D, R (On the Application Of) v Worcestershire County Council [2013] EWHC 2490 (Admin)

[2013] EWHC 2490 (Admin)

Case No CO/44/2013

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

ADMINISTRATIVE COURT IN BIRMINGHAM

Venue Birmingham Civil Justice Centre

Priory Courts

33 Bull Street

Venue Birmingham

Date 09/08/13

Before

MR JUSTICE HICKINBOTTOM

Between

THE QUEENClaimant

on the application of DClaimant

WORCESTERSHIRE COUNTY COUNCILDefendant

Ian Wise QC and Stephen Broach (instructed by Irwin Mitchell LLP) for Claimant

Andrew Sharland (instructed by the Head of Legal & Democratic Services,

Worcestershire County Council) for Defendant

Hearing Hearing dates: 18-19 July 2013

Further written submissions: 22, 24 and 29 July 2013

Judgment

Introduction

[1]These are times of considerable financial stringency, challenging for both those who rely upon public services and those who provide them. This is another claim that concerns the consequences of reduced public funding of services, this time adult community care in Worcestershire.

[2]The provider of these services is the Defendant authority (“the Council”). In 2010-11, the Council’s budget was £306m of which the amount for adult care was £116.4m. In December 2010, the Coalition Government announced the Local Government Settlement, which set limits on the central government grant for local authorities and local authority spending. Under the Settlement, the Council was required to make likely savings of £60m-70m over four years. Current estimates are somewhat higher, identifying a need to save at least £20m per year, every year, to 2015-16. Like other authorities, the Council took the inevitable view that the required level of overall savings could not possibly be met without a contribution from the adult social care budget.

[3]On 8 November 2012, it adopted a “Policy for Determining the Usual Maximum Expenditure for Non-Residential Care Packages” (“the Policy”), under which, absent exceptional circumstances, the maximum weekly expenditure on care in the community for an adult under 65 years of age will be “no more than the net weekly cost… of a care home placement that could be commissioned to meet the individual’s assessed eligible needs”. It was a policy which the Council had in substance applied to adults over 65 years of age since 2008.

[4]The Claimant, D, was born on 26 April 1996, and so will turn 18 next year. He has a number of needs, deriving from medical conditions which include learning disability, attention deficit hyperactivity disorder, auditory processing difficulties and epilepsy. His parents are separated. His mother is his primary carer, and his litigation friend in this claim. She is concerned to ensure that D has appropriate care as he moves into adulthood. She considers he will need a very high level of care, 24 hours per day; and she has doubts that the arrangements under the Council’s new adult community care policy will properly address his needs. Those concerns have been compounded because D’s mother has recently been diagnosed as having cancer, which has, she says: “… reinforced how important it is for me to ensure that appropriate arrangements are made for [D’s] future and transition to adulthood in the event that anything were to happen to me.” (20 December 2012 Statement, paragraph 20). In the circumstances, that is entirely understandable.

[5]Those concerns are about the substance of the Policy. However, in this claim, although D through his mother has reserved his rights, no challenge is made to that. Two grounds of challenge are advanced, both procedural in nature, namely that the Council, in adopting the Policy,(i) used a consultation process that was materially defective, notably in that it failed to provide consultees with sufficient information to enable them to make a sufficiently informed response to the proposal; and

(ii) failed to comply with its public sector equality duty (“PSED”) under section 149 of the Equality Act 2010.

[6]The Council denies that it acted unlawfully in either respect.

[7]The Council also opposes the claim on the basis that the Claimant has no locus to bring it. First, it submits that it is a legal abuse for this claim to be brought in the Claimant’s name, when the true complainant is not D but his mother. There is no evidence at all from D himself. It is his mother who has expressed fears that the Policy will lead to those who benefit from adult care services – including, from next year, D himself – being put to a choice of receiving less than is required to meet his assessed eligible needs at home, and going into residential care. It is she who, in this claim, complains that the consultation process was unlawful, and it is she who says she wishes there to be further consultation at which she can make her views known before a new decision on the Policy is taken by the Council.

[8]Second, the claim is said to be an abuse of process because D is not subject to the Policy yet, and he will or may never be. The Council accepts that D is a disabled person; but it does not accept that his needs as an adult will be as great as his mother suggests. In support of that contention, it relies on(i) the fact that D’s reading age and comprehension age has been assessed at not much lower than they should be for his chronological age;

(ii) his educational needs have been met in mainstream education without a Statement of Special Educational Needs; and

(iii) a recent core assessment of D’s needs by social workers in the Council’s Young Adults Team and Children with Disabilities Team. That assessment was made in the context of entitlement under the Children Act, but, on the basis of its factual findings, the Team Manager of the Young Adults Team (Jonathan Monk) also assessed D’s needs as an adult next year under the relevant eligibility framework. He concluded that none of his needs is sufficiently severe to be eligible for assistance (i.e. none of the needs falls within the critical or substantial categories, in his opinion none being higher than low level: see paragraph 13 below), so that, in Mr Monk’s professional view: “It is clear from the core assessment that [D] is very unlikely to be eligible for adult social care services at all because he does not have substantial or critical needs as defined in the… guidance…. It is clear beyond doubt that [D] would certainly not require a level of support that would engage the Policy in any way.” (27 June 2013 Statement, paragraph 11). D’s mother maintains that D will require very substantial care support as an adult; and it is submitted by Mr Wise QC on D’s behalf that there is at least a risk – his mother maintains, a likelihood – that he will fall within the scope of, and be affected by, the Policy when he turns 18 next year. However, that view is unsupported by any expert or professional evidence; and, in any event, the Council relies upon the principle that, in judicial review proceedings, where there is a factual dispute, the court generally accepts the evidence of the defendant. Because of the uncertainty created by this current challenge, the Policy has not yet been implemented; but the Council points out that no one who, subject to implementation, would be the subject of the Policy has sought to challenge it, or, even more pertinently, the processes by which it was adopted. Those who have made statements in support of the Claimant in this claim, whilst, like D’s mother, being concerned about the substance of the Policy, make no criticisms of the processes by which it was adopted.

[9]There seems to me to be, at the very least, some room for argument in respect of these procedural matters raised by the Council. However, the debate before me, properly, focused on the merits of the claim; and it is those merits with which I will deal first.

[10]With regard to those merits: i) On 14 February 2013, Males J refused permission to proceed. Kenneth Parker J granted permission, and ordered the hearing to be expedited, at a hearing on 16 May 2013. At the substantive hearing, Ian Wise QC and Stephen Broach appeared for the Claimant; and Andrew Sharland for the Defendant; and I am certainly grateful for their helpful submissions. ii) Mr Sharland objected to(a) statements of Lucy Series (an author of the WeareSpartacus report, “Past Caring”, referred to below: see paragraph 41), Emma Harrison (Assistant Director of External Relations of Mencap) and the Wednesday Comet Group (which describes itself as “a self-advocacy group for people with disabilities”) on the basis that their evidence is, variously, irrelevant, inadmissible and bad on grounds of having failed to comply with the Civil Procedure Rules; and

(b) further evidence and submissions made by Mr Wise after the hearing, with regard to the Council’s policy for ascertaining an individual community care service user’s personal budget prior to adoption of the Policy. However, although I have ignored purely opinion evidence in the statements, Mr Sharland has responded to this material; and I have considered it appropriate to take into account, in the Claimant’s favour, all of the other material.

The Legal Background

[11]Section 29 of the National Assistance Act 1948 imposes a duty on local authorities to make arrangements for promoting the welfare of individuals who are substantially and permanently handicapped through illness or disability. Section 2(1)(a) of the Chronically Sick and Disabled Persons Act 1970 extends that obligation to “the provision of practical assistance for that person in his home”, where that is necessary to meet the needs of that person. In support of the section 29 obligation, in respect of anyone in its area who appears to be in need of community services, section 47 of the National Health Service and Community Care Act 1990 requires a local authority to perform “an assessment of needs”, and then to decide “having regard to the results of that assessment… whether his needs call for the provision by them of any such services”. In R (McDonald) v Royal London Borough of Kensington and Chelsea

[2010] EWCA Civ 1109

at [32], Rix LJ helpfully summarised the effect of these provisions as follows:

“Thus these Acts require a local authority to assess needs, then decide by reference to such an assessment whether the provision of relevant services is called for, and then to make arrangements for the provision of services which have been decided upon as being called for.”

[12]Under section 57 of the Health Care and Social Act 2001, an authority may or must, depending on the circumstances, make “direct payments” to an individual, rather than providing or securing the actual required services. By section 57(4)(a), such payments are to be paid at a rate which the authority estimates to be “equivalent to the reasonable cost of securing the provision of the service involved”.

[13]Section 7(1) of the Local Authority Social Services Act 1970 enables the Secretary of State for Health to issue guidance to local authorities, which authorities are bound to follow unless they can provide clear and adequate reasons for not doing so (R v London Borough of Islington ex parte Rixon (1997-98) 1 CCLR 119). In 2003, the Secretary of State issued guidance with regard to the statutory provisions for care in the community, “Fair Access to Care Services: Guidance on eligibility criteria for adult care” (“FACS”), which introduced four categories of need (critical, substantial, moderate and low), identified by various criteria marking severity. In December 2007, FACS was supplemented by another document, “Putting People First: A shared vision and commitment to the transformation of Adult Social Care” (“Putting People First”). The new guidance promoted individual budgets (designed to give individuals control over, and the ability to make decisions about, the form of care they receive) and direct payments. In February 2010, revised guidance was issued, “Prioritising Need in the Context of Putting People First: A whole system approach to eligibility for social care – Guidance on Eligibility Criteria for Adult Social Care” (“Prioritising Need”), which superseded FACS but retained the four categories of needs.

[14]This guidance incorporates, amongst others, the following policy strands: i) Demand for social care increasing, and public funding for such care being limited, available resources should be allocated according to individual need in a way that is as fair and transparent as possible, transparency being “the first principle underpinning [resource allocation] systems” (paragraphs 3 and 132). ii) Personalised support through the ability to exercise choice and control should be promoted, against a backdrop of strong and supportive communities (paragraph 4). Such “personalised programmes” require, amongst other things,(a) investment in helping people live at home independently and preventing them from needing social care support for as long as possible (paragraph 5);

(b) investment in giving people a clear understanding of how much is to be spent on their care and support and allowing them to choose how they would like this funding to be used to suit their needs and preferences (also paragraph 5); and

(c) once eligibility is confirmed, working with the relevant individual to identify the outcomes that the individual wishes to achieve, to identify unmet needs which are preventing the outcomes he or she wishes to achieve, and to develop a plan for his or her care and support (paragraphs 47 and 119). The development of such a plan involves allowing individuals to make informed decisions and ensuring that choices made by individuals who use services and their carers are respected and supported (paragraph 122). Such a support plan should be focused on outcomes, not specific services (paragraph 124). iii) All service users in a particular local authority area with similar needs should receive support packages that are capable of achieving a broadly similar quality of outcome, even though the particular forms of help offered may differ and be tailored to the individuals concerned (paragraph 125).

[15]So far as people with learning disabilities are concerned, these general policies are supported in further guidance, issued by the Secretary of State for Health on 19 January 2009, “Valuing People Now: a new three-year strategy for learning disabilities”, which, in line with the vision of Putting People First, again generally emphasises the importance of personalised programmes, choice and control for those with learning difficulties. Part II of Chapter 3 (paragraphs 3.18-3.28), under the cross heading “A home of your own”, deals with importance of all people with learning disabilities having the opportunities to make an informed choice about where, and with whom, they live. One key recommended action for local authorities is (paragraph 3.28):

“… to facilitate people’s access to housing of their choice including: • more people receiving personal budgets and Direct Payments to increase their choice and control over where they live and with whom; • local care managers to have increased focus on home ownership and assured tenancies as a model for housing and support; • through person-centred planning, work with people still living with families to establish if that is the person’s preferred option and to instigate plans accordingly.” • more people receiving personal budgets and Direct Payments to increase their choice and control over where they live and with whom; • local care managers to have increased focus on home ownership and assured tenancies as a model for housing and support; • through person-centred planning, work with people still living with families to establish if that is the person’s preferred option and to instigate plans accordingly.”

[16]This guidance to an extent reflects the rights of disabled people and the obligations of the state towards them as set out in the United Nations Convention on the Rights of Persons with Disabilities. The Convention has not been incorporated into domestic law by the United Kingdom and so is not directly applicable; but, in article 19, it declares the following norms in relation to “Living independently and being included in the community”:

“States Parties to the present Convention recognise the equal rights of all persons with disabilities to live in the community, with choices equal to others, and shall take effective and appropriate measures to facilitate full enjoyment by persons with disabilities of this right and their full inclusion and participation in the community, including by ensuring that: (a) Persons with disabilities have the opportunity to choose their place of residence and where and with whom they live on an equal basis with others and are not obliged to live in particular living arrangements; (b) Persons with disabilities have access to a range of in-home residential and other community support services, including personal assistance necessary to support living and inclusion in the community, and to prevent isolation or segregation from the community; (c) Community services and facilities for the general population are available on an equal basis to persons with disabilities and are responsive to their needs.”

[17]The guidance in Putting People First and Prioritising Need therefore requires, not only the identification of an individual’s eligible needs, but, in the light of policies that favour the individual having control and choice over how those needs might be met, an assessment of the services that might be required to meet those needs and, usually, the assessment of the costs of those services which can form a personal budget upon which direct payments to the individual can be made. Given that the individual then has discretion as to exactly how the money paid is in fact spent, there also needs to be a plan as to the exact services that the individual will have, agreed with the local authority, to ensure that the individual’s eligible needs are being met and the individual will be properly safe. That all clearly requires, in a particular case, a great deal of cooperation and discussion between the relevant local authority and the individual and his or her carers. Furthermore, it requires from the relevant local authority, in respect of each individual service user, a sophisticated and often challenging exercise, balancing all material factors.

[18]I was also referred to a number of cases, particularly in relation to the extent to which available resources are a material consideration – i.e. the extent to which resources must or can be taken into account in complying with these obligations – notably, in addition to McDonald, R v Gloucestershire County Council ex parte Mahfood

(1997) 1 CCLR 7

, R v Gloucestershire County Council ex parte Barry

[1997] AC 584

, Savva v Royal London Borough of Kensington and Chelsea

[2010] EWCA Civ 1209

, R (JG and MB) v Lancashire County Council

[2011] EWHC 2295 (Admin)

;

[2012] 15 CCLR 167

and R (KM) v Cambridgeshire County Council

[2012] UKSC 23

;

[2012] PTSR 1189

[19]For the purposes of this claim, I need not quote extensively from either the guidance or these authorities, which give rise to the following propositions. i) In complying with these statutory obligations, an authority may take into account the resources at its disposal, the law recognising that the public purse is not bottomless. As indicated in Prioritising Need (paragraph 44) and in the cases, an authority may therefore take available resources into account in setting criteria for eligibility for assistance. It has been put thus: “Cost is of more or less significance depending on whether the authority has more or less money”, so that, for example, “depending upon the authority’s financial position,… the eligibility criteria, setting out the degree of disability which must exist before help will be provided… may properly be more or less stringent” (Barry at page 605E per Lord Nicholls). Most authorities – 86% of them – now restrict those eligible for assistance to those with critical or substantial needs, and exclude those with only moderate or low needs as ineligible for support. ii) However, once an authority has decided that an individual has eligible needs, it has an absolute duty to make arrangements and provide the individual with the services or the personal budget with which to meet the assessed needs. iii) In choosing the services that should be provided, an authority has a very wide discretion, as long as the identified needs are met. iv) In choosing between different ways of meeting the assessed needs, an authority is bound to take into account a service user’s preferences as to outcomes and ways in which his assessed eligible needs might be met. They are a material consideration. v) However, in choosing between different ways of meeting the assessed needs, the authority is also again entitled to have regard to resources. At this stage too, cost is of more or less significance depending on whether the authority has more or less money. So long as the authority meets the particular need, and gives proper regard to other policy obligations, it is always open to it to meet that need by the provision of a cheaper service (see KM at [7] per Lord Wilson JSC, with whom the majority of the Supreme Court agreed).

The Factual Background

[20]By the nature of the challenge in this claim, it is necessary to consider the history of the Policy in some detail.

[21]Following(i) the publication of Putting People First in 2007,

(ii) the Coalition Government’s confirmation that they proposed to proceed with the move towards more personalised budgets and

(iii) due consultation, on 1 July 2010 the Council’s Cabinet adopted a new policy, “Personalisation Reform and Efficiencies in Adult Social Care”. This acknowledged the twin objectives of Putting People First, namely (i) to give people more choice and control over the way they receive adult social care services, and (ii) to achieve efficiency based on the premise that individuals could make more innovative, creative and cost-effective arrangements to meet their own assessed needs.

[22]The Council’s policy was designed round a Resource Allocation System (“RAS”), which was explained, helpfully and succinctly, by Lord Wilson in KM, particularly at [25]-[26]:

“25. Under a RAS the local authority ascribes a number of points, within a prescribed band, to each of the eligible needs in the particular case. It then calculates the total points and consults a table within the RAS which ascribes an annual sum to the total points…. Crucial to a RAS is a realistic nexus both between the needs and points and between points and costs…. 26. It follows that the sum identified by application of a RAS is not the product of a direct, individual costing of each of the requisite services in the particular case. For that reason the use of a RAS is only the first step in the local authority’s search for the answer to the question, [What is the reasonable cost of securing provision of the services identified as being necessary for the authority to make arrangements for?]….”

[23]For adults under age 65, the Council used such a “budget calculator to allocate points to outcome areas depending on the level of eligible support needed” (the Council’s Director of Adult and Community Services Report for the 1 July 2010 Council Cabinet meeting, paragraph 4). However, as that report indicated and in line with Lord Wilson’s description, in the Council’s case: “The RAS simply generates an indicative amount that is subject to further adjustment following development of the support plan. It is a means to the end, i.e. to meet eligible needs. (paragraph 28). “The RAS generates an indicative budget of the likely amount that will be made available to meet assessed needs. This is finalised once the Service User’s support plan is agreed. The indicative budget may be increased where it is evidence that the support cannot be purchased or brokered within the indicative amount. Equally the indicative amount budget may be reduced where it is evident that the support can be purchased or brokered at a lower amount.” (paragraph 9).

[24]In line with most authorities who adopted a RAS, by 2012, the Council in fact used a starting point the figure derived from the RAS exercise less 10%, as it considered that would still be capable of meeting assessed eligible needs. The report concluded: “The reduced RAS together with the established route to appeal where applicable has ensured that all service users’ needs have been met, but in a leaner and more efficient way” (paragraph 16).

[25]Driven by the increasingly pressing need to make savings and thus meet its reduced budget following the December 2010 Local Government Settlement, and as part of an on-going review of all aspects of the Council’s budget, at its meeting on 19 April 2012, the Council Cabinet considered a new proposed policy for non-residential care packages for adults under the age of 65 (“the draft Policy”). It had already considered the possibility of reducing the eligibility criteria of critical and substantial needs to critical needs only, which it had rejected because of the impact it considered that would likely have on vulnerable disabled adults in the area. It now turned its attention to how the costs of providing assistance for assessed eligible critical and substantial needs might be reduced for those under the age of 65.

[26]In respect of care for those aged over 65, the report for the meeting by the relevant Council Officer (again, the Director of Adult and Community Services) explained:

“9. For a number of years the [Council] has considered the cost of meeting a person’s eligible assessed non-residential need in the community against a cost of meeting those needs in a residential or nursing home, for those aged over 65. 10. This approach takes the Council’s current banding rates for nursing and residential care, minus the usual personal contribution of £100 per week, and will not normally fund community packages above this level, with a discretionary leeway for exceptional circumstances.”

[27]The draft Policy proposed to reduce the costs of home care to those aged under 65 as follows:

“… [The Council] proposes to establish a usual maximum expenditure, which will represent the expected maximum weekly expenditure (or ‘indicative allocation of Personal Budget’) on a package of care that would meet assessed agreed eligible need in the community/someone’s home, if that need could be met through a care home placement. In circumstances in which a support plan to meet need and manage risk in the person’s home exceeds the usual maximum expenditure, alternative care arrangements would be considered. This might include offering different ways of meeting need from the service user’s first choice….”

[28]The terminology “indicative allocation of Personal Budget” is redolent of “the indicative budget” in the then-current scheme (see paragraph 23 above). One crucial difference in the draft Policy from the earlier scheme, however, was that this indicative figure was assessed not merely by reference to the RAS figure less 10%, but by comparison with the costs of residential care for that individual. As the passage quoted suggests, that would result in some individual service users who would have had their preferred care package under the old scheme being unable to all the same preferred elements under the scheme proposed.

[29]In line with national policies (see paragraphs 13-17 above), the Council had a number of specific policies, including “Personal Assessment Policy” and “Risk Enablement Policy”, actively to encourage increasing the independence of disabled people, including “by [their] being fully involved in mainstream society…” (Risk Enablement Policy, page 4). One of the general principles behind this guidance was to “enable and support people to make informed choices and support people to manage risks” (page 7). It is the Council’s strategic intention to develop services so that fewer people will be living in residential care (Denise Anne Clarke 25 June 2013 Statement, paragraph 46: Ms Clarke is the Council’s Interim Head of Adult Care).

[30]The draft Policy acknowledged the importance of the policy imperatives of choice and independence of living for disabled adults, in its opening “Policy Statement”:

“[The Council] is committed to supporting people to live full and independent lives within their local communities. Where people are eligible for social care support the aim is to support them in a way that reflects their preferences and the outcomes they wish to achieve. However, this needs to be balanced against [the Council’s] responsibilities to make best use of available resources. [The Council] has developed this policy to apply to all adult social care support users including those receiving direct payments so that decision-making in individual cases is fair, equitable and transparent and so that resources are fairly distributed across all who are eligible for support.”

[31]The draft Policy was accompanied by an Equality Impact Assessment (“EIA”) Screening Report, which, whilst indicating that the policy aimed to support people in a way to reflect their preferences and the outcomes they wished to achieve, also noted that these had to be balanced against the Council’s responsibilities to make best use of available resources. It noted that the policy involved a significant reduction of resources in that it “may in some cases reduce the cost of care and support packages which are provided by the Council for people who wish to live independently” (paragraph 2.2); and recommended a full EIA. In the 19 April 2012 meeting minutes (at page 13), it is recorded that the Cabinet was mindful of its PSED, and that a full EIA would take place after consultation and its results taken into account in any final decision.

[32]The minutes of that meeting recorded the following, in terms of the presentation made to the Cabinet: “The draft policy set out a consistent approach for determining the appropriate and equitable allocation of resources to those people who used social care services funded by the [Council]. Application of the draft policy may result in services being delivered that would not be people’s first choice about the way they received their care. It strived, however, to balance available resources and meet assessed eligible needs in a way that was transparent, equitable and enabled the best use of resources. It also sought to ensure that identified eligible needs would continue to be met. … For a number of years the Council had considered the cost of meeting a person’s eligible assessed non-residential need in a residential or nursing home, for those aged over 65. Applying a similar approach to younger adults was more challenging as rates for nursing and residential home placements tended to be individually negotiated whereas for older people these were set by banding rates. In the interests of equity, however, it was important to adopt a consistent approach to all service users. The draft policy set out an approach for all people eligible to receive funded social care support from the Council. For younger adults the current average costs of meeting such nursing and residential care needs would be used as the benchmark against which the potential cost of community-based packages of care could be measured. This average would be applied as the starting point for each service user to check whether individual needs could be met within this amount. This draft policy, if approved, would be applied to all new service users and those currently receiving community-based services if their needs changed. It would only apply where there was an alternative cheaper method of meeting their needs than through non-residential care. Applying the policy to new service users would potentially save around £200,000 in a full year. This saving had been estimated based on the numbers of new and increasing needs and by anticipating an 11% reduction in community based costs for half of the new service users. This would be subject to the Cabinet approving the policy having regard to the outcomes of consultation, detailed work to assess people’s needs and sufficient market capacity to meet needs in more cost effective settings. The draft policy allowed for exceptions to be made to the usual maximum where exceptional individual circumstances arose. The Council wished to consult widely with stakeholders on whether the draft policy had the balance right between meeting assessed eligible need in an equitable way regardless of age and its duty to make the best use of its available resources, particularly at the current time when public funds were reducing and adult social care needs were increasing…”.

[33]In the ensuing discussion at the meeting, the following points are also recorded: “Where people were eligible for social care support the aim was to support them in a way that reflected their preferences. However, in some circumstances people’s choice about the package of care they would like to receive would be disproportionately expensive compared with the cost of meeting their assessed eligible needs in an alternative setting.” (paragraph (f)). “It was emphasised that an individual’s eligible assessed needs would continue to be met if the policy were to be adopted, even if in not quite the way the service user would prefer. If the preferred package of support cost more than the alternative which could meet the individual’s eligible needs (such as suitable residential care), alternative ways of meeting care needs would be proposed, e.g. by supplementing the Council funds through the individual’s own private resources, or through funding from charities etc should the individual prefer not to take up the original proposal. The proposed policy would not, of course, be applied if residential care would not be suitable.” (paragraph (c)). “There was a balance to be struck between the duty to meet identified eligible community care needs by providing appropriate services and making best use of the limited resources available to the Council, particularly when those funds were decreasing and eligible needs increasing. If those needs could be met in a more economical way, then the Council should consider that, as individual packages of care could be very expensive. However, it was important to recognise that the proposals were not just a means of achieving savings but they were about providing a fair, equitable and consistent approach to the allocation of resources for all.” (paragraph (g)).

[34]That all much reflects the report of the Director of Adult and Community Services which was circulated to members prior to the meeting. However, that paper (at paragraph 19) elucidated the proposed savings, and how they were calculated:

“This [potential saving of £200,000 per year] has been estimated based on the numbers of new and increasing needs. During 2011-12 there were 49 new learning disabilities and physical disabilities service users, with a further 16 people whose needs had increased during the year. The savings are estimated by anticipating an 11% reduction in community based costs for half of the new service users. 11% has been identified as an achievable percentage reduction by analysis of the difference between current community-based service and the average residential and nursing costs for current service users. This has been assumed for only half of cases based on our knowledge of the complexity of need of service users and the challenge of meeting their assessed needs appropriately.”

[35]Importantly, the proposed policy was not to be retrospective; it was only to be applied to new under-65 applicants for social care, and those who already had such care but whose needs increased. Had the policy been in place in 2011-12, that would have been 65 individuals in total. In short, the expected savings from the policy were based on the premise that half the relevant service users would not be affected by the policy (e.g. because they would be in residential care anyway, or because their home care costs would be lower than residential costs in any event); and, in respect of the other 50%, an average 11% saving could be made on their care costs.

[36]Therefore, it is clear that, at this early stage, the Council Cabinet was well aware of its obligation to make arrangements to meet assessed eligible needs – and recognised the tension between its policy objectives of supporting disabled people to live full and independent lives within their local communities, with control and choice over their care package, on the one hand; and its obligation to constrain its expenditure of public money and remain within its budget, on the other. The draft Policy was an attempt to balance those objectives and that obligation, by trading off some degree of choice and control by service users for reduced public expenditure. There was also concern about the difference in approach which had existed between how service users aged over 65 were treated, compared with those who were under 65, the former being the subject of a policy that would likely give rise to lower payments (and, consequently, more restricted choice) for many.

[37]At the 19 April 2012 meeting, the Cabinet decided that the proposal should be put out to consultation, and the consultation period was fixed for 1 May to 1 August 2012. The consultation document confirmed the policy objectives in similar terms to the draft Policy itself (see paragraph 30 above); and it set out the principles upon which decision-making would be based under the policy, much in the same terms as these were described in the Cabinet meeting itself. It sought the views of service users, carers and stakeholders on the proposals generally, but in particular asked for comments on the following four questions:

“1. The proposals suggest that in order to continue to provide services for everyone eligible for services, limits need to be introduced – do you agree or disagree with this principle? 2. Do you agree that this policy should apply to everyone who uses adult social care services funded by [the Council]? 3. Do you agree that we should support people to use other, local and informal support networks to meet their needs? 4. Do you agree with the principle in these proposals that care packages could be supplemented by private means (where available) if the cost exceeds the proposed maximum expenditure threshold?”

For each question, there were tick-boxes for “Agree” and “Disagree”, and a further box for comments.

[38]In addition to the draft policy and the consultation document themselves, a number of other documents were made publicly available: a FAQ document (which was updated as the consultation exercise progressed), an Easy Read version of the policy and summary, case studies to demonstrate how the policy might work in practice, the Director’s Report and minutes from the 19 April 2012 Cabinet meeting and a document outlining how individual budgets and direct payments could support the proposed policy. These were placed on both the Governance Section and a discrete consultation portal part of the Council’s website, although the Director’s Report and minutes from the April meeting were not put on the latter until mid-July (see paragraph 42 below).

[39]There were twenty consultation events – seven open, and thirteen by invitation only, including one specifically for those with learning disabilities – attended by 295 individuals and representatives from organisations and consultative groups. The consultation was targeted at such representative groups. Meetings were held with the Mental Health Consultative Group, the Learning Disabilities Partnership Board, the Day Care Provider Forum, the Sensory Impairment Consultative Group, the Physical Disabilities Group, the Mental Health Network, the Domiciliary Care Providers’ Forum and the Care Consultative Group. In addition, there was widespread media coverage from April to July 2012.

[40]41 completed questionnaires were received. Perhaps unsurprisingly, the general response to the draft Policy was negative: none of the submissions received supported the proposals, and the response at the meetings was similar.

[41]On 12 July 2012, a group called “WeareSpartacus” lodged a response to the consultation, a report entitled “Past Caring” (“the Past Caring Report”), which was strongly critical of the proposal. WeareSpartacus is a group which lobbies and reports on various aspects of social care services and welfare reform affecting those who are disabled. The report suggested that the policy “could leave thousands of people with a shortfall and force them to move into residential care” (page 3). On the basis of an average local authority rate for a disabled person aged under 65 in an independent sector care home of £411 per week, the report calculated that the policy would affect any such person with a home care requirement of more than about 46 hours per week (page 4). The report summary was as follows (page 12):

“It seems to us that this consultation is flawed as it does not provide sufficient information for consultees to respond to on a range of important topics. There is no indication of the likely number of people that will be affected, or how – specifically – [the Council] intends to navigate these issues. We suggest it may lead to the ‘fettering’ of [the Council’s] discretion in how it discharges its community care duties, and are not reassured by vague assurances that it will depart from the policy in ‘exceptional circumstances’. Most significantly, the policy, once implemented, may result in high levels of unmet need and coercive institutionalisation – both of which bring serious undesirable social, legal and financial consequences. We suggest that the consultation itself is illegal, and that once implemented the policy may lead to further illegality.”

This report is significant because many of its criticisms are reflected in the grounds of claim, particularly that the Policy would result in “high levels of unmet need and coercive institutionalisation”.

[42]In mid-July, the Council put the Past Caring Report on its consultation portal, with its own 6-page response; and at the same time, it loaded onto the portal the Director’s Report for the 19 April 2012 meeting and the minutes of that meeting. The Council’s response to the Past Caring Report accepted that the policy was “complex and controversial”; but WeareSpartacus had, it said, misunderstood some of the principles underlying it. It said the policy “is not about forcing people into residential care; it is about reducing costs of community care to a comparable level with costs of residential care, and ensuring that people’s quality of life is maintained to the optimum” (page 1). It stressed that assessed eligible needs would continue to be met (page 2). It identified how many people were likely to be affected, based on the figures I have set out above (page 2); and emphasised that there was not absolute “cap”, an individual’s maximum being based on the costs of providing that individual care in a residential context (page 4). It also said that examples of “exceptional circumstances” were given for the policy as it applied to the over 65s, and those too would be uploaded on the consultation portal. At the same time, the Council held a further media briefing on the issues raised in the Past Caring Report.

[43]Having put the Past Caring Report and its reply onto the consultation website, the Council extended the period of consultation until 1 September 2012; although few further responses were in fact received in the additional month.

[44]At the beginning of the consultation period, an EIA Working Group was established, comprising the Council’s Equality and Diversity Manager (Ms Sandra Bannister) and other managers, and a representative from the Council’s Legal and Democratic Services Group. Its role was to oversee and contribute to the EIA, in the context of the consultation responses, and it met three times, in May, July and September 2012. At each meeting, it considered the requirements of the PSED, and in particular the need to advance equality of opportunity for disabled people (Sandra Bannister 26 June 2013 Statement, paragraph 13). The EIA was finalised and signed off on 24 September 2012, and was before the Cabinet when the final draft policy was put before it for approval. Of it, Ms Bannister said (Statement, paragraph 13): “Although the [EIA] provides limited detail of potential negative impact, it is clear, particularly in reading the entirety of the Director’s report for the November 2012 Cabinet meeting and associated documents, that a small number of individuals are likely to be adversely impacted by the Policy because it will result in them not receiving their first choice as to provision to meet their eligible needs…”.

[45]The Director of Adult and Community Services produced the final draft Policy on 26 September 2012, which went to the Cabinet’s meeting on 8 November 2012 for approval. The Cabinet also had a further Director’s Report, the full EIA, the consultation documentation (including the Past Caring Report and the Council’s response) and a report summarising the consultation responses.

[46]The report on the consultation analysed the responses received. Common themes raised included whether the market for care services would meet the challenge – it was accepted that there was further work to be done in relation to this – and issues regarding quality of life and choice for the individual. One issue that had been raised was whether people would be forced into residential care as a result of the policy, an issue that had of course been raised particularly in the Past Caring Report. It was specifically dealt with in the Director’s report for the meeting. He said (at paragraph 21), under the heading, “Consultation Feedback: Will people be forced into residential care?”:

“The cost of a residential home for the individual will only act as a benchmark for comparison with a community care package. Nobody will be forced to live in a residential home as a result of this policy, although some service users may feel it to be more appropriate to do so. It is important to be clear that there may be times when the Council cannot safely meet a person’s needs in the community and it may be that residential care is most appropriate to meet their assessed eligible needs. This decision, however, is based on a best interest assessment for the person concerned where they lack mental capacity.”

[47]The final policy opened with the same general policy statement as the draft presented to the April 2012 Cabinet meeting (see paragraph 30 above). In the section General Principles/Guidance, the final draft Policy said:

“[The Council’s] policy is to apply, subject to exceptional circumstances, a figure that represents the usual maximum expenditure for care packages in the community. The maximum weekly costs to [the Council] will be no more than the net weekly cost to [the Council] of a care home placement that could be commissioned to meet the individual’s assessed eligible needs. … This could mean that insufficient Council funds are available for a package of support preferred by the individual and an alternative will be proposed by the Council. The individual may wish to achieve their preferred method of support by supplementing the Council’s allocated resources through their own private resources, e.g. benefits received and personal assets but the Council must be satisfied that the final support plan meets need and manages risk appropriately. [The draft then refers to article 8 of the European Convention on Human Rights.] [The Council] will ensure that maximum independence and privacy is achieved for each individual within the financial limits of the resources available. Exceptional circumstances will be taken into account, e.g. the impact on a person who is in work or on an employment pathway; the impact on wider family if the person has parenting responsibilities; if a person is approaching end of life but not yet eligible for Continuing NHS Care. These are examples and not an exhaustive list of circumstances in which discretion would be used in the application of the policy. … Ultimately, however, [the Council] has to consider how the needs identified in the Personal Assessment could be met in a way which represents the most cost-effective use of resources.”

[48]The procedure for the application of the new Policy was set out, as follows:

“This policy will be applied when the assessment process is complete and when full costings of the plan preferred by the service user and of the alternative plan proposed by the Council are available. The potential for the promotion of independence and the use of assisted technology will have been taken into consideration throughout the assessment process. However, Practitioners are expected to explain the policy during the assessment process. Where a proposed support plan exceeds the usual maximum expenditure the first step would be to re-examine the detail of the plan to see if any of the needs can be met in less expensive ways, e.g. with the help of informal support. Where the usual maximum expenditure is exceeded an individual has the right to make up the difference between the Council’s allocated funding and the amount needed to fund their preferred support plan. A third party could also offer to make up the difference in funding needed to deliver the preferred support plan. However, [the Council] must be satisfied that the revised support plan is able to meet agreed needs and appropriately manage risks and such cases would be agreed at the Resource Allocation Panel. Should circumstances change and the individual or third party no longer be able to make up the difference a reassessment would be triggered. This policy will be applied through the decision-making process of the Resource Allocation Panel and the outcome communicated in writing to the individual. Where the home based support plan is not agreed the Practitioner will look at care home placements with the individual and their representatives. Exceptions to this policy will be agreed through the Resource Allocation Panel. Those decisions will be made on an individual basis. Factors that would be taken into account in the exercise of discretion include the potential for further reablement and the eventual reduction of support needed, cultural issues requiring a specialist agency or exceptional family circumstances such as the separation of family members.”

For an individual not satisfied with a decision, there was a right of review by the Resource Allocation Panel; a right of appeal to an Appeals Panel of three managers; and a right of recourse to the Council’s complaints procedure.

[49]That was substantially a reiteration of the Director’s Report for the meeting, which said:

“5. It was noted that application of the policy could result in services being delivered that would not be people’s first choice about the way they receive care. In such circumstances there will be a range of options discussed with service users, including arrangements like shared living, assistive technology and other types of appropriate support to meet assessed eligible needs rather than expectations. This aims to balance available resources with the duty to meet assessed need and to do so in a way that was transparent, equitable and enables the best use of resources. It is expected that this will lead to an agreed positive outcome in most cases. An appeals process will be available if required… 6. The approach for younger adults would be to compare on an individual basis, the costs of meeting their needs in a residential setting against the costs of meeting their needs in the community. This would then allow a discussion about how their needs could be met in the community in a way that was comparable, in cost terms, to residential care. It did not mean that people would be forced into residential care.”

[50]The report stated that the expected financial savings would be £500,000 over four years (paragraph 36); and, over two years, there were an expected 87 young people in transition who would have eligible social care needs as adults (paragraph 39).

[51]At the meeting, members of several representative organisations spoke expressing concern about the Policy, and the fact that it would restrict the choice of service users and (said some) would likely result in some being forced into residential homes even if that was not the Council’s intention. None seems to have specifically raised the PSED. The Lead Cabinet Member (Councillor Gretton), an unidentified female member and the Director responded. The notes of their contributions indicate that Mr Gretton said that “for the vast majority we are not going to be forcing people into residential care” – but that has to looked at in the context of the whole of his contribution and the contributions of others. Mr Gretton said that the policy was about making sure individuals can remain in their homes with the necessary support and in a cost effective way, and he emphasised that exceptional circumstances could override the policy. The female member said that the policy was not forcing individuals to leave their homes, which the Council had not wish or power to do. The Director made clear the following:

“… [M]y main point I think is to say that we have as a council no wish or power to override people with capacity whose wishes are to remain in their own home. Our primary policy remains to support people in their own home wherever appropriate but in a cost-effective way. One of the other presenters… said to you we think council staff should be able to work with them to get better value for money in a way that both sides are happy with and that I think summarises it absolutely accurately. That is the Council’s wish too. We want to work with people to ensure they can remain leading a good quality of life in their own home but cost effectively.”

The Chairman in his summary emphasised that the policy required “working together”.

[52]Therefore, as at the 19 April 2012 meeting (see paragraph 36 above), it is clear that at the time of its 8 November 2012 meeting, the Cabinet well-understood that the proposed policy sought to balance the Council’s policy objectives of supporting disabled people to live full and independent lives within their local communities, and its obligations in relation to public expenditure; the policy sacrificing choice and control by service users to some degree, in favour of reducing public expenditure. That was its very purpose.

[53]With regard to the PSED, the minutes state:

“In developing and consulting on the proposed policy the Council has been mindful of the requirements of the [PSED]. A full [EIA] had been completed incorporating the findings of the service user consultation and detailed both the potential positive and negative impacts of the proposed policy. It also outlined mitigating action which the Council would take to limit potential negative impact for service users. In developing the policy the Council had also been mindful of the need to promote equality of opportunity in the provision of support for disabled service users. People affected by the policy would be provided with relevant information in a format which they were able to access and, where necessary, would be able to access support from advocacy services to assist them in understanding and, if required, question the application of the policy in their individual circumstances.”

That minute appears rather to reflect the Director’s Report: the transcript of the meeting suggests that, at the meeting itself, there was no substantial reference to the PSED in the presentation, and there were no comments by members of the public and no significant discussion of the duty.

[54]After those presentations and discussion, the policy was approved.

The Effect of the New Policy

[55]From those various documents, I consider the substance of the Policy, what it required in practice and its possible consequences, are quite clear. They did not change significantly from the introduction of the policy in April 2012 to its adoption on 8 November 2012. i) The intention of the Policy was to reduce the costs of home social care, by assessing it with reference to the costs of meeting the service user’s needs in a residential home, rather than merely a figure based upon a RAS assessment. ii) The Council discounted making the Policy retrospective: it was to apply only to those adults aged under 65 years who newly applied for social care assistance and to those who already had the benefit of such assistance but whose needs increased. iii) The Council considered that, in perhaps 50% of those individual cases, this would result in a reduction in costs for the Council, and, of course, a correlative reduction in the personal budgets of the relevant individuals and thus in the amount of direct payments received by the relevant service users. iv) That reduction would require a reassessment of how assessed eligible needs for those individuals would be met by the Council, and how the relevant service users would be supported. In particular, it would require consideration of whether the support, whilst continuing to meet the relevant needs, could be given in different ways (e.g. through a change in regime, use of lower cost or voluntary carers, or technology). That reassessment would be done in consultation with the individual and any relevant carers, and in the light of both the Council’s policy with regard to the usual maximum weekly expenditure, and its policy objectives of giving disabled people control and choice over their care support and enabling them to live independently, if they wish to do so. The Council considered that an agreed care package would be possible in most cases. v) Where an agreement was not possible, as it must do, the Council would offer a care support package on a particular basis that it considered met the assessed eligible needs of the individual, and also complied with the Council’s policies – again, both with regard to the usual maximum weekly expenditure policy, and also its policy objectives in relation to disabled people to which I have referred. If the service user was dissatisfied with that offer, he or she could seek a review of and/or appeal against the decision. vi) Of course, under the previous scheme, there would be cases in which the service user wished to stay at home, but the Council would not consider it appropriate to offer a care package that would enable him to do so. However, the Council did not intend that, simply as a result of the new Policy, any individual would be required to go into residential care.

Ground 1: Materially Defective Consultation Process

[56]As I have already indicated, although D’s mother clearly does not agree with the substance of the policy, in this claim the policy is not challenged substantively. There is, for example, no challenge that it contravenes the various provisions that impose duties on local authorities in relation to adults who require care support, to which I have referred (see paragraphs 11 and following). Both grounds are procedural in nature. However, of course, if either ground were proved, that would lead to the Council’s decision to adopt the policy being unlawful.

[57]The first ground upon which the Claimant seeks to challenge the adoption of the policy is that the Council used a consultation process that was materially defective.

[58]The relevant legal principles are uncontroversial. The core principles were set out in R (Coughlan) v North & East Devon Health Authority

[1999] EWCA Civ 1871

;

[2001] QB 213

at [108]: “It is common ground that, whether or not consultation of interested parties and the public is a legal requirement, if it is embarked upon it must be carried out properly. To be proper, consultation must be undertaken at a time when proposals are still at a formative stage; it must include sufficient reasons for particular proposals to allow those consulted to give intelligent consideration and an intelligent response; adequate time must be given for this purpose; and the product of consultation must be conscientiously taken into account when the ultimate decision is taken…”.

[59]In the context of this case, three additional points are worthy of note. i) Coughlan refers to “sufficient reasons for particular proposals”; but the consultation must present relevant information fairly and clearly, to enable “intelligent consideration and an intelligent [i.e. properly informed] response”. ii) However, where information presented on a consultation is inaccurate, that will only lead to a successful challenge if it is(a) material (when taken alone or together with any other aspects of procedural unfairness in the consultation exercise); and

(b) the unfairness shown is clear such that no proper consultation could be said to have taken place because “something [has] gone clearly and radically wrong” (R (Royal Brompton and Harefield NHS Foundation Trust) v Joint Committee of Primary Care Trusts

[2012] EWCA Civ 472

at [12]-[13] per Arden LJ giving the judgment of the court, and approving the quoted words from R (Greenpeace Ltd) v Secretary of State for Trade and Industry

[2007] EWHC 311 (Admin)

per Sullivan J (as he then was)). iii) Generally, there is no duty on the authority presiding over the consultation to enable consultees to consider and comment on other consultees’ representations, although there may be an obligation to disclose for consultation a new point to which those representations give rise, if the consulting authority intends to take that point into account in its eventual decision-making process (R v Secretary of State for Health ex parte United States Tobacco International Inc

[1992] 1 QB 353

at page 370 per Taylor LJ; R v Secretary of State for Wales ex parte Williams

[1997] ELR 100

[60]As Mr Sharland stressed in his submissions, the precise scope and formulation of the Claimant’s first ground has varied over time. However, by the time of the hearing before me, the primary submission was focused and narrow: Mr Wise submitted that the consultation process was defective in that it failed to provide consultees with sufficient information as to the consequences of the proposal for service users.

[61]Before I deal with that submission, it would be helpful to clear the decks of other submissions made from time-to-time on the Claimant’s behalf in relation to the consultation process. There are four matters. I can deal with them shortly.

[62]First, it was said that D’s mother was not informed about the consultation, and was not aware of it until it had closed. She herself does not consider that “adequate steps were taken to ensure that parents were aware of the consultation”; and, as a result, she was not given an opportunity to contribute to it (20 December 2012 Statement, paragraph 17).

[63]The Council accepts that it did not write to D’s mother individually; but it wrote to no individuals. The consultation was focused on representative groups (see paragraph 39 above), as it quite properly might be (see, e.g., British Medical Association v Secretary of State for Health

[2008] EWHC 599 (Admin)

, and R (Staff Side of the Police Negotiating Board) v Secretary of State for Work and Pensions

[2011] EWHC 3175 (Admin)

). But, in fact, the widespread publicity for the consultation, including public meetings, led to many individuals coming forward, being consulted and responding to the consultation. Mr Wise did not press this point before me; but, if and insofar as it was maintained that the consultation was not adequately publicised, there is no force in it.

[64]Second, it was submitted that the Council failed to give consultees the full context of the policy, and in particular it failed to stress the national guidance and its own policy of favouring choice and independent living for disabled people.

[65]There is no merit in this. As I have indicated, the draft Policy document (which was available through the consultation portal from the outset of the consultation period) opened with the policy commitment “[to support] people to live full and independent lives within their local communities”, and “to support them in a way that reflects their preferences and the outcomes they wish to achieve” (see paragraph 30 above). That statement was(i) reiterated at the start of the consultation document itself (paragraph 37 above); and

(ii) retained in the final policy (paragraph 47 above). As I have already said (paragraphs 36 and 52 above), it is clear that, throughout, the Council Cabinet was well aware of these policy objectives.

[66]Third, insofar as the Council relied upon its response to the “Past Caring Report” to remedy deficiencies in information, it was submitted that that response did not do anything to remedy any deficiencies. Whilst it gave (e.g.) particulars of possible numbers of individuals affected by the policy (see above) and what might amount to “exceptional circumstances” (some of which, at least, Mr Wise conceded was useful), that information could have been given at the beginning of the consultation period, and, it was submitted, it was too late and unfair for it to have been given when it was. Most consultees by that stage had made their responses, and had done so without the benefit of that further information.

[67]However: i) It has to be borne in mind that a consultation process has a “natural evolution”, and it is inherent in the process that “it is capable of being self-correcting” (see Royal Brompton at [93] per Arden LJ). ii) The additional information was produced during the course of the consultation process, as a result of the Past Caring Report. It was sent to those representative organisations which had been consulted initially, and put onto the consultation website where it was publicly available. iii) The consultation period was extended by a month to enable anyone who wished to make further comments to make them. I do not accept that the absence of many responses during that extension period – which I appreciate fell within a traditional holiday period – necessarily means that consultees did not consider the new information and take a view as to whether any further response was necessary, even if they had already put made some submissions. For example, in relation to numbers, the Past Caring Report suggested thousands of people would be affected by being force into residential care or to accept less than full care support for their needs at home: the Council’s response suggested people who would be affected would be counted in low tens and none would be forced into residential care. In relation to “exceptional circumstances”, these replicated those in the scheme for those aged over 65 years, about which the representative organisations would have been well aware. In my view, it is unsurprising that few further submissions were made as a result of the publication of the Past Caring Report and response.

[68]Fourth, it is said that the consultation documentation was written in “wholly inaccessible language and was woefully deficient”. Leaving aside the question of whether it properly identified the consequences of the policy (dealt with below: see paragraph 70 and following), on a fair reading of the documentation, there is nothing in this complaint either. The documentation was clear enough, and was accompanied by an Easy Read version.

[69]The other complaints made on behalf of the Claimant – for example, the numbers of people falling within the scope of the policy and being affected by it were not made clear; there was a lack of clarity in the consultation as to how a person’s assessed eligible needs would be met under the new policy; and even the Easy Read version of the consultation materials was misleading, in that it ignored the possibility that the disabled person subject to the policy may be required to choose between having insufficient support to enable him to have all his assessed eligible needs satisfied at home or go into residential care – were essentially aspects of the primary ground upon which Mr Wise relied, to which I now turn.

[70]Mr Wise put his primary submission thus: i) Under its previous policy, based upon its RAS (see paragraphs 22-24 above), the Council already met assessed eligible needs in the most cost-effective way, i.e. at the lowest possible cost: as Mr Wise put it, the Council already met “needs instead of preferences where preferences are more expensive” (Written Submissions, 22 July 2013). ii) Consequently, in respect of any individual, any reduction in the costs of domiciliary care would necessarily result in a care package that does not meet that individual’s assessed eligible needs. iii) This will put an individual whose care costs at home would exceed the costs in residential care – on the Council’s own figures, he submitted, half of the relevant service users – in the position of having the stark and unhappy choice between staying at home with insufficient support to meet their needs – on the Council’s own figures, he submitted, an average 11% shortfall– or having to go into residential care. The practical consequence of the Policy is that disabled people will indirectly be coerced into entering residential care through the loss of essential care services if they stay in the community. They will have no effective choice. And, as for most residential care would be the only realistic option in these circumstances, that had an impact on the service users’ human rights, particularly under

article 5 of the European Convention on Human Rights

. iv) The Council has failed to grapple with this inevitable consequence of its policy (a matter central to the Claimant’s second ground: see paragraphs 90 and following below). Notably for the purposes of this first ground, the Council failed to make this consequence clear in the consultation, with the result that consultees were robbed of the opportunity of making an informed and intelligent response to it. The Council erred in law in not making this consequence clear; and, in particular, it ought to have done so by posing this further specific question in its consultation document:

“Under our proposed policy, if the costs of care in the community exceed the maximum expenditure threshold then (unless there are exceptional circumstances) the person will either have to go into residential care or accept a package of care which is insufficient to meet their needs. Do you agree with this proposal?”

Instead, wrongly, the Council consistently said, and itself acted on the premise, that no one would be forced into residential care as a result of the policy. v) The “exceptional circumstances” caveat in the Policy does not help the Council – because it has never been suggested that circumstances in which the costs of needs being met at home are more than the costs of the same needs been met residentially are exceptional. They are not. Indeed, they will be quite common. vi) Furthermore, the Council did not make clear in the consultation how many service users would fall within the scope of the policy; and how many the policy would adversely affect. As to the latter point, there is no evidence that service users will be able to make good any shortfall in any other way (e.g. by his or her own private means, or through a third party), so that most with a shortfall will be put to that choice.

[71]As a result of these failings, Mr Wise submitted that the consultation exercise was unlawful, in that it did not present the issues and relevant information in a way which enabled an effective informed response to be given. As the consultation was unlawful, the decision taken by the Council pursuant to that consultation is itself unlawful, and should be quashed.

[72]These submissions were skilfully made. They are in form an attack on the procedure adopted by the Council in the consultation process. However, in substance, they bear the hallmarks of a collateral attack on the substance of the Policy, namely that it fails properly to take into account as a material consideration policy objectives – both its own (see paragraph 29 above), and national guidance (see paragraphs 13-17 above) – to encourage increasing the independence of disabled people, in particular by enabling and supporting them in(i) informed choices about how their eligible needs are to be met and

(ii) independent living, if that be their choice. That is the thrust of the statements referred to at paragraph 10(ii) above, which attack the substance of the Policy, not the procedures by which it came to be adopted. For example, Ms Harrison of Mencap says:

“[The Council’s] policy completely undermines the Government’s commitment to independent living, enshrined in the UN Convention on the Rights of Persons with Disabilities as well as “Valuing people” and “Valuing people Now”. [The Council’s] policy is a distinctly backward step away from the right to live independently in the community and towards people with a learning disability living away from their community in residential care homes”

That seems exactly to chime with the views of D’s mother.

[73]Certainly, it is a central plank of the Claimant’s case in this claim that the Policy will result in half of those who fall within its scope being required to choose between receiving less than is required to meet their assessed eligible needs at home, and going into residential care. D’s mother considers D will fall within that number, and she is fearful that he will be forced into that choice when he reaches 18. For many, it is said that that will be no real choice at all: they will be indirectly coerced into residential care. It is central to the Claimant’s case on this ground, because it is that consequence of the policy which, Mr Wise submits, was not made clear in the consultation, thus rendering it impossible for consultees to make informed responses which, in its turn, rendered the consultation unlawful and the decision of the Cabinet to adopt the policy on the basis of the consultation bad. It is also central to the Claimant’s second ground, because Mr Wise submits that the Council Cabinet were not properly informed when it adopted the Policy, because this consequence was not made clear to Cabinet members either.

[74]However, whether the policy has the consequence for which Mr Wise contends is very much in issue. Mr Sharland submits it does not. I agree.

[75]Mr Wise’s proposition that half of those who fall within the scope of the policy will be required to choose between receiving less than is required to meet their assessed eligible needs at home or going into residential care is based upon the premise that, under the adult social care regime prior to the Policy, the Council met all assessed eligible needs at the cheapest possible cost. That premise is important to the overall submission, because, if it were true, any reduction in the costs of domiciliary care could only result in such care not meeting the relevant needs; and thus it is the basis for the contention that the policy will necessarily put the half of those eligible for social care support whose home care costs exceed the equivalent residential costs to the unhappy choice of home care without sufficient support or moving into residential care.

[76]I pause to note that, if the premise were true, then it seems to me that this ground of claim would inevitably fail – because, on the Claimant’s understanding of them, under both the pre-Policy and the Policy regimes, residential care would always be provided if that were the cheapest way of providing for an individual’s social care needs, and so the new Policy marked no change requiring consultation in that regard.

[77]But the premise is clearly false. There is nothing in the evidence to suggest that, before the Policy was adopted, social care needs were met at the cheapest possible cost, irrespective of the wishes and preferences of the relevant individual. In the report on which the earlier scheme was approved – put into evidence after the hearing before me by the Claimant, and relied on by her – it was said that that RAS scheme would ensure “that all service users’ needs have been met, but in a leaner and more efficient way” (paragraph 16). That did not require, or even imply, the cheapest possible way. It implied that, in line with its statutory obligation to satisfy all assessed eligible needs and its policy objectives to encourage disabled individuals to have independent living and control over their social care support regime, but bearing in mind that less public funds were available, the Council considered that the RAS scheme would result in lower costs than had previously been expended. It did not suggest that cost would be determinative; but, in the sophisticated balancing exercise that the Council has to perform in relation to individuals with social care needs that had to be met, there had been a slight re-balance against individual’s preferences and in favour of saving cost. That is an exercise which is, in practice, the more difficult when public money is short; but it is the sort of exercise that public decision-makers have to perform every day. It is their job.

[78]Mr Wise responded in his written submissions of 29 July 2013 that, if, as was clearly the case, the Council had been spending money more than the absolute minimum in meeting assessed eligible needs (i.e. “that preferences were being funded, not merely need”), consultees would undoubtedly have wished to make representations about that in the 2012 consultation. However, with respect, that fails to take account the true nature of public decision-making, in a political context. Whilst of course an authority must comply with its statutory obligations and meet the assessed eligible needs of an individual, the manner in which it does so is the subject of a very wide discretion. How it exercises that discretion will be depend upon all relevant circumstances, including relevant policies and guidance, an individual’s preferences and also available resources. Where available resources become more sparse, then it is open to an authority to review the manner in which it meets the needs it must meet (see paragraph 19(iv) and (v) above); but without necessarily meeting them in the cheapest possible way, and ignoring entirely the other policy objectives such as individual choice and independence.

[79]The Council’s Interim Head of Adult Care (Ms Denise Anne Clarke) has, through Mr Sharland’s written submissions of 25 July 2013, confirmed that that is indeed how the pre-Policy regime worked in practice; but, even without that, from the face of the documents that the Claimant has submitted, it seems to me that that was the obvious intention, purport and effect of the previous scheme. I do not consider the contrary to be arguable. Certainly, it would have been surprising and, given the policy imperatives other than cost saving to which I have referred, almost certainly unlawful if it had been otherwise.

[80]As I have indicated, that late-running false premise is important; because upon that premise was based the submission that any reduction in money made available to an individual for social care at home inevitably led to that individual having to make the choice between care at home insufficient to meet his or her assessed eligible needs, or moving into residential care; and consequently, for those who wished or required their assessed eligible needs to be met, indirect coercion into residential care.

[81]Without that premise, the Claimant’s submission on this ground begins to founder; because, even leaving aside a residential option, if the pre-Policy regime met assessed eligible needs in a manner other than necessarily the cheapest possible way, then, even with a lower indicative personal budget figure for an individual service user derived from a comparison with residential care costs (as the new Policy proposes), there is room for the Council considering – and, hopefully, agreeing with the service user – a cheaper but statutorily adequate domestic care package. As I have indicated, in developing the Policy (and in the consultation process), the Council was acutely aware of its policy objectives, and the consequence of the Policy in giving greater weight to cost saving and less to the personal preference and choice of service users. Importantly for this claim, the Council also made clear its willingness – indeed, commitment – to discuss with individuals and their carers how needs might be met more cheaply if, pursuant to the policy, the individual’s preferences would cost more than meeting that individual’s needs in a residential setting.

[82]Ms Clarke does not consider the new Policy undermines the strategic objective to develop services so that fewer, not more, disabled people are living in residential care (see paragraph 29 above); and appears confident that “the Council will be able to work with service users who wish to reside in the community rather than a residential home to design a support package that meets their eligible needs in the community” (26 June 2013 Statement, paragraph 46). That confidence appears to apply to all such service users. She sets out (in paragraph 26 of her statement) how the Council would approach meeting D’s needs if, contrary to the recent core assessment, he has eligible needs the cost of which in a flat of his own would exceed the cost of meeting them in a residential placement:

“[D’s] social worker would sit down with [D], his mother and any advocate and discuss how his support plan could be drafted so that his eligible needs can be met in the community, if this is what [D] wants. One way of achieving this outcome is if [D] shared a flat and support services with another service user. Whilst that may not be [D’s] first choice, such provision would meet [D’s] eligible needs without him having to go into residential care whilst also saving the Council significant sums of money. Such a result ensures that the Council meets its statutory duties whilst using its limited financial resources efficiently.”

Of course, that is not more than an illustration – at this stage, it could be no more than that – but it is precisely in accordance with the requirement of the scheme that the Council, service users and carers cooperate in finding the best way in which an individual’s needs might be met, in the light of both their preferences and the limited available public funds.

[83]I accept that, in a particular case, despite Ms Clarke’s confidence, it might be impossible to reduce the costs of domiciliary care in meeting a service users relevant needs to the equivalent costs of residential care; and I accept that the Council have not offered a guarantee that those will be treated as exceptional circumstances for a payment of costs in excess of the costs of residential care. However, contrary to Mr Wise’s submission, these circumstances will not be common: they are likely to be rare. Each case will, no doubt, depend upon its own circumstances; but, in exercising its discretion as to whether to allow greater costs that the residential equivalent, the Council will be required to take into account its own policy objectives of giving disabled individuals control and choice over their care support, encouraging disabled individuals to live independently in the community, and having less not more individuals in residential care. It will also be required to take into account its assurances during the consultation period – and in the course of this claim – that no individual will be forced into living in residential care, as a result of this policy alone.

[84]As I have emphasised, I am not concerned with the substance of this policy; only whether the consultation in respect of it was adequate. Mr Wise submitted that it was not because the consultation documents did not indicate how many people would be affected by the policy nor did not accurately set out the consequences for those who were affected.

[85]With regard to numbers, I consider this criticism to be unfounded. The Policy is only forward-looking. The number of people who might be affected by it will inevitably depend upon an assessment of the particular needs and circumstances of those who fall within its scope; hence the Council said in its response to the Past Caring Report that the number of people affected would be “difficult to identify”. But that response did say that, in the year 2011-12, a total of 65 individuals would have fallen within the scope of the policy, with possibly half having their care regime altered as a result. Whilst that information was not provided on the consultation portal until that response, in mid-July 2012, it was then sent to the representative group consultees; and it appears that none had further submissions to make having received that further information. The information is broadly in line with the figures given to Cabinet for their 8 November 2012 meeting, that an aggregate of 87 young people had been identified who would likely move from being minors to young adults potentially needing adult care services in the following two years. There is no merit in the suggestion that the consultation was deficient because of a failure to identify numbers affected.

[86]The main focus of Mr Wise’s criticism was, however, in the suggestion that the consultation failed to identify the consequences for those who were affected. That submission was made on the premise that perhaps half of those who fell within the scope of the policy would have to choose between staying at home and not having all of their eligible needs met, or moving into a residential home, for many the latter being the only realistic option. For the reasons I have given, that is not so. For those whose preferred care package at home costs more than the equivalent care in a residential home, the policy will mean hard consideration of how their needs, and which of their preferences, can be met at home. For some, no doubt, their eventual care package will contain elements that are not their first choice. But that was made very clear in the consultation documents. Indeed, unhappy as it might be, it was this trade off of preferences and choice for service users on the one hand, and cost saving on the other, which is at the very heart of the Policy, and was at the very heart of the consultation.

[87]The possibility that, as result of this policy, an individual service user might be offered only a residential care package rather than one for home care was not canvassed in the initial consultation documents. It was raised in the Past Caring Report, which suggested – in retrospect, with dramatic pessimism – that thousands of service users would end up in residential care, or be required to stay at home without their eligible needs being met. The Council responded, reiterating that it was not its intention that any service user be required to go into residential care as a result only of this policy. There is no evidence that, as a result of this policy, any individual has in fact been required to do so.

[88]In all the circumstances, I am quite sure that, in failing to indicate that the policy would or might result in service users being put to choose between residential care with full support, or home care with less support than is required to meet his or her eligible needs, this consultation was not deficient at all, and certainly was not “radically wrong”.

[89]Consequently, this ground fails.

Ground 2: The Public Sector Equality Duty

[90]As his second ground of challenge, Mr Wise submitted that, in adopting the policy, the Council failed to comply with its PSED under section 149 of the Equality Act 2010.

[91]By section 4 of the 2010 Act, “disability” (as defined in section 6) is a “protected characteristic”, as is age. Section 149 provides, so far as relevant to this claim: “(1) A public authority must, in the exercise of its functions, have due regard to the need to –(a) eliminate discrimination, harassment, victimisation and any other conduct prohibited by or under this Act;

(b) advance equality of opportunity between persons who share a relevant protected characteristic and persons who do not share it;

(c) foster good relations between persons who share a relevant protected characteristic and persons who do not share it. … (3) Having due regard to the need to advance equality of opportunity between persons who share a relevant protected characteristic and persons who do not share it involves having due regard, in particular, to the need to – (a) remove or minimise disadvantages suffered by persons who share a relevant protected characteristic that are connected to that characteristic; (b) take steps to meet the needs of persons who share a relevant protected characteristic that are different from the needs of persons who do not share it; (c) encourage persons who share a relevant protected characteristic to participate in public life or in any other activity in which participation by such persons is disproportionately low. (4) The steps involved in meeting the needs of disabled persons that are different from the needs of persons who are not disabled include, in particular, steps to take account of disabled persons’ disabilities.” (a) eliminate discrimination, harassment, victimisation and any other conduct prohibited by or under this Act; (b) advance equality of opportunity between persons who share a relevant protected characteristic and persons who do not share it; (c) foster good relations between persons who share a relevant protected characteristic and persons who do not share it. (a) remove or minimise disadvantages suffered by persons who share a relevant protected characteristic that are connected to that characteristic; (b) take steps to meet the needs of persons who share a relevant protected characteristic that are different from the needs of persons who do not share it; (c) encourage persons who share a relevant protected characteristic to participate in public life or in any other activity in which participation by such persons is disproportionately low.

[92]There is now extensive case law on the PSED found in section 149 and its predecessors. Three recent helpful summaries can be found in R (Boyejo) v London Borough of Barnet

[2009] EWHC 755 (Admin)

at [49]-[59] (His Honour Judge Jarman QC) (adopted by Blake J in R (Rahman) v Birmingham City Council

[2011] EWHC 944 (Admin)

at [31]), R (JM) v Isle of Wight Council

[2011] EWHC 2911 (Admin)

at [95]-[108] (Lang J) and R (Williams) v Surrey County Council

[2012] EWHC 867 (QB)

at [16] (Wilkie J).

[93]The relevant propositions of law for the purposes of this claim are as follows. i) Section 149(1) sets out a number of statutory goals, e.g. the elimination of discrimination and the advancement of equality of opportunity. Section 149(3) sets out sub-goals in respect of the goal of advancement of equality of opportunity, e.g. the removal or minimisation of disadvantages suffered and the taking of steps to meet the needs of a relevant person. However, the provisions do not impose a duty on an authority to take any particular steps or to achieve any particular result or goal; nor, reciprocally, do they give direct rights to an individual with a protected characteristic. An authority merely has a duty to have due regard to the need to achieve the statutory goals. ii) “Due regard” is merely proper or appropriate regard in all the circumstances (R (Baker) v Secretary of State for Communities and Local Government

[2008] EWCA Civ 141

at [31]). iii) Determining whether the decision-maker has had due regard to the relevant statutory need or goal is an exercise(a) which is fact-sensitive, being dependent upon all the circumstances of the particular case (R (Harris) v London Borough of Haringey

[2010] EWCA Civ 703

at [40], and R (Bailey) v London Borough of Brent

[2011] EWCA Civ 1586

at [75] and [83]);

(b) which looks at substance, not form (R (Domb) v London Borough of Hammersmith & Fulham

[2009] EWCA Civ 941

);

(c) for which a mere general awareness of the duty is insufficient: it requires “a conscious directing of the mind to the obligations” (R (Meany) v Harlow District Council

[2009] EWHC 559 (Admin)

at [74] per Davis J (as he then was), approved in Bailey);

(d) which requires consideration of specific goals in play and an analysis of the relevant material with those goals in mind (Harris at [40]);

(e) which requires “rigour and an open mind” (R (Brown) v Secretary of State for Work and Pensions

[2008] EWHC 3158 (Admin)

) at [92]); and (e) which must be performed before or at the time the particular policy is considered, it being “an essential preliminary” to any important policy decision not a “rearguard action following a concluded decision” (R (BAPIO Action Ltd) v Secretary of State for the Home Department

[2007] EWCA Civ 1139

). iv) If the risk of adverse impact is identified, consideration should be given to measures to avoid that impact before fixing on a particular solution (R (Kaur) v London Borough of Ealing

[2008] EWHC 2062 (Admin)

). v) The court’s role in considering whether the decision-maker has erred in paying due regard to the relevant goals has been the subject of consideration in a number of recent cases, which have tended to consider two options: (a) the court considers whether any regard was taken by the decision-maker, and if so, whether the decision was Wednesbury unreasonable; or (b) the court takes it own view of what is due regard in all the circumstances. I am afraid I have found that debate somewhat arid. The law, as I understand it, was set out by Elias LJ in R (Hurley and Moore) v Secretary of State for Business Innovation and Skills

[2012] EWHC 201 (Admin)

at [77]-[78]:

“77. … I do not accept that this means that it is for the court to determine whether appropriate weight has been given to the duty. Provided the court is satisfied that there has been a rigorous consideration of the duty, so that there is a proper appreciation of the potential impact of the decision on equality objectives and the desirability of promoting them, then as Dyson LJ in Baker (at [34]) made clear, it is for the decision-maker to decide how much weight should be given to the various factors informing the decision. 78. The concept of ‘due regard’ requires the court to ensure that there has been a proper and conscientious focus on the statutory criteria, but if that is done, the court cannot interfere with the decision simply because it would have given greater weight to the equality implications of the decision than did the decision-maker. In short, the decision-maker must be clear precisely what the equality implications are when he puts them in the balance, and he must recognise the desirability of achieving them, but ultimately it is for him to decide what weight they should be given in the light of all relevant factors. If [the claimant’s] submissions on this point were correct, it would allow unelected judges to review on substantive merits grounds almost all aspects of public decision-making.”

That being a judgment of a Divisional Court, it is binding on me. However, with respect to judges who might have taken a different view from it, in my judgment (a) it is in accordance with principle; (b) it is in accordance with authorities of the higher courts such Domb (especially at [72]), Baker (at [34]) and Brown (at [82]), as well as recent judgments of this court (R (D and S) v Manchester City Council

[2012] EWHC 17 (Admin)

at [52]), and R (S and KF) v Secretary of State for Justice

[2012] EWHC 1810 (Admin)

; and (c) I do not consider that Meany (at [72]), which seems to have been used to support an alternative approach (see JM at [104] and Williams at [18] and [24]-[25]), does, on a proper reading, support any different approach. In my judgment, the exposition of Elias LJ in Hurley and Moore, upon which I could not improve and which I gratefully adopt, is clearly correct. It requires the court to consider whether the decision-maker approached the question correctly, in line with the law set out above; but, if he does so, the weight given to the consideration is entirely a matter for him.

[94]Mr Wise submitted that, in breach of its PSED, when adopting the policy on 8 November 2012, the Cabinet failed to have due regard to the need to advance equality of opportunity between disabled persons and those who are not disabled. He relied upon four matters: i) The Cabinet members did not have before them sufficient information to enable them to have due regard to that goal. ii) The EIA was defective. iii) The mitigation relied upon by the Cabinet was flawed and irrational. iv) The Cabinet made no attempt to avoid the detriment caused.

[95]I will deal with those in turn. However, before I do, it is worthwhile marking that this ground is particularly challenging for the Claimant for the following reasons (which, in part, reflect the analysis and comments of Davis LJ in R (Bailey) v London Borough of Brent

[2011] EWCA Civ 1586

at [102] and of His Honour Judge Keyser QC in R (Copson) v Dorset Healthcare University NHS Foundation Trust [2103] EWHC 732 (Admin) at [57], for which I am grateful): i) The Claimant has the burden of showing that the relevant public authority has failed to comply with its PSED. ii) The Policy, which the Cabinet determined should be adopted, was specifically in respect of the provision of services to persons with a relevant protected characteristic (i.e. disability), and the relevant protected characteristic was the reason for the provision of services to them. Indeed, the very decision for the Cabinet was in relation to the proper balance between a diminution in choice and control of those with the relevant protected characteristic (i.e. adult community care service users) in favour of a reduction of pubic expenditure. As Judge Keyser astutely comments, it does not necessarily follow that the Cabinet had due regard to the need to advance equality of opportunity; but the subject matter of the Cabinet’s decision makes the Claimant’s contention that the Cabinet failed to have due regard rather less plausible. iii) Whether an authority has complied with its PSED is fact-specific. This is not a case where the PSED was simply ignored. As I have indicated (see paragraph 43 above), not only was an EIA commissioned, the Council set up an EIA Working Group to oversee and contribute to the EIA, in the context of the consultation responses, and it met a number times. At each meeting, it considered the requirements of the PSED, and in particular the need to advance equality of opportunity for disabled people. The Council’s Equality and Diversity Manager (Ms Sandra Bannister), who was a member of that group, states: “Throughout the decision-making exercise Due Regard was given to the need to advance equality of opportunity…” (26 June 2013 Statement, paragraph 22)) iv) As again referred to in paragraph 43 above, Ms Bannister accepts that the EIA could have been fuller; but(a) an EIA is not a statutory requirement – it is merely a tool whereby decision-makers might inform their efforts to comply with their PSED – and it is thus wrong to subject it to minute forensic or exegetical analysis (see Domb at [52] per Rix LJ, Bailey at [102] per Davis LJ, and Copson at [57(6)] per Judge Keyser); and

(b) Ms Bannister considered that, reading all the material the Cabinet had before it, the potential adverse impact for disabled people affected by the policy was clear: “… a small number of individuals are likely to be adversely impacted by the Policy because it will result in them not receiving their first choice as to provision to meet their eligible needs…”. v) Although perhaps not a factor of great weight, the Cabinet was concerned that adult community service users aged over 65 were the subject of the additional restriction on community care packages of a usual maximum expenditure not exceeding the equivalent residential care costs; and were concerned that this was unfair as between disabled adults of different ages on the basis of age. That was factor is favour of the Policy.

[96]I now turn to Mr Wise’s specific submissions.

[97]First, he submitted that the Cabinet members did not have before them sufficient information to enable them to have due regard to the need to advance equality of opportunity between disabled persons and those who are not disabled, in the following respects: i) The focus of the entire PSED ground was the contention that Cabinet members were not made aware that a substantial number of disabled people would either have to lose essential support to meet their eligible needs in the community, or unwillingly go into residential care. I have already dealt with this issue above. As with the first ground, it is based on the false premise that service users would be faced with that choice. ii) It was submitted that Members were not told, and would not have appreciated, that, under the previous policy, the costs of community care already represented the cheapest way of providing those domiciliary services; and so any reduction in those costs would lead to the choice referred to in (i) above. However, for the reasons I have given in relation to the first ground, that too is a false premise. iii) It was submitted that Cabinet members were not properly informed that there is an absolute duty to meet an individual’s eligible needs. However, that is clearly not so: Appendix 2 to the policy summarises the relevant legislation, including a section with the cross-heading, “Duty to arrange/provide services for people with Eligible Needs”. It is inconceivable that Cabinet members did not properly appreciate the Council’s duty in this regard. iv) It was submitted that Cabinet members were not given sufficient information about the prospects of the social care market (including the voluntary sector) being able to absorb an 11% reduction in funding, members being simply told that:

“It was recognised that additional work was required to stimulate the market to create a momentum for change however opportunities did exist to provide an extension to the current range of services available”

. However, the market for care services was not the only way in which the Policy proposed the costs of providing services to meet eligible needs might be reduced. Changes that might be encouraged in that market were not, as Mr Wise submitted, crucial to the Policy. The Cabinet were perfectly entitled to conclude that, even with that degree of uncertainty (which was made very clear to them), the Policy could and should still be adopted.

[98]I am therefore unpersuaded that the Cabinet members did not have before them sufficient information to enable them to have due regard to the need to advance equality of opportunity, in any of the respects relied upon by Mr Wise. Indeed, looking at all of the information that the Cabinet had before it, I am quite sure that Cabinet members had more than adequate information properly to consider this issue.

[99]Second, Mr Wise submitted that the EIA was defective, because it did not contain any quantitative or qualitative data in relation to the groups which might be affected by the Policy.

[100]In fact, when the whole of the documentation before the Cabinet is considered, there is a considerable amount of information as to how service users might be adversely affected, and how the Policy sought to deal with those potential effects. But the simple answer to the submission is that the such data were not necessary, because the adverse effects of the Policy are as obvious in this case as they were in McDonald (see [24] per Lord Brown) and R (Rajput and Shamji) v London Borough of Waltham Forest

[2011] EWCA Civ 1577

(see [40] per Rimer LJ) As Ms Bannister said (see paragraph 44 above), the potential negative impact on those with the protected characteristic was clear, namely: “… a small number of individuals are likely to be adversely impacted by the Policy because it will result in them not receiving their first choice as to provision to meet their eligible needs…”. (26 June 2013 Statement, paragraph 13): The number of people who might be affected was estimated. They would be adversely affected, because their choice of care package elements would be restricted. The precise ways in which they would be adversely affected would depend upon their individual circumstances; but some worked examples were given. There is no substance in this criticism.

[101]Third, Mr Wise submitted that the Cabinet failed to have a proper understanding of the potential detriment to disabled people, and consequently failed properly to consider how the true detriment might be mitigated. However, that submission is again based on the (false) premise that substantial numbers of disabled people would be required to choose between staying in the community with insufficient support to meet their eligible needs, or go into residential care. As I have indicated above (paragraph 100), the potential negative impact of the Policy on those with the protected characteristic (i.e. disabilities) was clear. Furthermore, there is something unrealistic about the concept of mitigation of the effects of the Policy, when, because of its very nature, the Policy itself inherently takes into account such matters. For example, it only applies prospectively, and requires the Council in any particular case to consider how and to what extent an individual service users preferences may be accommodated.

[102]The Policy itself required the Council to liaise with each relevant service user, to discuss how his or her costs of care might be reduced, whilst still meeting his or her outcome preferences, and preferences in terms of how the service should be supplied, possible option including creative use of personal budgets and direct payments to purchase more flexible and cost effective support, greater use of technology, travel training, access to benevolent funds, and use of cheaper or voluntary care assistance. Mr Wise complains that none of these was underpinned by evidence as to how these, individually or in aggregate, would enable individuals to maintain community living. But, with respect, that would be to ask too much of the EIA.

[103]Fourth and finally, it is submitted that the Council did not consider from where else these savings – modest, submitted Mr Wise, at £200,000 in the first year, and £500,000 over four years - might be made. The Council of course considered, generally, from where the enormous savings required to be made could come. Given the financial position of the Council, it was inevitable that some would come from the adult community budget. The option of changing the eligibility criteria was considered (see paragraph 25 above). In all of the circumstances, the Council was not required to do more in considering how these savings might be made outside the adult community care budget.

[104]Therefore, I am unpersuaded as to the merit of any of the matters raised by Mr Wise under this ground. Indeed, I have no doubt that the Cabinet did have due regard to its PSED, and in particular to the need to advance equality of opportunity

[105]For those reasons, this second ground too, fails.

Conclusion

[106]One can but have sympathy for those with real needs whose state support is reduced, reducing with it their choices and no doubt to an extent their quality of life. In particular, as I have indicated, the concern of the Claimant’s mother for her son, as he approaches adulthood, is entirely understandable, particularly in the light of her own medical condition.

[107]However, this claim concerns only the legality of the adoption of the Policy by the Council, in the light of the consultation process and its PSED. For the reasons I have given, and despite the considerable efforts of Mr Wise, the Claimant has fallen far short of persuading me that the Council erred in law, in either regard.

[108]Consequently, this claim fails.