Rajput & Anor, R (On the Application Of) v East Sussex County Council

These two appeals have been brought with the permission of Arden LJ. The first in time is against an order made by Calvert Smith J in the Administrative Court on 21 January 2011 refusing the appellants, Pranjivandas Rajput and Ashok Shamji, permission to apply for judicial review. The second is against an order made by Thirlwall J in the Administrative Court on 15 July 2011 dismissing the claim by the appellant, Robert Tiller, for judicial review. As Arden LJ regarded the appeals as raising similar issues, she directed that they be heard together. Matthew Hutchings represented the appellants in both appeals, as below. Paul Greatorex represented the London Borough of Waltham Forest, the respondent to the first appeal. Parishil Patel represented the East Sussex County Council, the respondent to the second appeal, as he did below.

Both appeals focus on the duties imposed by section 49A(1) of the Disability Discrimination Act 1995 (‘the DDA’). Section 49A was inserted into the DDA by section 3 of the Disability Discrimination Act 2005 and was in force at the time material to these appeals (it has since been replaced by section 149 of the Equality Act 2010). It is said that the makers of the disputed decisions did not have sufficient regard to the duties that it imposed. Section 49A(1) provides:

We had short arguments on the first appeal, in which the limit of our remit is to decide whether permission to apply for judicial review should be given. We reserved our judgment and then heard the arguments on the substantive appeal against Thirlwall J’s order dismissing Mr Tiller’s claim for judicial review. This is my judgment on both appeals. I deal first with Mr Tiller’s appeal.

Tiller v. East Sussex County Council

Background facts

The appellant, Mr Tiller, is a disabled person within the meaning of the DDA. He is a tenant of 4 St David’s Court, Balcombe Road, Peacehaven, Sussex, a 35-unit sheltered housing site owned by Lewes District Council (‘LDC’), which manages St David’s and contributes to its staffing costs. The respondent, East Sussex County Council (‘ESCC’), also provides a major part of its funding.

All the tenants at St David’s are elderly and have disabilities. The living arrangements in place for about ten years down to 12 October 2009 (when the ESCC made the relevant decision) are described as hybrid, meaning that the tenants had more support than in LDC’s standard sheltered accommodation but less support than in those properties where ‘extra care’ is provided for those with greater needs (for example, at LDC’s housing scheme at Downlands Court, Peacehaven, which opened in September 2009). That hybrid service included a full-time, 24-hour non-residential warden service, operating seven days a week. One warden would serve a 12-hour day shift from 10.00 am to 10 pm; another would serve a 12-hour night shift until the changeover at 10.00 am the following day. In addition, each tenant had his or her own personal package of care funded by LDC.

In 2008 various ESCC officers embarked upon a consideration of changing the level of service provided by its Adult Social Care (‘ASC’) services at St David’s. An early plan had been criticised by the tenants and so ESCC undertook to embark upon a fresh consideration of what (if any) changes to make to the level of service, ensuring that there would be full consultation with those affected by any change. A meeting at County Hall in Lewes on 5 August 2008, attended by eight ESCC and two LDC representatives, resolved upon agreeing a new process that would bring everyone involved at St David’s together. Those present were to form the ‘St David’s Project Group’ (‘the Project Group’) and the tenants and their representatives were to be involved from the start so that the consultation process should be fully transparent. The Project Group met monthly from August 2008 to October 2009. The views of the tenants and their carers were obtained by questionnaires, surveys and at open meetings at St David’s. The Project Group was chaired by Barry Atkins, ESCC’s Head of Strategic Commissioning.

The outcome was a report of 12 October 2009 by Keith Hinkley, ESCC’s Director of Adult Social Care. It contained a recommendation to ESCC that the 24/7 warden service at St David’s should be discontinued and replaced. The recommended new service was to be one under which there would be an on-site manager at St David’s during office hours from Monday to Friday, but not overnight or at weekends. Any problems arising when there was no manager on site would be met by a ‘telecare’ system by which the tenant can operate an alarm with which he is supplied. The alarm transmits a call to the off-site system operators, WEL, who would then respond accordingly, if necessary by arranging for the attendance of emergency services at St David’s. ESCC was also to provide any additional home care services that any tenant was assessed as needing. The recommendations in the report were accepted on behalf of ESCC by Councillor Bentley, the ASC Lead Cabinet Member, who on 12 October 2009 made the decision to implement it. That is the decision under challenge. I must say a little more about the consultation process leading up to the decision.

The judge summarised the consultation process in [20] to [33] of her judgment. She had seen the minutes of all the meetings. She explained that the tenants and carers were included in the Project Group and that the whole process was organised so as effectively to identify the needs of the tenants, all of whom were elderly anddisabled. All tenants were offered a full individual assessment of their needs and many took advantage of it. Those who wished to have a greater level of support than was likely to be provided at St David’s after the implementation of any changes were invited to apply to move to Downlands Court, where greater support was provided; and all those who asked to move there were duly moved. The judge said that it was clear from the minutes that Mr Atkins wanted to achieve a more equitable use of funds across the whole spectrum of ASC, as he had made clear at the November 2008 meeting. The judge said this was a powerful countervailing factor against the retention of the then current level of provision at St David’s.

It is not surprising that, during the consultation, concerns were raised by and on behalf of the tenants as to the potential impact upon them of the proposed reduced service. Mr Atkins noted in January 2009 that whilst he understood these concerns, it would never be possible to provide 100% safety to all tenants at all times; every risk could not be catered for. In his view, the Project Group needed to look at how the level of risk would change depending upon what changes were made to the current service provisions. The judge recorded that consideration was given to three key themes: (1) what needs there were at St David’s and what events occurred that required an immediate response? (2) How were the needs managed? (3) How else could they be managed? She said there was an underlying assumption that the status quo would not continue. She referred to the minutes of the meeting on 13 February 2009 at which an ESCC representative said that options for St David’s could be set along a spectrum, but that two options that were not up for consideration were: (1) the removal of any scheme manager/support presence; and (2) leaving the staffing arrangements as they were. In respect of the latter (non) option, Mr Atkins explained that the St David’s scheme cost LDC three times per person more than the county average for a sheltered scheme, adding that as there were few tenants with high levels of needs, the figures could not be justified and it was important to make changes.

At a meeting on 19 June 2009, a tenants’ representative expressed his view that the removal of overnight care remained his prime concern; and that whilst he was aware that retaining it was not regarded as an option, he could not support it. His concerns were echoed by two carers’ representatives. The Project Group was informed that the suggestion that overnight staff might be removed was causing widespread distress to relatives. At a meeting on 15 July 2009, Mr Atkins reassured tenants and carers that their concerns were being listened to and that staff would try hard to resolve them and find other ways to provide support. It was, he said, time to move to a decision. Some of the tenants and carers present expressed the view that changes had been talked about for long enough and it was now time to action them, even if they were not satisfactory to everyone. The same two carers’ representatives said that they were ‘absolutely opposed’ to the changes. A meeting on 12 August 2009 noted that a tenants’ meeting had been well attended; that (according to the St David’s Resident Representative) minds had been put at rest, particularly by the presence of WEL; and that there was a ‘feeling’ that the tenants were relieved that a decision had been made and the matter would move forward. On 8 and 9 September 2009 ESCC relocated to Downlands Court those tenants at St David’s whom it assessed as most vulnerable.

On 12 October 2009 Mr Hinkley presented the report to Mr Bentley. Its subject was the ‘Support Arrangements for [St David’s]’. Its purpose was to ‘seek agreement for the new support arrangements to be put in place at [St David’s]’. It attached no background documents. Its recommendations were to agree: (1) the new support arrangements for St David’s; and (2) that the savings made be re-invested into ASC and Supporting People Services.

The body of report was as follows:

The report and its recommendations were considered by the Cabinet of ESCC, acting by Mr Bentley, on 12 October 2009. He agreed the recommendations. It was his decision to do so that is challenged. It was recorded as follows in the minutes:

The issue of proceedings by Mr Tiller

The decision led to a prompt challenge by various residents at St David’s and, on 5 November 2009, to a letter to Mr Bentley from Hossacks, their solicitors. Their expressed concern was as to the reduction in the provision of 24-hour on-site warden support, the letter asserting that the residents had been told that the change was to be effected as from Monday 9 November 2009. Hossacks invited a deferment of the change so that a meeting and discussion could take place first. The response on 6 November 2009, from ESCC’s Legal Service, summarised the reasons for the changes and said that the decision taken was in accordance with the terms of the tenants’ tenancy agreements. It explained that whilst the new arrangements would commence on 9 November, transitional arrangements would be in place until 30 November, during which 24-hour cover would remain although it would not be provided by the existing staff. The new arrangements would apply as from 30 November, when there would be an on-site warden provided by LDC from Monday to Friday during office hours, with out of hours service being provided by the ‘telecare’ arrangement. The letter added that an analysis of out of hours calls in the past indicated that they could be dealt with by this method. It said that any proceedings would be opposed. Hossacks’ response on 16 November 2009 included that:

A claim form seeking an interim injunction and a judicial review and quashing of the decision was issued on 27 November 2009 by Robert Tiller, a St David’s tenant. He is 67, is a retired lorry driver, and he moved to St David’s in October 2006. He is in good general health, but is disabled, having had his right leg amputated. He has an electronic wheelchair. The statement of facts and grounds asserted that he moved to St David’s because he needed the provision of a full-time residential warden service and was never told that this service could be taken away. The decision of 12 October 2009 was said to be unlawful as it had failed to take account of (1) the effect and potential effect on tenants, in particular disabled tenants, of ESCC’s policy of reducing sheltered housing provision and its proposed termination of the full-time residential warden service; (2) the duty under section 49A of the DDA; and (3) the tenants’ private law contractual rights under their tenancies to a residential warden service. It was said to have been preceded by inadequate consultation with, and inadequate involvement of, the disabled people affected by the proposals. The degree of involvement fell short of the standards set by ESCC’s Disability Equality Scheme, said by the claimant to be in many respects a model of its kind. It was asserted that the report to Mr Bentley failed to show that any proper involvement had taken place or that there had been any empirical inquiry into the effects thus far on disabled persons (or on those who were not disabled, but were elderly and vulnerable) of ESCC’s policy of reducing sheltered housing provision or of the likely effects on such persons of the termination of a residential warden service.

The claim was supported by brief witness statements made on 26 November 2009 from: (1) Mr Tiller, whose statement added little to the assertions summarised, but gave some examples of the relative inefficiency of the new arrangements, including that on one occasion it took ten minutes for a paramedic to gain access, because the new private warden firm would not let him in and he had to call the police in order to achieve access; (2) Mary Barker, now 90, who explained how on one occasion the presence, and immediate response, of the warden on site had saved her life but that the absent of wardens on site after 5.30 pm or at weekends prejudiced the residents’ safety, giving as an example how one weekend she passed out on the floor and there was no warden there to help her; (3) David Coops, now 64, who suffers from a muscle-wasting disease, who complained about the reduction in the service; (4) Barrie Hunt, now 62, who has bad circulation, asthma and diabetes and said that ‘Now all the staff have gone at nights and weekends, there’s nothing here at all. We are so vulnerable now. It’s just panic, panic, panic’; (5) David Rummins, now 80, who was left paralysed down his left side following a stroke, and who explained that but for the presence of his carer on a Sunday when he had a choking fit, he would not have survived it; and (6) Jennifer Peissel, now 62, who added little to what the other witnesses said.

On 27 November 2009, Sir Thayne Forbes, on a ‘without notice’ application and on consideration of the papers, granted an interim injunction restraining the implementation of the changes. The claim form, grounds and that order were served on ESCC on 30 November 2009. Rosemary Edwards, a carer at St David’s, made a witness statement on 4 December 2009, its thrust being directed at identifying incidents showing the importance of maintaining a system under which a warden would be on site at all times of every day.

ESCC served its grounds of opposition on 21 December 2009. They were (1) that the decision had been preceded by a full consultation, the most vulnerable tenants were transferred to Downlands Court, the decision was only taken after an assessment that the overall level of need that was required did not merit an on-site team and ESCC had been under no duty to carry out an Equality Impact Assessment (‘EIA’); (2) it was unarguable that ESCC had failed to take proper account of its section 49A duty; (3) ESCC did take account of the tenants’ contractual rights, which were in fact owed by LDC, not ESCC, and were only to use ‘best endeavours’. Although it had disputed any need to carry out an EIA, ESCC did then carry one out in April 2010. That, however, had no relevance to the decision of October 2009. It is accepted that ESCC was under no statutory duty to carry out an EIA before making that decision.

On 16 September 2010 Blake J refused Mr Tiller permission to apply for judicial review and discharged the interim injunction. He considered that ESCC’s response of 21 December 2009 had fully answered Mr Tiller’s case.

On 24 September 2010 Mr Tiller gave notice of a renewed application for permission to apply for judicial review, relying solely on the ground that ESCC had failed to discharge its ‘due regard’ obligations under section 49A(1) of the DDA. Following Blake J’s order, however, the old system – which had continued in place since the making of Sir Thayne Forbes’s order – had been discontinued and replaced in November 2010 with the new system, which has since continued to operate. On 15 March 2011 Collins J granted permission for an application for judicial review on the sole surviving ground. That was followed by evidence on 30 March 2011 from Mr Atkins and, on 4 April 2011, from Mr Bentley, the decision maker. The judge placed reliance upon, and I quote, paragraphs 2 to 4 of Mr Bentley’s statement:

Thirlwall J’s judgment

Thirlwall J heard the application on 27 May 2011 and delivered her reserved judgment on 29 June. She found that all the tenants at St David’s were elderly and had disabilities. She described the nature of the hybrid care that was provided there down to October 2009 (including the additional care package that each tenant had) and identified Downlands as a site where ‘extra care’ is provided. She described the nature of the change that ESCC decided upon in October 2009. She summarised the procedural history and explained how the old system had continued until November 2010. She said, in [10], that there was a dispute between ESCC and the tenants as to how well the new system worked but recognised, as had Mr Patel for ESCC, that it was ‘plain that the old system cannot be as good as the new one’, adding that:

The only point advanced on Mr Tiller’s behalf to the judge was ESCC’s alleged failure to have due regard to its obligations under section 49A(1) of the DDA. As to what ‘due regard’ in section 49A(1) meant, she cited paragraphs [82] to [84] of the judgment of the Divisional Court (Scott Baker and Aikens LJJ) in Brown v. Secretary of State for Work and Pensions [2008] EWHC 3158 (Admin);[2009] PTSR 1506, to which I shall come.

The judge cited from Mr Bentley’s statement and said:

The judge explained in some detail the process leading from the setting up of the Project Group in 2008 to the report of 12 October 2009 to Mr Bentley. She explained how the process was organised so as effectively to identify the needs and requirements of the tenants, all of whom were elderly and disabled; how all tenants were offered a full individual assessment of their needs; how all those who requested a move to Downlands Court were transferred there; how Mr Atkins wanted to achieve a more equitable use of funds across ASC, explaining at the November 2008 meeting of the Project Group that he would like the funds targeted to those in need across all sites for which ESCC was responsible, and not just St David’s; how, whilst the tenants raised concerns about the impact upon them of a reduced service, Mr Atkins recognised in January 2009 that, although he understood the concerns, it would never be possible to provide 100% safety to all tenants at all times, since every risk could not be catered for; how there was an assumption that the status quo at St David’s could not continue; how by February 2009 two options had been rejected, namely (i) removing all manager/support presence and (ii) maintaining the status quo; how the current scheme at St David’s cost three times per person more than the county average for a sheltered scheme and that, as there were so few tenants with high levels of need, such figures could not be justified. The judge set out the report to Mr Bentley in full.

Coming to her conclusions, the judge found that the tenants had been comprehensively assessed where this was desired; the assessments were acted upon; regard was had by ESCC to the concerns expressed in the consultation process; the most vulnerable tenants were transferred upon request to a site with higher level provision; steps were taken to address the concerns of those who remained, in the form of additional discussions and extra training in the telecare system; and ESCC recognised that small packages of additional care might be required following the implementation of the new system.

The judge asked what else ESCC should, or could, have done in discharging its ‘due regard’ obligation under section 49A(1). Mr Hutchings’ submission had been that it required a balancing exercise between the stated aims of promoting equality of opportunity, taking account of the disabled persons’ disabilities and the countervailing factors (the need to promote a more equitable use of limited resources and to save money). The judge said:

Contrary to Mr Hutchings’ submission, the judge held that ESCC had expressly recognised the adverse impact of the new system upon disabled people and that countervailing factors had prevailed. She concluded by saying:

The appeal

Guidance as to the section 49A(1) duties (identifying the authorities from which it was drawn) was provided in the judgment of the Divisional Court delivered by Aikens LJ in Brown, supra. The court explained, at [30], that the:

The court explained the general nature of the duties in [79] to [85]. In essence it was as follows: (1) the aim of the 2005 amendments to the DDA, including section 49A(1), was to make public authorities place disability equality for all at the centre of their organisation, policy making and functions; (2) the section 49A(1) duties are mandatory and require public authorities in carrying out their functions to have ‘due regard’ to the six listed ‘needs’; (3) the duty so imposed is not, however, a duty to achieve results, it is to have ‘due regard’ to the ‘need’ to achieve the identified goals; (4) ‘due regard’ means the regard appropriate in all the particular circumstances in which the public authority is carrying out its function as such; but at the same time, the authority must pay regard to any countervailing factors which, in the context of the function being exercise, it is proper and reasonable for it to consider; such factors will depend upon the particular function being exercised and all the circumstances that impinge upon it, and economic and practical factors will often be important; (5) the ‘needs’ identified in section 49A(1)(a) to (c), (e) and (f) are true goals, and so in discharging the duty, the authority must have a proper regard for the need to achieve these goals; (6) section 49A(1)(d) is different in that it requires the authority to have proper regard for the need ‘to take steps to take account of disabled person’s disabilities, even where that involves treating disabled persons more favourably than other persons’. That does not identify a goal which is an end in itself but does impose a duty to pay ‘due regard’ to the need to take steps to do two things which are means which will assist in the achieving of the goals identified in the other paragraphs of the subsection: (a) the authority must have ‘due regard’ to the need to take account of the fact of disabled persons’ disabilities in the context of the carrying out of its functions; and (b) it must have ‘due regard’ to the need to recognise that this may involve treating disabled persons more favourably than others. To do both these things, the authority will have to have regard to the need to take steps to gather relevant information in order that it can properly take steps to take into account disabled persons’ disabilities in the context of the function under consideration.

That, then, is the theory that the Divisional Court explained as underlying the section 49A(1) duties. The court then, at [90] to [96], offered views as to how they should be discharged in practice. This was in essence as follows: (1) the public authority taking decisions that do or might affect disabled persons must be made aware of the duty to have ‘due regard’ to the identified goals – and an incomplete or erroneous appreciation of the duties will mean that ‘due regard’ has not been given to them; (2) the ‘due regard’ duty must be fulfilled before and at the time that a particular policy that will or might affect disabled people is being considered; it involves a conscious approach and state of mind; (3) the duty must be exercised in substance, with rigour and an open mind; it must be integrated within the discharge of the public functions of the authority; and it is not a question of ‘ticking boxes’; the fact, however, that the authority has not mentioned section 49A(1) specifically in carrying out a particular function is not determinative of whether or not the duty has been performed, but it is good practice for the policy or decision maker to make reference to the provision and any code or other non-statutory guidance in all cases where section 49A(1) is in play; (4) the duty is a non-delegable duty; (5) it is a continuing duty; and (6) it is good practice for those exercising public functions in public authorities to keep a record showing that they had actually considered their disability equality duties and pondered relevant questions; this will encourage transparency and will discipline those carrying out the functions to undertake their disability equality duties conscientiously.

Neither counsel questioned the soundness of the guidance in Brown, nor do I.

Turning to the facts of the present case, I understood Mr Hutchings, for Mr Tiller, to accept that a thorough consultation process with all interested parties had been carried out by the Project Group. That had revealed that there were real concerns as to the effect of the proposed changes on the St David’s tenants and opposition to the proposed changes from certain quarters. Such concerns and opposition were reflected in the minutes of the meetings. The effect of the changes would be that, during those periods where no warden service was on site, the response times to any problems would be longer; and there would be no-one on site checking on the tenants. As the judge recorded, ESCC had accepted that there would be disadvantages to the tenants under the new regime, which could not be as good as the prior one.

Mr Hutchings’ point, however, was that the fruit of the learning obtained by the Project Group (and by those ESCC officers who were members of it) as to the problems posed by the proposed changes, and as to the tenants’ concerns, was immaterial. The Project Group was not the decision maker. The decision maker was Mr Bentley, who was not a member of the Project Group and was not provided with any of its minutes. The Project Group’s knowledge cannot be attributed to him; and the knowledge that it had that was not communicated to him is not in point. The judge’s error, said Mr Hutchings, was to fall into the trap of treating information known to ESCC officers via the consultation process as being before Mr Bentley. Mr Hutchings referred to [40] of the judge’s judgment, of which I have cited the relevant part.

Mr Hutchings’ submission was that the problem in this case was therefore not that the Project Group did not perform a thorough consultation exercise. It was that the report of 12 October 2009 provided Mr Bentley with inadequate information about (i) the impact upon the tenants of the proposed change (the increased response time and the lack of anyone on site to deal with particular problems) and (ii) the tenants’ expressed concerns. In consequence he did not have the material necessary to enable him to carry out the balancing exercise that he was required to perform in discharge of his section 49A(1) duty, the ‘need’ of particular relevance in the present context being the section 49A(1)(d) need. Whether the ‘due regard’ duty has been discharged by a public authority is a question of substance. Mr Hutchings submitted that it requires an analysis of the material available with the specific statutory provisions in mind, whereas that did not happen.

More particularly, Mr Hutchings submitted that the report to Mr Bentley was dismissive of the concerns of the tenants and their carers. Its key paragraphs were paragraphs 2.5 and 2.6, of which he said the former was essentially introductory and the latter materially underplayed the strength of the expressed level of concern. It was critical that Mr Bentley, as the decision maker, should take into account the two key consequences of the proposed changes – the increased response times and the lack of anyone on site overnight and at weekends to deal with particular problems – whereas they were not expressly identified for his consideration. A reference to generalised concerns, such as in paragraph 2.6, was insufficient. Mr Bentley had to discharge his duty under section 49A(1)(d) with rigour but was not provided with the core information enabling him to do so. Whilst Mr Hutchings did not suggest that the omission in Mr Bentley’s decision of an express reference to the section 49A(1) duty was fatal, he did submit that the court could not be satisfied that Mr Bentley could or did properly discharge that duty. He said that Mr Bentley’s reasons for his decision contained an insufficient analysis of the relevant considerations.

Mr Hutchings placed particular reliance upon the decision of this court in Regina (Harris) v. Haringey London Borough Council (Equality and Human Rights Commission intervening) [2011] PTSR 931. There the Council had granted planning permission for a substantial development involving the demolition of existing buildings and the erection of mixed use developments in an area with business units and homes predominantly occupied by members of black and ethnic minority communities. The judge refused the claimant’s application for judicial review of the Council’s grant of planning permission. In the Court of Appeal, the only surviving ground of challenge was based on section 71(1)(b) of the Race Relations Act 1976, which required the Council when considering the planning application to ‘have regard to the need … to promote equality of opportunity and good relations between persons of different racial groups’. In assessing the Council’s claim that it had discharged that duty, Pill LJ (in a judgment with which Arden and Sullivan LJJ agreed) recognised that the duty to have ‘due regard’ involved a ‘conscious approach and state of mind’ (words taken from the judgment in Brown, supra, at [91]). Before taking the planning decision, the Council had conducted an appropriate consultation exercise and the officers’ report to the appropriate planning committee had been very full and had referred to the representations made. Whilst Pill LJ, at [27], commended the thoroughness of the report, including its focus on regeneration and of concern for the future of displaced market traders, he could not find ‘any focus on the substance of the section 71 duty when the complex issues to be decided by the council’s committee are set out and debated’. In giving his reasons why the appeal should be allowed, he said:

In the present case also, Mr Hutchings submitted that likewise the required analysis was simply not made. Whilst he accepted that the decision that Mr Bentley had to make was a relatively simple one, it still required him to identify the adverse impacts that the changes posed for the tenants and weigh them against the countervailing considerations. He provided no such analysis.

Cogently though Mr Hutchings advanced his submissions, I was not persuaded by them. He was entitled to say that both the report to Mr Bentley and his reasons for accepting its recommendations were succinct. I do not, however, accept that there was a failure on Mr Bentley’s part to discharge his section 49A(1) duty, nor as follows do I consider that the decision in Harris compels a different conclusion.

The circumstances in Harris were, I consider, materially different from those of the present case. The decision for the council in Harris required it to take into account a variety of considerations, of which its duty to have ‘due regard’ to the section 71 considerations was just one, albeit a very important one. This court was not satisfied that it had had the requisite regard. I consider, however, that Mr Patel, for ESCC, was right in this context to refer us to the decision of the Supreme Court in Regina (McDonald) v. Kensington and Chelsea Royal London Borough Council (Age UK Intervening) [2011] PTSR 1266, in particular to the judgment of Lord Brown of Eaton-under-Heywood JSC, at [23] and [24]. That was in the part of his judgment dealing with an issue arising under section 49A with which the other justices in the majority agreed. Lord Brown said:

Those observations shed in my view a relevant light on the approach we should adopt to Mr Bentley’s decision. The particular context in which he was being asked to make it was, as the judge found, exclusively concerned with the interests of elderly and disabled people. The decision recommended to him was exclusively about reducing the level of service they had previously enjoyed and replacing it with a substitute service that was obviously not going to be as good. It was obvious to anyone, and in particular to Mr Bentley (the lead cabinet member of ASC), that the effect of the changes would be that there would be increased response times and periods when no warden was on site. The whole point of the recommendations was to propose cost-saving changes that would have those consequences. The report before him reflected that which the consultation had revealed, namely that some tenants, their carers and relatives had expressed concerns as to how the tenants’ needs would be managed in the future (paragraphs 2.6 and 3.3). Paragraph 3.2 explained how most of the tenants with higher levels of need or concerns had been offered accommodation at Downlands Court. That told Mr Bentley that some tenants with such higher needs would be remaining at St David’s. The second sentence of paragraph 3.3 explained how, under the proposed changes, the tenants’ needs would be managed in the future. Mr Bentley would have known that the tenants had been assessed in order to determine whether they needed the individual care services referred to. His evidence showed that he was fully aware of the factual background to the decision and of ESCC’s duties under the DDA and its Disability Equality Scheme. His reasons for his decision showed that he understood that the purpose of the changes was to achieve costs savings; that he understood that concerns about the management of future needs had been expressed; and that he was satisfied that revised proposals for the provision of such needs would meet them.

I accept that the report could have been fuller. I accept that Mr Bentley’s reasons for accepting its recommendations could, and perhaps should, also have been fuller. In particular, as was said in Brown, at [96], it would have been good practice for him to have made an express reference to the section 49A(1) duties and to explain how he had discharged them. In the narrow factual context, however, in which the only issue before him was the balancing of the ESCC’s wish to save costs against the change in the nature of the care that was proposed to be provided in future to the St David’s disabled tenants, I consider that the judge was entitled to come to the conclusion that she did in [44] and [45] of her judgment. The impact of the proposed changes on the tenants was obvious and was apparent from the report. It was not surprising that the tenants had, and had voiced, concerns, and that was also reflected in the report. It did not, however, follow that a 24/7 on site service was needed. The report explained the alternative services that were to be provided and that they were viewed as sufficient; and it explained the costs savings of the proposed changes. Mr Bentley was the lead cabinet member of ASC, he was aware of ESCC’s obligations under the DDA and his reasons for his decision show that he was satisfied that the alternative proposed arrangements would provide the tenants with sufficient support and care. I consider that the judge was entitled to conclude that ESCC’s section 49A(1) ‘due regard’ duty, in particular with regard to the section 49A(1)(d) ‘need’, had been discharged.

I would dismiss the appeal.

Rajput and Shamji v. London Borough of Waltham Forest

I turn to the other appeal before us. Both appellants are disabled. Dr Rajput is a demented wheelchair user. Mr Shamji is mentally able but has a serious spinal cord injury. On 9 March 2010 the Cabinet of the respondent, the London Borough of Waltham Forest (‘the Borough’), resolved to close the Crownfield Road day centre in Stratford. It provided an alternative day centre at Morley Road, Walthamstow. The appellants’ factual complaint is that the alternative is inferior in three respects: (i) for many users, it involves a much longer journey, in excess of an hour, causing physical discomfort and inconvenience; (2) it has no adequate prayer room facility, as it lacks proper washing facilities required for Muslim observance; and (3) it has only one leisure room, which those with only physical disabilities have to share with those with mental disabilities. The appellants recognise, however, that it is not enough to show that they disagree with the Borough’s decision. They have to show that its making was flawed.

Before making the decision, the Borough’s Cabinet had before it a very full report, which attached an EIA, and which included an express reference to the duty upon the decision makers to ‘to promote the interests of disabled people’, describing such duty in terms that plainly had section 49A(1) of the DDA in mind although without expressly referring to it. The appellants’ complaint is, however, that the report nevertheless failed to flag up any specific potential disadvantages to disabled people using the Crownfield centre but instead made what is said to be the unwarranted assumption that all the potentially negative impacts of the change were being successfully addressed on a case by case basis. It is acknowledged that, had a full explanation of the potential adverse impacts been placed before the Cabinet, it might have found them to be outweighed by other factors. But as they were not, it is said that the duty imposed upon the Cabinet by section 49A(1) was not properly carried out, in particular its duty to have regard to the section 49A(1)(d) need. That required the Borough to face up to the negative impacts upon disabled people of the making of the proposed decision, to gather all necessary information about them and, in performing its ‘due regard’ duty to have regard to ‘the need to take steps to take account of disabilities, even where that involves treating disabled persons more favourably than other persons’. The essence of the complaint, which is said to be perhaps best reflected in paragraph 4.2 of the EIA, is that the Borough instead simply proceeded on the basis of an unwarranted assumption that all negative impacts of the proposed decision could be sufficiently mitigated.

Calvert-Smith J, in a short judgment delivered on 21 January 2011, was unimpressed by the appellants’ argument and rejected it summarily. As this appeal was in the nature of a permission application, we did not hear extensive argument on the merits of the appellants’ case. For myself, however, I would accept that it does raise a properly arguable point that, subject to the next consideration, justified the giving of permission for a judicial review. That consideration was advanced by Mr Greatorex as being in the nature of a ‘knock out blow’ to the giving of the requested permission.

The point is this. Paragraph 2 of Calvert-Smith J’s order of 21 January 2011 discharged the Borough’s undertaking of April 2010 to give 14 days’ notice to the appellants’ solicitor of any proposed physical change or future use of the Crownfield centre that would prejudice its future use as a day centre. There was thereafter no bar to the closing of the Crownfield site as a day centre, which happened in March 2011. The site has since been devoted to its present use as one of three Resource Centres to be located in the Borough and has been fully operational since 14 July 2011. More than £176,000 has been spent on refurbishing it. No works have been carried out that would render it incapable of being physically converted back to its former use a day centre, but any such change would disrupt the licences of service providers who have been contracted to provide their services from the site. All that is explained in a witness statement of 27 October 2011 by Susan Anderson-Carr, the Borough’s Divisional Director of Strategic Commissioning.

As for the progress of the appellants’ appeal against Calvert-Smith J’s order, the appellant’s notice was required by CPR Part 52.15 to be filed by 28 January 2011 but was in the event not filed until 11 February, some two weeks late. Although the notice describes itself as having been filed by Hossacks, who were named in it as the appellants’ solicitors, the reason for the delay given in the notice was that they were no longer authorised by the Legal Services Commission to conduct publicly funded matters and no alternative solicitors had been found to act for the appellants. In the event Blavo & Co (‘Blavo’) took on the case for the appellants and their Kristin Heimark explained in a witness statement of 28 March 2011 that it was they who had actually filed the appellant’s notice. The appellant’s notice sought no stay of any proposed change of use of the Crownfield site pending the disposal of the permission application. The appellants’ skeleton argument for the appeal was only produced on 25 March 2011 and also did not ask for a stay. Arden LJ, on 9 June 2011, extended the appellants’ time for appealing and granted permission to appeal.

Following Arden LJ’s order, the Borough wrote on 17 June 2011 to Blavo suggesting that the appeal would now appear to be academic – an implicit reference to the change of use of the Crownfield site that had taken place – and asked them what remedy the appellants considered would be achieved as a result of the appeal. Blavo did not reply to that letter. On 21 July 2011 the Borough wrote again to Blavo pointing this out and explaining as follows:

No reply to that letter was received either. The Borough wrote further to Blavo on 30 August 2011 as to the time estimate for the forthcoming appeal. Blavo replied on 8 October 2011, also referring the Borough to the skeleton argument for the answer as to the appellants’ objectives in the appeal. That did not, however, deal with the remedy that was sought now that the Crownfield site had been closed.

Mr Greatorex’s submission for the Borough was that even if (which he disputed) the appellants have, or had, an arguable case on the merits, their case - and thus the appeal - have anyway now become academic because of the appellants’ inaction and delay and the change of use to which the Crownfield centre has this year been devoted. The appellants were not apparently suggesting that the decision of 9 March 2010 was not one that the Borough could lawfully take. The most that they might therefore hope to obtain if the judicial review claim were to succeed would be a quashing of that decision and a reconsideration of the proposal to close the Crownfield centre. That would, however, be a futile exercise because as the centre has been re-established as a resource hub, upon which substantial money has been spent, there could be no practical prospect of the court being prepared to grant the appellants any remedy of practical benefit. That is a position for which the appellants were responsible. They chose to take no steps pending their proposed appeal to stay the closure of the centre or the incurring by the Borough of the refurbishment expenditure.

Mr Hutchings’ response was to refer to (in particular) the third and fourth quoted paragraphs of the letter of 21 July 2011 and to paragraphs 7 and 8 of Ms Anderson-Carr’s statement, which were as follows:

Mr Hutchings accepted that the appellants must recognise that it may be that an order on a successful judicial review application could not lead to the achieving of the restoration of the whole of the Crownfield centre to its former use. He submitted, however, that there is no reason why, if the original decision of 9 March 2010 to close the Crownfield Road centre were to be quashed and its proposed closure were required to be re-considered, they could not hope at least to achieve on such re-consideration a result by which the ‘meeting rooms that have been retained as a communal resource’ could be restored to the former users of the Crownfield centre who had a particular difficulty in travelling to the Morley site. Mr Greatorex had suggested that, were the appeal to be dismissed, it would anyway be open to the appellants to ask the Borough to re-devote the available rooms at Crownfield road to a day centre for them. But Mr Hutchings’ rejoinder to that was that any such request would itself be likely to be futile: the Borough could, and would be likely to respond that, the appeal having been dismissed, the decision of 9 March 2010 stood unchallenged and unchallengeable; and it was one by which the Borough had lawfully resolved to close the Crownfield road day centre. Thus, he said, the further prosecution of the judicial review claim was not academic.

In my view, Mr Greatorex is in substance correct. To say the appeal is rendered ‘academic’ may be to put it too high. It is unlikely, but perhaps not impossible, that if the decision of 9 March 2010 were to be quashed the Borough might be persuaded to take a different view, notwithstanding the expense involved. That, however, is not the end of the matter. Judicial review is a discretionary remedy. In deciding whether to grant permission, the court is entitled to look at the case overall, and in doing so to take account of any lack of urgency by the claimants in pursuing their case and any detriment to good administration caused by their failure to do so (see section 31(6) of Senior Courts Act 1981).

In this case, the essence of the appellants’ complaint is that, in making the original decision, the Borough assumed, without adequate explanation, that any negative impacts of the closure decision could be mitigated in other ways. Once Calvert-Smith J had discharged the Borough’s undertaking of April 2010, it should have been apparent to the appellants, or their advisers, that the Borough was likely to proceed with its plans, and the options for dealing with any unmet needs would narrow. In July the Borough made a wholly reasonable request for an explanation of the purpose of proceedings. It received no answer. There was accordingly no opportunity for it to reconsider what if any “negative impacts” would remain unmet, or to consider how to deal with them. There was no explanation or excuse for that failure to respond, which continued up until the hearing.

Although there was no “undue delay” in making the original application, there was undue and unexplained delay in responding to the new situation resulting from the discharge of the undertaking. That has undoubtedly been prejudicial to good administration and, in my view, it justifies us in confirming the refusal of permission.

I would dismiss the appeal, and refuse permission to apply for judicial review.

I agree.

I also agree.