded one day later on 6 November. The claimant's solicitors sent a further letter before action on 16 November before a claim for judicial review was finally issued on 27 November 2009. This was accompanied by a statement of facts and grounds and several witness statements, together with an application for a without notice interim prohibitory order preventing the council from implementing their proposed new service. That order was granted by Sir Thayne Forbes on 27 November 2009. The defendant served summary grounds for opposing the claim on 21 December 2009.[9]Blake J refused permission to make a claim for judicial review, and discharged the interim relief on 16 September 2010. The claimant's solicitors renewed the claim on 24 September 2010, and Collins J granted permission to proceed with the claim on 15 March 2011. He also ordered that the hearing be expedited. I heard the claim on 27th May.[10]Between October 2009 and November 2010 the old system pertained. Since then the new system has been in operation. The Council witnesses assert that it is working well. A number of the tenants refute that. It is, I think, likely that those who live at St David's Court have the best idea of how the new system is working, but leaving that aside it is plain that the new system cannot be as good as the old one. Mr Patel, who appeared for the defendant, said as much at the outset of his submissions, realistically accepting that it cannot be argued otherwise. Each time an emergency occurs there is a time lag between the alarm being activated and someone attending. There is no one on hand (outside office hours) to deal with day to day problems, or to provide some company to a tenant who would like it. But it is not for this court to second guess decisions of the Council. I must consider whether or not the decision to change the provision was taken in accordance with the law.[11]The decision of the 12th October 2009 is recorded thus in the minutes: Item 16 - Support Arrangements for St David's Court16.1 Councillor Bentley considered a report by the Director of Adult Social Care. An update of the financial appraisal was given at the meeting and the estimated savings would approximately be £76,640 per year. The saving from the Adult Social Care budget would be £49,700 and from the Supporting People budget would be £29,940. Decision16.2 Resolved to(1) agree the new support arrangements for St David's Court, Peacehaven and(2) agree that the savings made be re-invested into Adult Social Care and Supporting People Services. Reason16.3 The overall level of need within this scheme does not merit an on-site team. Most of those with higher levels of need or concerns about how their needs will be met in the future have opted to apply for and have been offered accommodation at Downlands Court.16.4 Though the process to date has been inclusive and has achieved a high level of co-operation, some tenants, carers or relatives have expressed concern as to how needs will be managed in the future. Additional telecare and the provision of an on-site manager, from Monday to Friday (funded by SP and LDC), plus individual home care services (funded by ASC), will provide sufficient support and care. The intention is to implement the arrangement by December 2008."

Summary of Claim and Response

[12]It is the claimant's case that the Council failed to comply with its due regard obligations under section 49A of the Disability Discrimination Act 1995. It is the defendant's case that it did comply. Alternatively Mr Patel submits that even if I were to find that it failed to comply with its due regard obligations no relief should be granted since the decision taken, had the obligations been complied with, would inevitably have been the same. As to this fall-back position Mr Hutchings, for the claimant, says that should I find that the decision was unlawful I should be extremely slow to refuse to grant a remedy, even if it appears that the decision would have been the same. He does not concede that the decision would necessarily or inevitably have been the same, or that there was no alternative to it. The Law[13]Section 49A of the Disability Discrimination Act 1995 provides as follows: (1) Every public authority shall in carrying out its functions have due regard to - (a) the need to eliminate unlawful discrimination and victimisation; (b) the need to eliminate harassment of disabled persons that is related to their disabilities; (c) the need to promote equality of opportunity between disabled persons and other persons; (d) the need to take steps to take account of disabled persons' disabilities, even where that involves treating disabled persons more favourably than other persons; (e) the need to promote positive attitudes towards disabled persons; and (f) the need to encourage participation by disabled persons in public life."[14]So what does “due regard mean”. I was referred by both parties to largely the same authorities. I was particularly helped by the decision of the Court of Appeal in the case of Brown v Secretary of State for Work & Pensions [2008] EWHC 3158 (Admin), to which I shall refer at some length:82. What is meant by "due regard"? Dyson LJ stated, in Baker, that "due regard" in the Race Relations Act provision meant the regard that is appropriate in all the particular circumstances in which the public authority concerned is carrying out its function as a public authority. The same principle applies here. There must, therefore, be a proper regard for all the goals that are set out in section 49A(1) paragraphs (a) to (f), in the context of the function that is being exercised at the time by the public authority. At the same time, the public authority must also pay regard to any countervailing factors which, in the context of the function being exercised, it is proper and reasonable for the public authority to consider. What the relevant countervailing factors are will depend on the function being exercised and all the circumstances that impinge upon it. Clearly, economic and practical factors will often be important. Moreover, the weight to be given to the countervailing factors is a matter for the public authority concerned, rather than the court, unless the assessment by the public authority is unreasonable or irrational: see Dyson LJ's judgment in Baker at paragraph 34. (my emphasis)83. What about the six "needs" to which public authorities must have due regard when carrying out their functions? The "needs" identified in paragraphs (a) to (c), (e) and (f) are goals, such as the elimination of discrimination that is unlawful under the DDA, or the encouragement of participation by disabled persons in public life. So public authorities have to have a proper regard for the need to achieve those goals.84. Paragraph (d) is different, however. That paragraph places on public authorities a duty to have proper regard for the need "to take steps to take account of disabled persons' disabilities, even where that involves treating disabled persons more favourably than other persons". The phraseology is convoluted. It does not identify a goal which is an end in itself. However, in our view the paragraph imposes a duty on public authorities to pay "due regard" to the need to take steps to do two things which are means which will assist in achieving the goals identified in the other paragraphs in section 49A(1). First, public authorities must have "due regard" to the need to take account of the fact of disabled persons' disabilities in the context of "carrying out their functions". Secondly, public authorities must have "due regard" to the need to recognise that this may involve treating disabled persons more favourably than others. But we emphasise that, in both cases, no duty is imposed to take steps themselves, or to achieve results. The duty is only to have "due regard to…the need to take…" the two steps we have identified.The court will only interfere if the public authority has acted outwith the scope of any reasonable public authority in the circumstances"." (my emphasis)[15]I turn then to the background to the decision.[16]Mr Bentley, the Lead member for Adult Social Care at East Sussex County Council, and the decision maker, sets out his understanding of his duties and obligations in his statement thus: “ 2. On 12th October 2009, I was asked to consider a report from East Sussex County Council's Director of Adult Social Care in respect of amendments to the support arrangements for St David's Court, Peacehaven. 3. I was fully aware of the background to this matter in that it related to sheltered housing accommodation managed by Lewes District Council. I was aware that those with higher levels of needs or concerns about how their needs would be met had been offered accommodation at Downlands Court. I was also aware that because of the nature of this facility, a significant number of remaining residents would have a disability of some kind and that the proposed changes (i.e. from 24 hour warden service to telecare service at night and weekends) would have an impact upon them. 4. I am and was at the time fully aware of the County Council's equality duty obligations under the Disability Discrimination Act and its Disabilities Equality Scheme. “[17]That statement succinctly sets out his awareness of a) the factual background to the request for a decision in respect of the future provision at St David’s Court b) some of the detail of that background, in particular the impact upon the residents who would remain of a reduced service and c) the extent of his awareness of the County Council’s duties under the Disability Discrimination Act.[18]I do not accept Mr Hutchings submission that the statement reveals, at most, a general awareness of the Council’s duties under the Disability Discrimination Act. Mr Bentley asserts that he was fully aware and there is nothing in the statement or the decision which suggests that he was not.[19]As I would expect Mr Bentley received a report from a council officer, Mr Barry Atkins, Head of Strategic Commissioning, to which I shall refer in detail later in this judgment. The report was written after the council had devised and implemented a lengthy and detailed process of information gathering, consultation and engagement with tenants and carers as well as managers.[20]The Council set up the St David's project group in 2008. It met monthly for over a year (with occasional exceptions). I have seen all of the minutes of the project group's meetings. Tenants and carers were included in this group.[21]The minutes of the meeting of 5 August 2008 give a useful narrative , "1.1 Barry Atkins provided the background to this meeting. In early 2008 a plan was written to change the level of service provided by Adult Social Care to St David's Court. When this was then put to consultation it was immediately clear that these plans were not only unpopular with tenants some assumed evidence was not robustly verified, and it was decided to extend the process and increase the level of collaboration. An undertaking was made to tenants and carers to start the process again from scratch: This will mean fully engaging with tenants, their representatives, and staff at St David's to create a new plan for the future of St David's. The purpose of this meeting was to agree a new process to bring everyone involved in St David's together."[22]Careful consideration was given to the Project Group’s terms of reference and “key issues” were identified ( see paragraph 6.1 of the minutes): “1. the dependency/needs level of tenants needs to be accurately determined. 2. where the money that each organisation puts in to St David's goes. 3. how independent home care packages relate to the on-site care model at St David's. 4. understanding what staff are expected to provide to residents”.[23]I interpose that it was plain from this early stage that the whole process was organised so as effectively to identify the needs and requirements of the tenants, all of whom were elderly and disabled. That was to be done through a partnership between tenants, carers and social services staff. Workshops were arranged and there were “coffee morning” type meetings at St David’s. The purpose of these was to give tenants and their carers greater opportunity to be heard. Arrangements were made (although these did not always work as well as they should have done) for the minutes of the project group meetings to be kept at St David's so that they might easily be reviewed by tenants there.[24]All tenants were offered a full individual assessment of their needs, as were their carers. Many took advantage of that offer. Those who wished to have a greater level of support than was likely to be provided at St David’s were invited to apply to move to Downlands Court where the level of provision was to be much higher for those in greater need(see my earlier observations). All those who requested a move to Downlands Court were transferred there. The defendant was alive to the need to, and did in fact, respond to the assessments of need, and to the requests for greater provision than was envisaged at St David’s.[25]It is clear from the minutes that Mr Atkins wanted to achieve a more equitable use of funds across Adult Social Care. He said in the November meeting of the Project group that he would like funds targeted to those in need across all sites for which the Council was responsible, and not just St David's. This was a powerful countervailing factor against the retention of the then current level of provision.[26]Concerns were raised by, and on behalf of, the tenants who wished to remain about the impact upon them of a reduced level of service. In January 2009 Mr Atkins observed "that while [he understood] these concerns, it will never be possible to provide 100% safety to all residents at all times. Every risk cannot be catered for. The group needs to be looking at how the level of risk will change depending on what changes are made to current service provisions."[27]Consideration was given at a workshop of three key themes:(1) What sort of needs are there at St David's? What events occur that require an immediate response?(2) How are these needs currently managed?(3) How else could we manage these needs? Ideally the group will come up with a few possibilities which they can take to the residents to see if an agreement can be made.[28]There was an underlying assumption that the status quo would not continue. A note of a workshop which took place at St David's on 13 February 2009 reads (see paragraph 5) under the heading "Responding to Needs and Concerns (Options for a Future Service Model)" the Chair said:
"options for the future at St David's could be set along a spectrum. However 2 options are not up for consideration - (1) the removal of any scheme manager/support presence; (2) the staffing arrangements remaining as they are."
[29]It was explained that the St David's scheme cost three times per person more than the County average for a sheltered scheme. "As there are few tenants with high levels of need, these figures cannot be justified and it is important to make changes. The group discussed possibilities in terms of staffing arrangements and scheme options."[30]Mr Hutchings argued that that minute (which he had not previously seen) demonstrated that the consultation was not a proper consultation because the retention of the warden was not an option. I do not accept that submission; there was no requirement that the status quo should be the starting point. What took place was a wholesale reassessment (see below).[31]When an options paper was produced in 2009 Mr Atkins observed that "over a year ago it was recognised that the current model of service provided could not continue and needed to be matched to the needs of those on the scheme". One of the options given detailed consideration was to convert St David's to an extra care scheme. The project group accepted that this was not a realistic option given the very significant (and therefore prohibitive) cost of rebuilding at St David's.[32]The council knew that a number of tenants and carers were very concerned about the removal of overnight care and their contributions are on occasions prefaced with remarks which suggest that they know there was no option, but they were not prepared to support it. I note, in particular, at 3.12 that the group were informed that the suggestion that overnight staff might be removed was causing widespread distress to relatives. Arrangements were made to ensure such matters were properly communicated.[33]The evidence shows that ultimately four different types of care models were considered and a recommendation made for the reduced provision I have already described.[34]I set out Mr Atkins’ report in full:
"Financial Appraisal 1.1 The new service model will achieve savings as a result of ending the Directly Provided Services (DPS) on-site staff team that currently provides support to tenants. The savings will be approximately £130,000 per year. The current funding arrangements involve Supporting People (SP), Lewes District Council and Adult Social Care (ASC) as detailed at Appendix 1. A saving of approximately £40,000 should be achieved from the ASC budget. 1.2 The current SP funding into St David's Court is approximately three times higher than comparable sheltered housing schemes. The revised service model provides an opportunity to reallocate funding more equitably. 1.3 It is possible that small increases in packages of care purchased from the independent sector may result in the future, however, significant reductions in funding will be achieved as several tenants will move to the Downlands Court extra care scheme, with their care [to] be delivered through the on-site care and support contract. 2 Key issues - background 2.1 St David's Court is a 35 unit sheltered housing scheme located in Peacehaven and managed by Lewes District Council. Most of the tenants are older people. The model of care has been a hybrid; more support than a sheltered scheme and less support than an extra care scheme. The scheme has operated in this way for approximately ten years. 2.2 The on-site team provides a 24 hour presence, funded primarily by SP, but Lewes District Council and ASC also contribute to these costs. The on-site team provide mainly 'housing related support' rather than care, although these distinctions have become blurred over the years. 2.3 Operations managers in the directly provided service and Assessment & Care Management have expressed concern over the service model over recent years. These concerns have been based on ASC funding care that is not its responsibility and the potential double funding of support, as in addition to the on-site team a number of individuals may also have home care provided by an independent company, funded by ASC. 2.4 Lewes District Council, SP and ASC agreed that the level of need at St David's was not significantly higher than many other sheltered schemes and that although tenants were generally very positive about the on-site team it was not sufficient justification to continue to fund this level of support. 2.5 A process of consultation on potential changes commenced early in 2008. The views of tenants, relatives and carers have been recognised through monthly meetings that included tenant and carer representatives, general meetings of tenants and carers. 2.6 Whilst there is still some concern, more from carers and relatives than tenants, there is acknowledgement that the changes being proposed are reasonable. 2.7 Several tenants have applied for and been allocated homes in Downlands Court which opened in the second week of September. This has significantly reduced the level of care needs and further reinforces the case for change. Downlands Court is an Extra Care Housing Scheme and provides a higher level of support than a sheltered scheme. 3. Conclusions 3.1 The overall level of need within this scheme does not merit an on-site team. 3.2 Most of those with higher levels of need or concerns about how their needs will be met in the future have opted to apply for and been offered accommodation at Downlands Court. 3.3 Though the process to date has been inclusive and has achieved a high level of cooperation, some tenants, carers or relatives have expressed concern as to how needs will be managed in the future. Additional telecare and the provision of an on-site manager, from Monday to Friday (funded by SP and LDC), plus individual home care services (funded by ASC), will provide sufficient support and care. 3.4 SP funding can [be] deployed more effectively in the future. 3.5 Staff have already been informed of the potential changes, which if agreed, will mean the implementation of the Council's Employment Stability Scheme for those affected."
[35]That report went to the lead member and he took the decision at a meeting on 12 October 2009.[36]It is accepted that there was no statutory duty to carry out a formal Disability Equality Impact Assessment when the defendant was carrying out its functions and none was carried out before the decision was taken. An Equality Impact assessment was carried out in April 2010, and whilst some criticisms can be made of it, it is an adequate Equality Impact Assessment. Mr Hutchings says, correctly, that this was done after the event and has no relevance to the decision-making process with which I am now concerned.

Submissions

[37]It is inescapable that nowhere in any of the contemporaneous documents is there any reference to the Disability Discrimination Act. It is not in dispute that specific reference to the Act is not essential. Nor is reference to the Act sufficient evidence, of itself, of compliance. The issue is one of substance: has the defendant complied with its obligations? In the course of attractive and cogent argument Mr Hutchings submits that the absence of any reference to the Act is powerful evidence that the council failed to adopt the “conscious approach and state of mind” required by the statute (see paragraph 91 of Brown).[38]Mr Patel submits that Mr Hutchings submissions are not grounded in reality. He reminds me that the due regard obligation should be considered in its proper context (see the passages in bold in paragraph 82 of Brown at paragraph 14 of this judgment)[39]I have reviewed in some considerable detail in the course of this judgment precisely what the council did before the final decision was taken. Mr Patel correctly submits that:-i) the tenants needs were comprehensively assessed (where this was desired) ii). the assessments were acted upon iii) Regard was had to the concerns expressed in the consultation process iv) The most vulnerable tenants were transferred, as requested, to a site with higher level provision v) Steps were taken to address the concerns of those who wished to remain, in the form of additional discussions, and extra training in the Telecare system (the remote provider system) vi) It was accepted that some small packages of additional care may be required as a result of the new system.[40]I have endeavoured to identify what else the council should (or even could) have done in order to discharge its due regard obligation. What is required, Mr Hutchings argues, is a balancing exercise between the stated aims of promoting equality of opportunity, taking into account disabled persons disabilities and the countervailing factors (here, the need to promote a more equitable use of limited resources, and to save money). As to that submission I am quite satisfied on the evidence that this is exactly what took place. It is inescapable that the decision that there was no longer a need (rather than a desire) for an on site team was properly taken after a full assessment of the overall level of need. The minutes show that the impact on tenants was considered, including their continuing concerns which in my view are obvious in any event.[41]Mr Hutchings further submits that there should have been an express recognition of the adverse impact upon disabled people of the new system and an acknowledgment that countervailing factors have prevailed. But in reality the impact was recognised, steps were taken to mitigate it and the economic arguments were clearly articulated.[42]Mr Hutchings then says that even if the process of consultation discussion and assessment might be said to demonstrate compliance with the due regard obligation at officer level, the ultimate decision-maker, Councillor Bentley, was not able to discharge the Council's due regard obligation because Mr Atkins’ report did not accurately reflect the process that preceded it.[43]In particular, Mr Hutchings submits that the information was defective in that the tenants’ reservations were dealt with almost dismissively. He goes further and submits that the report deliberately downplayed the impact upon the residents of the changes.[44]In my view that description goes too far. It is fair to say that the report does not emphasise the adverse impact, but in my judgment it accurately sets out the impact albeit in rather brief terms. As I have observed on a number of occasions already, the impact is frankly plain and obvious. A remote service cannot be as good as an on-site service, but that does not mean that an on-site service is needed. The tenants' concerns are, in my judgment, adequately identified in the report so that the councillor was able to discharge the council’s due regard obligation and take his decision with appropriate information.[45]I am quite satisfied that, notwithstanding the absence of any reference to the Disability Discrimination Act, the Council had proper regard to all the goals set out in paragraphs (a) to (f) of section 49(A)(1) in the context of this exercise. Accordingly this claim for judicial review fails.[46]Before leaving this case, I observe (as have several judges in this court before me) that it is most unhelpful in a case of this sort that a council should fail to refer, in any of its documents, to the due regard obligations under the Act. In my judgment it is that failure which led almost inevitably to this litigation. Whilst reference to the statute should not be a mantra or a tick box exercise, the absence of any reference to it leaves the Council open to reasonable challenges which waste public money in litigation which is likely to fail. In addition some of the minutes of the meetings, which were of great importance, were not apparently disclosed until the hearing was under way.[47]I propose, subject to any change, that the matter should come back before me so that an order might be made on that date and any consequential directions can be made.