“Crawford Avenue to continue to offer day care short breaks for a minimum of seven hours per month to [AP]. After school care to be offered one day per week. This service may transferred to Clement Close. Option of direct payments.”
“The critical question in this case however is at what stage or stages the prescribed tests may be applied or – importantly – re-applied. Here the Rules and the Act provide most of the answers. Regardless of whether it involves repetition of arguments on promptness already considered at the leave stage, undue delay is placed by section 31(6)(b) on the agenda at the substantive hearing. On this short ground it seems to us that, notwithstanding Keene LJ’s finding of promptness, the related question of undue delay lay within Turner J’s jurisdiction at the substantive hearing. … But it does not follow, in our judgment, that the judge at the substantive hearing should proceed as if the issue had never previously arisen in the case, at least where it has been properly argued out between the parties at the leave stage. It is necessary to place beside Simon Brown J’s example of a full Divisional Court being told that it is bound by a single judge’s view of promptness the equally undesirable – and today more likely – situation of one judge of the Administrative Court effectively acting as a Court of Appeal from another, or (as happened here) deciding an issue without reference to a fellow judge’s earlier decision inter partes on substantially the same question and upon the same materials. While ultimately it is a matter for the judge hearing the substantive application, we consider that the appropriate course in a situation such as arose both in (RSPB) and before Turner J is that the Respondent should be permitted to re-canvass, by way of undue delay, an issue of promptness which has been decided at the leave stage in the Applicant’s favour only (i) if the judge hearing the initial application has expressly so indicated, (ii) if new and relevant material is introduced on this substantive hearing, (iii) if, exceptionally, the issues as they have developed at the full hearing put a different aspect on the question of promptness or (iv) if the first judge has plainly overlooked some relevant matter or otherwise reached a decision per incuriam. This is today no more than practical case management under the Civil Procedure Rules, in particularCPR 3.1 (2)(k) which permits the court to exclude an issue from consideration but more generally underCPR 1.4 (2)(c) and the overriding objectives set out inCPR 1.1 . It also gives effect to the principle of judicial comity at first instance spelt out by Robert Goff LJ in R v Greater Manchester Coroner ex parte TAL[1985] QB 67 , 81A-C. The second judge, in addition, must have in mind the need to prevent circumvention ofCPR 54.13 which provides: “Neither the defendant nor any other person served with the Claim Form may apply to set aside an order giving permission to proceed. (Paragraph 34).”
“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. 105. It is, however, unnecessary to say more generally about the timing of those decisions in view of the special circumstances of this case, namely the impact of both the promise of a home for life issue and the unlawfulness of the eligibility criteria on the assessment and placement issues. 106. If, as we hold, the promise of a home for life at Mardon House rendered the decision to close it at this stage an abuse of power, there is no need to address the question of whether a suitable alternative placement could be found offering conditions similar to those available at Mardon House. 107. Further, if, as we hold, the eligibility criteria were in themselves unlawful, it follows that those assessments of Miss Coughlan (and the other patients) which have been made on the basis of the criteria cannot fairly be treated as assessments for the purpose of making a decision, whether it be before closure, as she contended it should be, or after closure, as the Authority contended it should be, to discharge Miss Coughlan from Mardon House or to place her elsewhere.”
“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”
“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.”
“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 decisions 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.”
“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 KB 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.” “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.”
“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 case to make assessment 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 placement to be taken before its decision to close can be lawfully made.”
“Did the Secretary of State ask himself the right question and take reasonable step to acquaint himself with the relevant information to enable him to answer it correctly?”