Buckinghamshire County Council v Royal Borough of Kingston Upon Thames

This is an appeal against a decision of Wyn Williams J in a judgment dated 12 July 2010 whereby he refused an application by Buckinghamshire County Council (“the appellants”) to declare unlawful a decision of the Royal Borough of Kingston upon Thames (“the respondents”) to move SL from residential accommodation provided by the National Society for Epilepsy (“NSE”) into accommodation at 52 The Lagger, Chalfont St Giles, Buckinghamshire. The judge granted permission to appeal. By her litigation friend the Official Solicitor, SL appears as an interested party as does the NSE and the Secretary of State for Health (“SSH”). All three interested parties were represented before the judge; only SL is represented before this court.

SL is now 36 years old and came to the United Kingdom from Uganda in 1988. She suffers from epilepsy and has learning difficulties. School placements were arranged by the respondents and, in 1995, a placement at a care home known as Stanley Maude House, Chalfont St Peter, Buckinghamshire. The accommodation is owned and operated by NSE and NSE had provided services there to persons suffering from epilepsy for many years. It is a centre of excellence for that purpose. In 2004, SL moved from Stanley Maude House to Hampshire House, another care home at the NSE Centre. The object was to allow her greater independence.

An annual review was conducted by the respondents in January 2009. SL expressed the wish to move into “supported living with friends”. She had already visited a bungalow 2 or 3 miles from Hampshire House and the possibility of her moving into the bungalow with two other persons was considered. Policy in recent years has been to encourage disabled adults, where possible, to move from care homes into supported housing. SL moved into the bungalow which is owned by Zetetick Housing, a registered charity, and at present occupies it under an assured shorthold tenancy. The NSE continued to provide care through its domiciliary care agency STEPS.

Initially, the respondents funded that care but in November 2009 sought to transfer responsibility to the appellants. Following correspondence, and a pre-action protocol letter, the present claim was instituted by the appellants on 9 February 2010, based on the respondents’ proposal to transfer responsibility from 1 January 2010. It was claimed that the decision to move SL from Hampshire House into the bungalow was unlawful.

During the many years that the respondents had placed SL in NSE accommodation, they had exercised powers under section 21 of the National Assistance Act 1948 (“the 1948 Act”). During that time, the respondents retained liability to pay for the residential accommodation by virtue of a deeming provision in section 24(5) of the 1948 Act, SL having been “ordinarily resident” in the respondent borough “immediately before the residential accommodation was provided for [her]”.

If the transfer was lawful, SL became ordinarily resident in Buckinghamshire and the appellants became responsible for providing her with visiting care services (section 29 of the 1948 Act). Whereas at the care home, SL was deemed to remain ordinarily resident in Kingston, on removal to her own accommodation under supported housing arrangements, she became ordinarily resident in Buckinghamshire. SL is herself responsible for her accommodation, with funding through housing benefit if necessary, but the appellants become liable for community care services under section 29 of the 1948 Act (Manchester CC v St Helens BC [2009] EWCA Civ 1938). That is common ground. That there is a statutory allocation of duties as between authorities concerned with health care needs was confirmed in an earlier Manchester City Council case, R (on the application ofSt Helens Borough Council) v Manchester Primary Care Trust [2008] EWCA Civ 931 (May and Scott Baker LJJ, Sir Peter Gibson).

Accepting that the effect of the respondents’ decision, if lawful, is to make the appellants responsible for arranging and funding SL’s community care provision, the appellants submitted that the respondents’ unilateral actions were unlawful. They had a duty to act fairly towards the appellants when taking decisions about SL that would have significant and important consequences for the appellants. The respondents should have consulted with them before taking a decision so that, for example, the appellants could provide them with relevant information on issues particular to its area. At the hearing, the claim was refined to a claim that the respondents were in breach of their duties to SL in failing to consult or to notify the appellants about the decision they proposed to take in relation to her, as service user. Performance of these duties comprehended a duty to consult the appellants.

The appellants sought a declaration that the decision to move SL was unlawful and a declaration that the respondents indemnify them for any expense occurred in consequence of that unlawful decision. They do not seek the quashing of the order. A declaration that authorities in the position of the respondents are under a duty to consult the appellants would be sufficient, they submitted. Local authorities could be assumed to act lawfully upon guidance given. The appellants would also act lawfully and sensibly upon being consulted, it was submitted.

The duty to carry out the assessment of SL’s needs, which led to the decision to transfer, was imposed on the respondents by section 47 of the National Health Service & Community Care Act 1990 (“the 1990 Act”). That provides, in so far as is material:

“(1)

. . . where it appears to a local authority that any person for whom they may provide or arrange for the provision of community care services may be in need of any such services, the authority—

(a)

shall carry out an assessment of his needs for those services; and

(b)

having regard to the results of that assessment, shall then decide whether his needs call for the provision by them of any such services.

(2)

If at any time during the assessment of the needs of any person under subsection (1)(a) above it appears to a local authority that he is a disabled person, the authority—

(a)

shall proceed to make such a decision as to the services he requires as is mentioned in section 4 of the Disabled Persons (Services, Consultation and Representation) Act 1986 without his requesting them to do so under that section; and

(b)

shall inform him that they will be doing so and of his rights under that Act.

(3)

If at any time during the assessment of the needs of any person under subsection (1)(a) above, it appears to a local authority—

(a)

that there may be a need for the provision to that person by such Primary Care Trust or Health Authority as may be determined in accordance with regulations of any services under the National Health Service Act 1977, or

(b)

that there may be a need for the provision to him of any services which fall within the functions of a local housing authority (within the meaning of the Housing Act 1985) which is not the local authority carrying out the assessment,

the local authority shall notify that Primary Care Trust, Health Authority or local housing authority and invite them to assist, to such extent as is reasonable in the circumstances, in the making of the assessment; and, in making their decision as to the provision of the services needed for the person in question, the local authority shall take into account any services which are likely to be made available for him by that Primary Care Trust, Health Authority or local housing authority.

(4)

The Secretary of State may give directions as to the manner in which an assessment under this section is to be carried out or the form it is to take but, subject to any such directions . . ., it shall be carried out in such manner and take such form as the local authority consider appropriate.”

The judge found, at paragraph 50:

“Having weighed all the factors which are relevant to the issue, I have reached the conclusion that the Defendant was under no duty to act fairly towards the Claimant either in the course of carrying out its assessment of SL under section 47 or before making any decision consequent upon that assessment.”

The judge found against the respondents on a second issue which was whether they should have undertaken further enquiries about whether housing benefit would be paid in respect of the proposed tenancy at 52 The Lagger and, if payable, how much would be paid. That issue is not directly relevant in the appeal though it may have some indirect relevance on the issue raised. For the appellants, Mr Clayton QC expressed the appellants’ concern about the implications of the decision because of the considerable number of people who have, and are likely, to be relocated, from NSE into tenanted accommodation in Buckinghamshire. Most will have been placed at NSE from local authorities other than the appellants. The cost to the appellants will be very substantial. It was expressly disclaimed on behalf of the appellants that the financial impact is a reason for imposing a duty to consult.

Referring to the absence in section 47 of a specific requirement to consult the appellants, Mr Clayton submitted that there was nothing in the section which cut across the need to consult the appellants. The common law duty to act fairly towards the appellants was based on the statement of Lord Mustill in R v Secretary of State for the Home Department Ex parte Doody [1994] 1 AC 531, at 560. Lord Mustill stated:

“What does fairness require in the present case? My Lords, I think it unnecessary to refer by name or to quote from, any of the often-cited authorities in which the courts have explained what is essentially an intuitive judgment. They are far too well known. From them, I derive that (1) where an Act of Parliament confers an administrative power there is a presumption that it will be exercised in a manner which is fair in all the circumstances. (2) The standards of fairness are not immutable. They may change with the passage of time, both in the general and in their application to decisions of a particular type. (3) The principles of fairness are not to be applied by rote identically in every situation. What fairness demands is dependent on the context of the decision, and this is to be taken into account in all its aspects. (4) An essential feature of the context is the statute which creates the discretion, as regards both its language and the shape of the legal and administrative system within which the decision is taken. (5) Fairness will very often require that a person who may be adversely affected by the decision will have an opportunity to make representations on his own behalf either before the decision is taken with a view to producing a favourable result; or after it is taken, with a view to procuring its modification; or both. (6) Since the person affected usually cannot make worthwhile representations without knowing what factors may weigh against his interests fairness will very often require that he is informed of the gist of the case which he has to answer.”

The good faith of the respondents in making the assessment of SL which led to the transfer is not questioned and neither is their good faith in attempting to give effect to SL’s wish to move into accommodation outside Hampshire House. Equally, the respondents do not challenge the ability of the appellants, had the roles been reversed, to make an adequate assessment.

Mr Clayton submitted that the duty existed because of the need for the appellants’ involvement in the assessment of the needs of SL. The duty did not exist, it was submitted, for all assessments under section 47 but existed where the local authority were dealing with highly vulnerable people where there could be different views about their mental capacities and where the local authority plays a direct role in the placement. As the relevant local authority for Buckinghamshire, the appellants could, for example, provide advice about transport arrangements in rural parts of the county. They could liaise with the housing authority for the relevant part of the county, in the present case Chiltern District Council (“Chiltern”). Local government has two tiers in Buckinghamshire, some duties, including those under section 29 of the 1948 Act being on the County Council, others, such as those under the Housing Act 1996, being upon District Councils.

The dispute which had arisen as to the level of housing benefit payable by Chiltern to SL, and the judge’s finding about the respondents’ lack of enquiry, demonstrated the need for the appellants’ involvement, it was submitted. The appellants had been left with a responsibility without having been involved in the decision making process. Upon consultation, decisions about SL as service user could be taken on the basis of better information.

Mr Clayton submitted that the judge’s decision created a very strongly counter-intuitive feeling. The effect of the transfer was to impose legal obligations on the appellants immediately. The court should read into the statutory scheme a duty to consult the appellants, and conscientiously to take their representations into account, before taking the decision to transfer. Prior consultation is encouraged by the Secretary of State who, in written submissions to the judge, stated:

“The Secretary of State wishes to encourage such consultation, so that placing authorities can inform host authorities of action proposed to be taken, host authorities can provide the benefit of their local knowledge as part of the decision-making process, and both can work together to ensure that any provision and placement is suitable.”

No view was expressed by the Secretary of State in that statement as to whether the claimed duty arose.

Reliance was placed by Mr Clayton on the decision of this court in R (On the application of Litchfield Securities Limited) v Litchfield District Council [2001] EWCA Civ 304. That was a challenge against a decision by the local planning authority to enter into an agreement under section 106 of the Town & Country Planning Act 1990, when granting a planning permission for the development of land. It imposed a specified planning obligation on the other party. Another company objected to the terms of the agreement and to the failure of the authority to consult them. The decision is, in my judgment, of no help to the appellants. In the judgment of the court, given by Sedley LJ, it was stated, at paragraph 19:

“. . . it is with the local planning authority that legal responsibility for fair public administration rests and [the authority’s] task, principally through its officers, was to ensure that neither party acquired an inside track, whether by spurious reliance on commercial confidentiality or through a special negotiating relationship.”

As a dispute between parties each with an interest in land, it has no bearing upon the present situation.

Each of the parties submitted further evidence, which the court has considered. It is common ground that SL now wishes to return to Kingston upon Thames so that she can be near her family. The respondents propose to give effect to those wishes and would thereupon reassume responsibility for her under the 1948 Act. The court indicated that, notwithstanding the proposed change, which would end the present dispute, it was prepared to accede to the appellants’ request that the appeal be determined.

For the respondents, Mr Knafler QC submitted that the statutory scheme in section 47 of the 1990 Act, while providing for consultation with a Primary Care Trust or Health Authority, and with a local housing authority, makes no provision for consulting the County Council. Moreover, the Secretary of State is empowered under section 47(4) to give directions as to the manner in which an assessment under the section is to be carried out and the voluminous guidance issued does not include a direction or suggestion that the host County Council should be consulted by the assessing local authority.

There was a difference, it was submitted, between the collaborative working contemplated by the Secretary of State, in his statement of evidence, and a duty to consult in the sense advocated by the appellants. Their requirement was stated by Ms Lally, the appellants Strategic Director for Adults and Family Wellbeing, in her statement of 10 February 2010. At paragraph 51, Ms Lally stated:

“51.

. . . As a result the Council was prevented from contributing to that decision, either by assisting in or commenting upon the assessment undertaken or by undertaking its own assessment. The Council was therefore unable to:

•

Form its own view as to whether the individual was sufficiently independent to make the move from residential accommodation into supported living.

•

Ensure that the individual (or his family or carer) has been properly consulted.

•

Ensure that the process has been informed by or taken advantage of the Council’s knowledge of local provision and services.

•

Ensure, where appropriate, that the individual had the option of an independent advocate.

•

Ensure, where appropriate, that an assessment of the individual’s capacity was carried out to ensure that he or she had the capacity to make decision about where he or she wishes to reside, and with whom, or to enter into a tenancy agreement.

•

Ensure, where an individual did not have capacity, that a best interests assessment was undertaken.

52.

Secondly, the Council would want to consider whether there has been any change in the care needs of the individual at the date of the move. The critical question is whether there has been a significant change in the resident’s community care needs such that he or she no longer needs section 21 accommodation; and the failure to engage the Council in the process means that the Council has been deprived of any opportunity of assessing whether and to what extent a resident has progressed before leaving the NSE.”

What the appellants contemplated was also set out in a letter dated 14 May 2010 in relation to another client. It included the following statements:

“3.

We wish to carry out our own community care assessments of [X]. The purpose of the assessment would be to determine whether she has needs that call for the provision of the services currently being provided.

4.

In order to carry out the assessment, we require copies of the following to be forwarded for [X]

(i)

Updated Community Care Assessment

(ii)

Care Plan

(iii)

Tenancy Agreement

(iv)

Mental Capacity Assessment

(v)

Full details of the current care providers including current costs of the care package

After a full investigation, Buckinghamshire will determine whether or not to accept responsibility for ongoing funding of [X] community care package on the basis of his/her ordinary resident in our area.”

Mr Knafler referred to the evidence that demonstrated the care with which the respondents had conducted the assessment of SL, and their continued monitoring of the situation. That is not now in issue.

Mr Knafler referred to R (on the application of London Borough of Hillingdon & Ors) v The Lord Chancellor & Anr [2008] EWHC 2683 (Admin). Several local authorities argued that the Lord Chancellor could not increase court fees for public law child case applications without prior consultation with them. Giving a judgment with which Bennett J and Pitchford J agreed, Dyson LJ, at paragraph 38, stated:

“I am aware of no authority for the proposition that, where Parliament has prescribed the nature and extent of consultation, a wider duty of consultation may exist at common law (in the absence of a clear promise or an established practice of wider consultation by the decision-maker).”

Dyson LJ considered the difficulties that would arise as to who should be consulted if a duty to consult were to be established. He stated, at paragraph 42:

“These are difficult questions. They raise matters of public interest. Where Parliament has decided, the courts should not enter the arena and impose a different duty of consultation.”

Wyn Williams J stated, at paragraph 32 of his judgment in the present case:

“All that said the statutory language certainly does not assist Mr Clayton's argument. Parliament has specified circumstances in which an authority exercising its power under section 47(1) must notify another authority of the exercise of the power and permit the other authority to participate in an assessment (subsection (3)); just as importantly, it has reserved to the Secretary of State a power to make directions which can be used to impose upon a local authority a duty to notify or consult with other local authorities in appropriate circumstances. In my judgment, the express provisions contained within sub-sections (3) and (4) are powerful indicators that the courts should be slow to accept the existence of the duties for which the Claimant contends.”

The judge reached that conclusion, having accepted, in a previous paragraph, the statement of Lord Bingham of Cornhill in R (West) v Parole Board [2005] 1 WLR 350 at paragraph 29:

“But the maxim expressio unius exclusio alterius can seldom, if ever, be enough to exclude the common law rules of natural justice, . .”

In R (on the Application of Easyjet Airline Company Limited) v Civil Aviation Authority & Anr [2009] EWCA Civ 1361 Easyjet challenged, for failure to consult, the Civil Aviation Authority’s (“CAA”) decision under the Airports Act 1986 to modify limits on airport charges. The CAA submitted that its duties to consult were those spelt out in regulation 12 of the Civil Aviation Authority (Economic Regulation of Airports) Regulations 1986. Dyson LJ, with whom Maurice Kay LJ and Rimer LJ agreed, stated, at paragraph 45:

“I incline to the conclusion that the discharge of the regulation 12 obligation would be sufficient to meet the requirements of fairness for the following reasons. First, the fact that the Secretary of State has prescribed the scope of its obligation to consult is a relevant factor, although I accept that it is by no means decisive, since ultimately whether a process is fair is a matter for the courts to decide. Secondly, the CAA is a statutory regulator in the field of economic regulation in the general interest of all those who use Gatwick airport. The need to give the right to affected or interested parties to make full representations is less pressing in this context than it is in other contexts where the decision affects the fundamental rights of individuals such as, for example, the liberty of the subject, the right to receive publicly-funded accommodation, health treatment or education or a benefit (such as a licence) which affects a person's livelihood. Thirdly, the CAA is not acting as a judicial or quasi-judicial body adjudicating between competing claims. It is not its role to balance the airlines' interests against those of BAA. Rather, it must carry out its own investigation and make an objective assessment of the level of charges which, in its judgment, is most appropriate to achieve the statutory objectives. It conducts its own investigations with its specialist staff and is assisted by the work done by the CC [Competition Commission] and has to act in the manner which it considers is best calculated to achieve the goals stated in section 39(2) of the 1986 Act. Fourthly, in the light of the foregoing, the requirements of fairness are satisfied by giving all affected or interested parties the opportunity to make written representations on the conditions or modifications that the CAA intends to make (after conducting its own investigations and taking account of a CC report) within 30 days of publication of the proposals.”

The case is cited for consideration of those guidelines: the Court did not in the event reach a firm conclusion on whether discharge of the regulation 12 obligation would be sufficient to satisfy the requirements of procedural fairness because it decided that “the consultation process as a whole” was fair.

Mr Knafler submitted that, as in the case of the CAA, the respondents were not “acting as a judicial or quasi judicial body adjudicating between competing claims”. The statutory duty on the respondents and only the respondents, was to carry out their own investigation and make an objective assessment of the needs of SL and the most appropriate way to meet them. In reply, Mr Clayton relied on the opportunity, in the CAA case, for interested parties to make written representations, an opportunity not available to the appellants who were unaware of the decision until after it had been taken. Unlike the present case, however, the statutory scheme under regulation 12 did provide for written representations.

Mr Knafler submitted that swift decisions were required in this context. The fundamental concern was for the interests of the service user. Consultation could involve disadvantage to those interests and a duty to consult should not be imposed on the respondents.

For SL, Miss Greaney supported the submission of Mr Knafler. She accepted that there could be real benefits from an exchange of information between authorities in the position of the respondents and the appellants, as host authority with knowledge of the local area. A duty should not, however, be imposed on the respondents. There was a danger that the focus would not then be on the interests of the service user. There would be delay and a danger of satellite litigation, especially if another authority attempted to enforce a legal duty imposed on the respondents. While the appellants claim that only in a limited range of cases would the duty arise, it would be difficult to set boundaries. In any event, there was no basis for distinguishing between one category of service user and another. The concerns of the interested party were increased by the contents of the appellants’ letter of 14 May 2010 and by a letter from the appellants to the NSE which appeared to be asking the NSE “to put a stop on moving clients into supported living in the Buckinghamshire area”.

In reply, Mr Clayton submitted that no distinction could properly be drawn between consultation with Chiltern, as housing authority, and consultation with the appellants. While accepting that the appellants had no special status in dealings with Chiltern, as housing authority, it was submitted that SL as service user, had been put at a disadvantage by the lack of liaison with Chiltern. Local authorities ought to be encouraged to cooperate and the need for “collaborative working” could not properly be distinguished from a duty of “consultation”. The hypothetical possibility that there might be rogue authorities which cause problems in decision making ought not to influence the approach to the duty of fairness.

There is much common ground in this case. It is common ground that the duty to make the arrangements under section 29 of the 1948 Act for SL’s needs and an assessment under section 47 of the 1990 Act was, in 2009 when SL was resident at Hampshire House, on the respondents. It is common ground that on a lawful transfer of SL from Hampshire House to 52 The Lagger, the financial responsibility for community care services under section 29 of the 1948 Act would pass to the appellants. It is common ground that the decision as to the placement of SL following an assessment is governed by what is in the best interests of SL, given her condition and circumstances. The practical advantages of utilising the local knowledge of the host County Council are generally acknowledged.

The financial burden of the placement will fall upon one local authority but the incidence of that burden, the identity of the local authority on which the burden will fall, is not to be a factor in the decision making process by another local authority. While concerned about the consequences of having an NSE centre of excellence in their territory, the appellants do not submit that the potential financial consequences of that are material to the decision.

It is accepted that while primary care trusts, health authorities and the Secretary of State are given a status in the decision making process under section 47 of the 1990 Act, no status is expressly conferred in that section on local authorities in the position of the appellants. The Secretary of State has not given a direction under section 47(4) which bears upon a duty to consult the appellants and, in guidance under the section, the Secretary of State has not indicated that there should be such consultation.

In those circumstances, it is extremely difficult to find any legal basis upon which a duty of fairness to the appellants, in the form of a duty to consult them, when making a decision as to the placement of SL, can be established. The respondents are exercising powers in performance of a duty to SL. They do so in accordance with a statutory procedure. The role of the appellants, as potential payers for services, is essentially incidental to that process. The respondents are not in a judicial or quasi judicial position in relation to the appellants out of which a duty of fairness would arise. They are performing, in accordance with statute, a duty to SL. It is fairness to the service user which must be at the centre of decision making. Fairness to the appellants could arise only if performance of that duty requires a duty to consult the appellants.

I see no basis on which the court could create such a duty. It would inevitably complicate the decision making process in relation to SL. The obtaining of information from the appellants is one thing but, if the appellants were to have a status in the procedure, there would be a large potential for differences of view and for delay. That is illustrated by the input it appears from the appellants’ written submissions they would expect to make, as summarised in paragraphs 19 and 20 above. First, there would need to be a decision as to whether the service user came within the limited category of people contemplated by the appellants as one giving rise to the duty to consult. There would then need to be the expression of views on merits contemplated by the appellants and the need for the decision maker to take them into account. A real danger would arise not only of delay but of satellite litigation between local authorities.

Cooperation in the obtaining of information is to be encouraged but an enforceable duty should not in my judgment be read into the procedure. If it were to be imposed, it should be created, and its scope defined, by statute or in plain directions from the Secretary of State. Had Parliament intended to make provision for the protection of the financial or other interests of different authorities in the decision making process, express provision would have been made. The circumstances in Hillingdon and in Easyjet are different from those in the present case, and from each other. However, the approach I have adopted I regard as very similar to the approach adopted in each of those cases to the central issue of the existence of a duty to consult, or to consult further.

The good faith of the respondents in the decision making process has not been challenged in this appeal. If, in another case, it were to be established that the motivation for decisions under section 47 as to where to place service users was financial, different considerations would apply.

I agree with the judge’s conclusion and would dismiss this appeal.

I agree that this appeal should be dismissed for the reasons given by Pill LJ but I wish to add a few observations of my own on the issue of whether Kingston is in breach of a legal duty owed to Buckinghamshire County Council (“BCC”).

In order to succeed on this appeal it is not enough for BCC to be able to demonstrate that there has been some material failure on the part of Kingston in carrying out the assessment of SL’s needs under s.47 of the National Health Service and Community Care Act 1990 (“the 1990 Act”). They have to go further and establish the existence of a legal duty to consult enforceable by them independently of whether the outcome of the assessment is the subject of a challenge by SL. Absent such a duty they have no locus to seek judicial review.

The focus of s.47 is on the welfare of the person in receipt of the services which require to be provided (“the service user”). Consistently with that the purpose of the assessment is to identify what the needs of that person are in order to decide whether (and, if so, what) services the local authority will be required to provide in order to meet them: see s.47(1).

As part of that process the local authority is required to consider whether the service user will have a need for services provided by a primary care trust (PCT) or health authority or by a local housing authority (LHA): see s.47(3). If the answer to that question is yes then the obligation imposed on the local authority is to notify the PCT or the LHA concerned and to invite them to assist in the making of the assessment. The outcome of that process ought to be (on the question of housing) the resolution of any potential disputes between the local authority charged with the duty of arranging to provide residential accommodation under s.21(1) of the National Assistance Act 1948 (“the 1948 Act”) and the LHA with its statutory obligations under the Housing Act 1985 as to which of them should provide the accommodation necessary to meet the service user’s needs. That then falls to be taken into account by the local authority conducting the s.47 assessment in determining what kind of services it will be required to provide.

Mr Clayton QC for BCC emphasises as part of his submissions that the process identified by s.47(3) does not amount to a duty to consult the authorities there mentioned. A duty to consult properly so characterised would include, he says, the features identified by Lord Woolf MR in R v North and East Devon Health Authority ex p. Coughlan [2001] 1 QB 213 including the giving of sufficient reasons for particular proposals in order to allow those consulted to give intelligent consideration to them and an informed and intelligent response; the giving of adequate time for this purpose; and conscientiously taking into account the response of the consultee when deciding what action to take.

By contrast, the s.47(3) process is not a consultation designed to elicit the response of the PCT or the LHA to proposals which may adversely affect them or their interests. They have their own statutory responsibilities towards the service user which will continue regardless of and unaffected by the outcome of these discussions. The purpose of their involvement in the assessment is merely to ascertain how those areas of responsibility will impact on the totality of the services which need to be provided, thereby identifying the net provision which the s.21 authority will be left to meet.

This point is made as an answer to the challenge to BCC’s status based on the limited duties set out in s.47(3). Kingston rely on those provisions as supporting its case that no wider duties of consultation were intended by Parliament or ought to be implied as part of a common law duty of fairness. Mr Clayton submits that s.47(3) is not a duty to consult properly so-called and is not therefore inconsistent with the imposition of such a duty in favour of his own client. But he has therefore to accept that he must establish a duty owed to his client which is of a quite different and much more extensive nature than that owed to other service providers who are likely to be directly involved in meeting the user’s needs.

The justification for this disparity of treatment is not obvious and, in my view, is impossible to justify on the basis presented to the Court. BCC expressly disavows the financial and resources implications for itself of SL becoming ordinarily resident in Buckinghamshire as the basis for the imposition of the duty. It is put on the limited basis that BCC was best placed to know about local conditions and provisions with the result that the assessment was likely to produce a better informed decision about local conditions; most notably in this case the likelihood of housing benefit continuing to be available at a level sufficient to meet SL’s rent liabilities to the housing association. The ultimate beneficiary of this process would be SL, not BCC. Conversely it will be SL, rather than BCC, who will be disadvantaged by a failure to consult.

There are, I think, a number of obvious difficulties with this argument. I accept, as I mentioned earlier, that the focus of s.47 is on the needs of SL and she undoubtedly does have the locus necessary to challenge the unlawful exercise of the s.47 duty. Consistently with that, the duty to notify other potential service providers under s.47(3) is imposed in order to enable to the local authority to arrive at an informed view of the level of services it will be called upon to provide. It is not to provide the PCT or the LHA with what amounts to a right to object to their inclusion in the care plan. They have statutory duties towards the service user which are free-standing and have to be performed regardless of their involvement in the s.47 assessment. Its purpose is merely to inform the local authority what they are.

A defect therefore in the s.47(3) process including a failure to notify is not, in my view, open to challenge by the PCT or an LHA. It is at most a ground upon which the service user might be able to impugn the legality of the assessment. Mr Clayton accepted this initially but was later minded to resile from his concession by reference to what occurred in R v Manchester Primary Care Trust ex p. St Helens Borough Council [2008] EWCA Civ 931 where a dispute arose between two authorities as to whether a person with a dissociative identity disorder who had a need for 24-hour care should have those needs met by the PCT as healthcare needs. But the position in this case is not analogous. The purpose of s.47(3) is not to fix the division of responsibility between the local authority, the PCT and the LHA and a failure by the PCT or LHA to participate in the assessment cannot increase its proper area of responsibility to the service user.

It would, I think, be quite inconsistent with the purpose and structure of s.47 to single out BCC and those in a similar position as justifying an elevated status of statutory consultee when the only avowed purpose of that is to ensure that the assessment is as accurate as it can be. They wish to act in effect as proxies for SL and to double check the assessment on her behalf. But there is no need for this. She can challenge the outcome for herself if she has grounds to do so.

The legal basis for the duty relied on by BCC is the common duty of fairness. The components of the duty were described by Lord Mustill in R v Secretary of State for the Home Department ex p. Doody [1994] 1 AC 531 at page 560 in the passage quoted by Pill LJ at paragraph 11 of his judgment.

The extent to which the right to be consulted can be implied into the exercise of a statutory power or duty is ultimately a matter of statutory construction. In principle, it is open to Parliament to limit or exclude a right to be consulted or heard from the statutory process, although in most cases this will not be the result of an express provision to that effect. The issue (as in this case) will usually be whether the statutory machinery and the language used, considered in its proper context, is inconsistent with the operation of the common law presumption which Lord Mustill refers to. Or, put another way, whether the relevant statutory procedure was intended to be a self-contained and exhaustive code.

This question has been considered in widely different contexts, some of which are referred to by the judge. In R v Lord Chancellor ex p. Hillingdon LBC [2008] EWHC 2683 the statutory provision under scrutiny was s.92 of the Courts Act 2003 which includes an express duty on the part of the local authority to consult various persons before making an order prescribing court fees. Dyson LJ at paragraph 38 said that:

“In my judgment, the fact that, when conferring on the Lord Chancellor the power to prescribe court fees, Parliament decided whom he should consult before doing so militates strongly against the idea that there should co-exist a common law duty to consult more widely (in the absence of a clear promise by the Lord Chancellor that there would be wider consultation and in the absence of any clear established practice of wider consultation). Parliament is to be presumed to have considered that the degree of consultation specified in section 92 of the 2003 Act was sufficient.”

By contrast, in R v Civil Aviation Authority ex p. Easyjet [2009] EWCA Civ 1361 this Court had to consider the legal adequacy of a consultation exercise by the CAA in relation to the modification of the limits on airport charges at Gatwick. The issue was whether the CAA had adopted a lawful consultation process with regard to the airport operator’s estimated increase in security costs. Regulation 12 of the Civil Aviation Authority (Economic Regulation of Airports) Regulations 1986 required the CAA to give notice of the proposed modifications to the airport operator and to other persons who, in the opinion of the CAA, would be affected or have an interest in the proposed modification. The airline challenged the way in which it had been consulted and raised the adequacy of the regulation 12 process in terms of fairness. Dyson LJ at paragraph 45 (after quoting from Lord Mustill’s speech in Doody) analysed what he regarded as the relevant factors to consider. Pill LJ has quoted the passage at paragraph 25 of his judgment and I need not repeat it here.

This modulated approach is said to be more consistent with Lord Bingham’s statement in R v Parole Board ex p. West [2005] 1 WLR 350 that the maxim expressio unius exclusio alterius can seldom, if ever, be enough to exclude the common law rules of natural justice.

Absent the express exclusion or modification of the right to be heard, it will usually require strong language to justify the same result by implication. But, although the inclusion of an express duty to consult specified persons is not, of necessity, a complete bar to any wider duty, it will usually be a powerful starting point which is likely to trump anything but the strongest contextual considerations which might point the other way. The Hillingdon case is a good example of such a case. Lord Bingham’s statement was made specifically in relation to the rules of natural justice in the context of a parole board hearing which had an obvious impact on the liberty of the prisoner. By contrast, the present appeal (like the appeal in Easyjet) is concerned with a very different context in which the property or other fundamental rights of BCC are not in issue and the statutory process under review is carried out for the benefit of someone other than the claimant.

In all these cases it is important, in my view, to identify the nature of the inquiry which the Court is called upon to carry out. The issue in relation to the operation of the common law duty of fairness is whether Parliament is to be taken to have restricted the operation of those principles to what is prescribed by the provisions in question so as to exclude any wider duty of consultation. But for this to be an issue it must also be a case where the common law rule would ordinarily require a wider application of the duty to the facts of the case than that permitted under the legislation.

The starting point therefore should not be whether the statute on its proper construction has limited the duty to what it permits but whether the duty in the context of the statutory process requires anything more. As Lord Mustill recognised, context will in practice determine the scope of the common law duty in the particular circumstances under consideration. The rule of fairness is a flexible one which has to be adapted to the case in point. If the level of consultation prescribed by the statutory provision for the particular process is adequate to meet the requirements of fairness in this context then the issue of whether any wider duty is excluded by the statute simply does not arise. This was, I think, the approach taken by the judge.

The context here is an assessment under s.47 in which, as I have already pointed out, the duty is owed to SL to carry out a proper assessment of her needs. Nothing in that context requires BCC to be consulted before a care plan can be put into place. The obligation of a local authority to provide for those in need of care and attention due to age, illness or disability who are ordinary resident in their area is long-standing and is now established in s.21 of the 1948 Act. The 1990 Act did not alter this. Consequently BCC assumed responsibility for SL when she moved to private accommodation in their area and could have carried out their own s.47 assessment to resolve any issues between them and the LHA. This and the other factors which I mentioned earlier point in my view decisively against the implication of the legal duty which is contended for. I also agree with Pill LJ that although good administration will doubtless be enhanced by a proper degree of communication between the outgoing and the incoming s.21 authorities, that is insufficient in itself to confer on BCC the legal status which it seeks,

I would therefore also dismiss this appeal.

I agree with both judgments.