RP, R (on the application of) v London Borough of Brent

This is an application for Judicial Review of a decision by the London Borough of Brent (“the council”) to close its Short Breaks Unit at 24 Crawford Avenue earlier than had previously been decided. The unit is one of two residential units run by the council for the provision of short term respite care for disabled children.

In April 2010 the council had decided to relocate both units into a single new Short Break Centre as part of a new Village School for disabled children. First admissions for the new unit were scheduled to take place in December 2012. Following the reduction of local authority funding consequent on the government spending review the new administration in Brent which was elected in May 2010 was faced with an immediate need to make savings to the council’s budget in the order of £37million and in February 2011 the council’s budget for 2011/2012 reduced the Children and Families Department’s budget by £10.5 million in comparison to the financial year 2010/2011. Early closure of Crawford Avenue was identified by the council as a means of saving £517,000 over two years, which savings were said by the council’s Director of Children and Families in a report to the council’s executive dated 23 May 2011 (“the 23 May 2011 report”) to be necessary to achieve a balanced budget.

The decision to close Crawford Avenue earlier than originally decided was taken by the council’s Executive on 23 May 2011. It was called in by the council’s Overview and Scrutiny Committee (“OSC”) which, at a meeting held on 8 June 2011, rejected a proposal made by councillor Lorber, a member of the committee and, under the previous administration, leader of the council, to recommend to the executive to retain Crawford Avenue until the Village School facility was ready. The OSC split on party lines and councillor Lorber’s proposal was defeated by the Labour councillors who had a majority on the committee. Instead the committee noted the decision made by the executive on 23 May 2011.

The claim for judicial review is brought by the Claimant who is the mother of a severely disabled 12 year old boy, AP, who uses the short break care facilities provided by Crawford Avenue. The claim is also supported by the parents of six other children with behavioural disabilities who, together with the Claimant, have made witness statements in support of the claim.

AP has hydrocephalus or water on the brain. He has a ventricular – peritoneal shunt to drain the fluid to relieve pressure on the brain. He has an overactive bladder and has fluid in the ears. He experiences collapsing episodes and is under the care of a heart specialist at Great Ormond Street children’s hospital. His condition causes him to present with challenging behaviour and when he becomes frustrated he lashes out. He has an older brother with whom he shares a room at home. His behaviour is such that his mother needs short breaks from caring from him and his brother needs time and space to himself to study. Until November 2010 AP received 472 hours of short breaks care at Crawford Avenue which was later reduced to one session of after school care from 4 p.m. to 7 p.m. once a week and one session of day care once a month. AP has attended Crawford Avenue since he was five. The attraction to the Claimant of Crawford Avenue is that it provides respite care which she considers is able to deal effectively with AP’s challenging behaviour. In particular because he becomes frustrated and lashes out if he is in a small space she considers that he derives benefit from the large garden and the large sensory room in Crawford Avenue which allows him and other children to move around freely.

The Claimant is strongly opposed to the closure of Crawford Avenue. She has a small house and a very small garden and her older son who is 18 shares a room with AP and needs time to himself. She therefore considers that it would be inappropriate to have respite carers in her house and does not wish to receive direct payments from the council to pay for it. Nor does she consider that Clement Close is a proper alternative to Crawford Avenue. Clement Close is the other short care respite residential unit run by the council, whose functions and services are due to be replaced by the new unit in the Village School when it opens in December 2012. Clement Close currently houses physically disabled children. It is not currently suitable for providing services to children with behavioural disabilities and as part of the decision to close Crawford Avenue in October 2011 the council decided to spend £50,000 adapting Clement Close to the needs of children with behavioural disability. However, because of the risks presented by children with behavioural disabilities to children with physical disabilities, in particular those in wheelchairs, it would not be possible even after the proposed adaptation for Clement Close to provide services to children with behavioural and physical disabilities at the same time. The plan was that residential facilities should be provided to each category of child on alternate weeks. The Claimant considers that this would deprive her of the flexibility she currently has to arrange when she would like AP to attend the unit.

RB is the mother of ZB. ZB is 15 years old and has attended Crawford Avenue since the age of four. ZB currently receives 472 hours a year of respite care at Crawford Avenue including both day and overnight stays. She frequently goes to school from Crawford Avenue and returns there from school. ZB has autism, which her mother states results in her needing routine and a stable environment in familiar surroundings. She has challenging behaviour which means that she can lash out at any time at anybody. She likes to move around freely and paces up and down exhibiting inappropriate behaviour such as taking her clothes off in public, approaching strangers and touching them inappropriately. RB has a small ex-council house which restricts ZB’s movements. She is unable to go into the garden as it is too small and the children on the estate often throw things into the garden and hurl abuse at ZB. RB says that Crawford Avenue provides the space which she cannot provide at home. In 2009 ZB suffered a psychotic breakdown which, according to her mother, was due to her being placed in a school that was not suitable for her needs. She stayed there for one and half years. The breakdown was so severe that ZB attacked her mother and RB’s other daughter had to call the police for help. RB states that it was agreed that ZB could not be left in the house with her or her other daughter as she was uncontrollable. She was taken to Crawford Avenue which offers respite emergency care for situations such as that.

RB opposes the closure of Crawford Avenue on the ground that it provides routine structure and a safe environment for ZB. ZB is familiar with the surroundings which for her are like going from home to home. RB asserts that if Crawford Avenue were to close there would be no other suitable unit which could cater for ZB’s complex needs. RB states that she has been told by ZB’s social worker that if Crawford Avenue were to close there would be no other emergency respite provision in Brent. RB is also concerned that if RB’s movement is restricted, as she says it would be at Clement Close which is much smaller than Crawford Avenue, that could have very serious negative consequences. According to RB due to the nature of their challenging behaviour the children who attend Crawford Avenue need space between themselves and she considers that Clement Close lacks the necessary space indoors and outdoors and is too cramped and congested. Clement Close has a very small sensory room that is less than a quarter of the size of that at Crawford Avenue and in the view of RB is not suitable for her daughter’s needs. She is opposed to direct payments as an interim measure because they would not meet her needs as a single parent. She would have to employ someone suitable to assist with ZB who would struggle to get used to the person. Her house is too small and more importantly she would not herself have any respite from looking after ZB if she stayed at home.

FL is the father of KL, a 17 year old girl who has attended Crawford Avenue since the age of seven. She currently receives 420 hours a year support at Crawford Avenue including both day and overnight stays. She attends Crawford Avenue every Friday after school, which, together with the day care, allows her stimulation which FL says she cannot get at home and which allows both her parents and her younger sister some respite. KL has Classic Autistic Spectrum Disorder, characterised by obsessive behaviour, hyperactivity and no understanding of social norms. FL states that if she does not have routine or familiarity with her surroundings she becomes extremely hyperactive which often results in her needing emergency respite. He states that she has settled in well at Crawford Avenue becoming excited when she knows she is going there. He is of the view that Clement Close cannot meet her needs and states that he would not allow her to attend there, fearing the repercussions as she does not respond well to changes in her routine. If Crawford Avenue closes FL states that he would have no alternative but to make arrangements to have KL brought home from school on a Friday to the detriment of her and her family. He states that this would be to the detriment of his 15 year old daughter who is preparing for her GCSEs because when KL is around all members of the family have to supervise her intensely to ensure that she does not put herself in danger. For that reason he is opposed to direct payments and asserts that the family would lose its right to respite completely. He feels that the council has not thought through these changes and has not assessed the impact they will have on the children and their families. FL has made it clear to the council that his family are not in favour of direct payments.

JL is the father of JAL, a 13 year old girl who has attended Crawford Avenue since the age of six. She currently receives 472 hours a year support at Crawford Avenue including both day and over night stays. She frequently goes to school from Crawford Avenue and returns to Crawford Avenue from school. JAL suffers from Kabuki Syndrome which is a mixture of autism and delayed cognitive skills. JL says that her condition results in her needing familiarity and routine in a safe and spacious environment. He is opposed to his daughter attending Clement Close which he considers could never replace Crawford Avenue as a respite unit. Both he and his wife are adamant that they will not be sending her to Clement Close or accepting direct payments as they do not consider that would give them respite and quality time to spend with the rest of their family. He considers that Clement Close is not fit for purpose for his daughter because it is too small and has no proper garden, his daughter needing a lot of space to move around as she can become extremely agitated and lash out in restricted spaces. In addition he considers that Clement Close is too long a distance from his home. Crawford Avenue is just around the corner which is very convenient for JL and his wife and something he considers of particular importance if JAL has an outburst and they are in need of emergency respite. He considers that if, in addition to the disruption caused by the temporary arrangements for her full time care pending the opening of the Village School, his daughter had to move to Clement Close for respite care it would cause her and the other children to suffer unnecessarily. His daughter is a very sensitive child who does not like change and he states that it is a well known fact and his experience that children with behavioural difficulties cannot cope with change. He considers that the impact of having to move and be placed in unfamiliar surroundings will cause the children to become extremely agitated and tantrums to increase with an adverse effect on the rest of the family. His daughter has already been adversely affected by the break up of her parents’ marriage.

AT is the mother of TT, a 13 year old boy who has attended Crawford Avenue since the age of 11. He currently receives 472 hours a year of support at Crawford Avenue including both day and over night stays. TT attends Crawford Avenue every Wednesday after school. TT has Classic Autistic Spectrum Disorder, which is characterised by obsessive behaviour, hyperactivity and violence. If he does not have routine or is unfamiliar with his surroundings he becomes extremely hyperactive, which often results in him needing emergency respite. AT is opposed to her son attending Clement close which she considers to be unsuitable for his needs. TT is very active and needs a lot of space and AT considers that Clement Close is too small and that her son and the other users would no longer be able to move freely from room to room as they can at Crawford Avenue. AT states that when the special needs school which TT attends learned about the closure of Crawford Avenue in July 2011 it expressed a number of concerns about the effect the closure will have on TT. AT states that the professionals at that school advised that TT needs consistent predictable routines and that any change beyond TT’s control will have detrimental effects on his behaviour and progress and cause considerable anxiety and erratic behaviour. Familiarity is crucial for children with autism. AT is opposed to direct payments as she works full time. She has two other children aged two and nine and would not be able to use direct payment to organise alternative care for TT. If Crawford Avenue closes she states that she will have no respite care and will be unable to spend quality time with her other children. TT’s behaviour has a huge impact on her family. Her children and AT are very isolated as she does not have family living nearby to support them in difficult times.

CM is the mother of CHM, a ten year old boy who has attended Crawford Avenue since he was eight. He is a permanent resident at Crawford Avenue, coming home every weekend to spend time with his brother and sister and the rest of his family. He is due to be placed at a full-time residential school in Yorkshire. There is a dispute on the evidence between the parties as to whether this is a consequence of the closure of Crawford Avenue or not. The Claimant accepts that it is not necessary to resolve that conflict for the purpose of deciding this claim.

AB is the father of JB, a 17 year old boy who has attended Crawford Avenue since he was 11. From the ages of 5-11 JB attended Clement Close but, according to AB, he had to leave Clement Close as it was not deemed suitable for his needs. He has Global Development Delay which means that he is severely incontinent and unable to speak or eat solid food. His father says that he is mobile and a very happy young person able to express his wishes and feelings in a non-verbal manner. However if he does not get his way he can become agitated and violent. He was allocated to Crawford Avenue because he became more mobile and had a tendency to hit and lash out at other children especially those who were wheelchair bound. JB currently receives 572 hours of day care and overnight stay at Crawford Avenue. AB is strongly opposed to the closure of Crawford Avenue. He says that JB is very much an outdoor person who spends many hours in the garden and moving from room to room at Crawford Avenue. He says that it was decided that JB would benefit from being at Crawford Avenue as the unit has better facilities and activities that are suited to his needs as a growing young person. AB regards the decision to relocate JB and others back to Clement Close as a backward step as Crawford Avenue was the place suggested to suit his needs. The closure of Crawford Avenue is very distressing to AB’s family as JB really enjoys being there and has benefited immensely from it. In addition his family has benefited from the respite as AB has a daughter aged 11. AB’s wife died last summer and as a single parent and step-parent AB has been determined to do the best he can for both his children. He is opposed to direct payments as an alternative to residential respite care for JB because of his other family responsibilities.

PM is the mother of KM, a 16 year old boy who has cerebral palsy, bilateral deafness and chronic lung disease. He cannot communicate at all, walk or sit up or care for himself and is a wheelchair user. He is fed through a gastronomy tube. Caring for him is said by PM to be very challenging and exhausting. At the age of three he was assessed and allocated respite hours to relieve the pressure from his family. PM states that it took KM a long time to settle and the carers at Clement Close a very long time to understand him as a disabled person. He has settled very well at Clement Close attending the centre on a regular basis. However, when he is at Clement Close the staff make sure not to have any other child of similar needs around so as to ensure they are able to address his needs to the maximum. PM is concerned that the closure of Crawford Avenue would have a negative effect on KM because emergency provision would be at a new unknown centre where staff do not know KM. PM is concerned that once Clement Close and Crawford Avenue are combined it will no longer be possible for her to take a break and make a block booking at Clement Close. She is also concerned that children with varying needs should not be mixed as there can be extreme outbursts of violence leaving many defenceless and raising issues of health and safety when mixing the two groups.

The claim for judicial review was issued on 23 August 2011 seeking permission to challenge the council’s decision to close Crawford Avenue which was said to have been taken on 23 May 2011 and confirmed following the OSC meeting on 8 June 2011. There were three grounds of challenge: (1) breach of the common law duty to consult, (2) breach of section 149 of the Equality Act 2010 and (3) breach of the Article 8 rights of the Claimant and her son. On the same day the Claimant made an ex parte application for interim relief including an interim injunction preventing the council from taking any further steps to close Crawford Avenue and requiring it to continue to fund existing placements there including the placement of the Claimant’s son until final determination of the claim.

The matter was considered by Hickinbottom J on the papers on 23 August 2011. He expressed concern both at the delay in issuing the claim and at the Claimant’s attempt to obtain the orders sought by way of interim relief without notice to the council. He ordered a directions hearing to take place on 25 August 2011. Following an inter parties hearing on 25 August 2011 Hickinbottom J ordered that the Claimant’s applications for permission to seek judicial review and for interim relief be listed for hearing on 6 September 2011. He directed the council to file acknowledgement of service, summary grounds of defence and a response to the application for interim relief including any evidence in support by 1 September 2011 and the Claimants to file and serve any reply and further evidence in support on 2 September 2011.

At the hearing on 6 September 2011 Collins J granted permission to seek judicial review and the interim relief sought. According to the note of Mr Greatorex, counsel for the council, Collins J emphasised that he was only just persuaded to grant permission to seek judicial review on the second and third grounds, namely breach of section 149 of the Equality Act 2010 and breach of the Claimant’s and her son’s Article 8 rights. He stated that although that did not relate to the first ground of challenge, namely the breach of the common law duty to consult, he was not limiting the grant of permission to the second and third grounds. He did however say that consideration should be given by the Claimant to whether she wished to pursue both the first ground of challenge and the claim as a whole which he described as “weak”.

On 13 September 2011 the Claimant served a document headed “Claimant’s additional grounds of judicial review and Part 18 Request for Further Information” which was settled by Mr Bowen, counsel for the Claimant who appeared at the hearing in front of me on 6 October 2011. Mr Broach who settled the statement of facts and grounds for judicial review was unavailable to represent the Claimant at that hearing.

The new ground was described as “irrationality / breach of section 149 in failing to obtain information concerning alternative provision of short breaks care”. It was alleged in summary that the decision to close Crawford Avenue was irrational because the council failed to take reasonable steps to acquaint itself with the relevant information to enable it to take the decision to close Crawford Avenue, namely whether in fact there was sufficient alternative provision to meet the assessed needs of service users to continue. Reliance was placed on Secretary of State for Education v Tameside MBC [1977] AC 1014 at 1065. This failure was also alleged to be a breach of the council’s duty under section 149 of the Equality Act 2010 to have “due regard” to three equality objectives. In the document the Claimant recognised that the council might seek to demonstrate that it did in fact obtain all relevant evidence before reaching its decision. It set out a series of requests for further information in the form of a Part 18 request for further information seeking to clarify what information the council had concerning the availability of alternative short breaks care when it made the decision.

In a lengthy skeleton argument dated 3^rd October 2011 Mr Bowen indicated that of the three original grounds on which permission was granted by Collins J the Claimant did not intend to develop the alleged lack of consultation or breach of Article 8. The additional grounds served on 13 September 2011 were said to have been served for the avoidance of doubt as they were said to have been anticipated in the original grounds in which it was submitted that if there was a consultation in relation to which the Claimant had a proper opportunity to respond it was so flawed at to be unlawful as it did not ask the most important question, namely whether Crawford Avenue should close, and in which it was submitted that a failure to ask and answer the right questions is the error identified by the House of Lords in Tameside as sufficient on its own to vitiate any subsequent decision.

At the start of the oral hearing on 6 October 2011 Mr Bowen told me that it was agreed between the parties that in relation to the challenge to the decision to close Crawford Avenue the principal issue was whether it failed the test of rationality and was for that reason unlawful. If it was irrational, there was no need for the court to adjudicate on the alternative argument that there was a breach of section 149 of the Equality Act since that challenge was based on the same arguments. By the same token if the irrationality challenge failed the allegation that section 149 was breached must also fail. While Mr Greatorex did not demur from that analysis, he emphasised throughout that the sole basis on which the legality of the decision to close Crawford Avenue was now sought to be challenged was an irrationality ground for which permission had not been given by Collins J on 6 September 2011. The grounds for which permission had been given had subsequently been abandoned. The Claimant needed permission to advance the new ground and such permission should be refused on grounds of delay and prejudice to the council.

The council had answered the Part 18 request on 28 September 2011. By email dated 30 September 2011 the Claimant had served another request for further information comprising seventeen questions and given notice of an intention to challenge a further decision, namely the decision of the council to implement the closure of Crawford Avenue. On 3^rd October 2011 the Claimant had served a document entitled “Claimant’s additional decision to be judicially reviewed and further additional grounds of judicial review”. In it the Claimant sought in the alternative to challenge the council’s decision to implement the decision to close Crawford Avenue and to transfer existing service users to Clement Close before Clement Close has been refurbished and alternative placements have been identified and assessed as suitable for all current users of Crawford Avenue including suitable emergency placements. It was alleged that the council’s initial intention had been to implement the closure decision on 9 September 2011 but that that had been prevented by the injunction granted by Collins J on 9 September 2011. The new challenge was said to have become necessary in the light of the council’s evidence served on 28 September 2011 and instructions taken from the Claimant and other opponents of the closure of Crawford Avenue which suggested that the council proposed to close Crawford Avenue immediately if the injunction of Collins J was lifted without ensuring that adequate alternative provision is in place. It was alleged that the council is under a duty to provide the Claimant and the other service users at Crawford Avenue with short breaks service in accordance with their current levels of assessed need under section 17(2) and Schedule 2, para 6 of the Children Act 1989. It was therefore alleged that the council cannot lawfully close Crawford Avenue if that leads to a reduction in the hours of short breaks care without carrying out a lawful reassessment of the needs of current service users at Crawford Avenue both under the Children Act 1989 and in accordance with the Care Planning Placement and Case Review (England) Regulations 2010/959. The council objected to permission being granted to challenge the second decision.

On the morning of the hearing the council served a draft response to the Claimant’s second Part 18 request for further information. I read both that draft response and the response to the first Part 18 request and the evidence related to the additional grounds for challenging the first decision de bene esse. In the course of the hearing Mr Greatorex told me on instructions a number of matters as to information which the council said it had at the time it took the decision to close Crawford Avenue. This was supplemented in written submissions served on 7 October 2011, the need for which arose out of an inadequate time estimate for the hearing which concluded late in the afternoon of 6 October 2011 before Mr Greatorex had finished his oral submissions and before Mr Bowen had replied.

Given the importance to the proposed challenge to the first decision of the information known to the council at the time of the first decision it seemed to me unsatisfactory that this should be addressed by the council in the form of submissions and statements made on instructions rather than evidence. Accordingly following receipt of the council’s supplemental written submissions and the Claimant’s written reply submissions, in an email dated 10 October 2011 my clerk informed the parties that I considered it appropriate and desirable that these matters should be placed before the court in the form of a witness statement. This was without prejudice to the council’s submissions as to the consequences that should follow from the Claimant’s delays. Despite the urgency of the matter which had been pressed on me by Mr Greatorex at the hearing, a draft witness statement was not served until 13 October 2011, the time taken being attributed by the council to the involvement of the relevant officials in an OFSTED inspection of the council’s Children and Family Unit.

Crawford Avenue currently accommodates short breaks care for 67 children of whom 44 receive overnight stays. It caters for children with severe behavioural difficulties including children on the autistic spectrum. It is located in Wembley in a large residential property leased from Barnardos at an annual rent of £32,250. It has large rooms including a large sensory room and a large garden which gives children with challenging behaviour space to express themselves without harming others. It does not accommodate children with severe physical disabilities because it has no lift and because of the risk posed to children with physical disabilities by children with severe behavioural difficulties.

Clement Close is located in Willesden on a residential estate and is owned by the council. It currently caters for children with significant health and physical difficulties including wheelchair users. It currently provides support to 16 children of whom 15 receive overnight care and one receives day and after school care. Although described in the 23 May report 2011 as “not ideal” it is fully accessible to disabled children and was improved last year through a Youth Opportunity Fund grant with a sensory room and garden play equipment. The sensory room and garden are smaller than those at Crawford Avenue.

Both Clement Close and Crawford Avenue also accept children on an emergency basis. Between June 2010 and September 2011 there were 64 emergency admissions to Crawford Avenue and 33 to Clement Close. Approximately 1102 hours of emergency short breaks care were provided between those dates at Clement Close. No short break sessions were cancelled as a consequence. 1632 hours of emergency short breaks care were provided between those two dates at Crawford Avenue where 23 short breaks sessions were cancelled as a consequence. Between January and May 2011 Crawford Avenue provided over 1200 hours of emergency short breaks care.

On 12 April 2010 the council’s Executive decided to develop a scheme to merge two special schools which cater for a wide range of special educational needs including autism with associated learning and behavioural difficulties and physical disabilities. The approved scheme involved rebuilding Hay Lane and Grove Park Special Schools as one school on the same site and re-providing the council’s short break provision by relocating the Short Break Centre currently located at Crawford Avenue and Clement Close to the site of the rebuilt Hay Lane school, which was to be known as the Village School. The two Special Schools, located on adjacent sites off Stag Lane Kingsbury, were to be merged as one school with effect from 1 September 2010.

The new custom-built Short Breaks Centre at the Village School was to be a single high quality facility. The report from the Director of Children and Families dated 12 April 2010 to the Executive stated that the new facility would make significant improvement to the quality of the council’s short term break and respite services as well as producing a capital receipt of £410,000 (it is to be inferred from the sale of the Clement Close site owned by the council) and revenue savings on rent of at least £32,000pa on Crawford Avenue. Under the scheme Crawford Avenue and Clement Close would be declared surplus to the requirements of the council’s Children and Families services once the new building was complete which was estimated to be in the summer of 2013. The report said that the scheme took fully into account the outcomes of consultation with staff and users of what is described as “that facility”, apparently a reference to Clement Close and Crawford Avenue.

It was not anticipated that Crawford Avenue would be closed before the new short breaks facility at the Village School was opened. The 12 April 2010 report recommended that “approval be given to the relocation of the short breaks centre (currently located at Crawford Avenue and Clement Close) to the site of the rebuilt Hay Lane school and that Crawford Avenue and Clement Close sites be declared surplus to the requirements of the council’s Children and Families services once the new building is complete which is estimated to be summer 2013” .

In the 23 May 2011 report, the Executive, was recommended to agree to cease to provide short breaks for children with disabilities at Crawford Avenue from 1 October 2011 and to restructure the staffing arrangements at Clement Close and Crawford Avenue in order to deliver an effective service at Clement Close to meet the full range of children’s needs.

In the summary the report proposed a restructuring of the residential short breaks services currently provided at the Crawford Avenue and Clement Close units. The proposals were said to be in line with the longer term strategy for reducing residential provision and increasing more flexible options for families for short breaks which are community based. It was said that this is being achieved through promoting the take up of direct payments and working in partnership with families and providers to develop skills and increase community provision. The move to direct payments was said to be reflected nationally and to be central to the council’s Aiming High Joint Commissioning Strategy. It was said that the eligibility criteria for the provision of short breaks had been reviewed in consultation with parents and remained unchanged. If it were not possible to provide the assessed level of short breaks provision through Brent’s in house residential provision alternative short breaks arrangements would be made.

It was said that the building at Crawford Avenue is not fit for purpose and due to its age and condition is expensive to maintain. There is no lift in the property and it is therefore not able to accommodate children with mobility difficulties. Some recent improvements had been made to the garden following recommendations from OFSTED. Crawford Avenue was said to have a higher staff establishment than Clement Close. The property at Clement Close was said to be not ideal although fully accessible to disabled children and to have been improved last year through a Youth Opportunity Fund grant with a sensory room and garden play equipment.

It was reported that the new short break provision at the Village School was due to be completed by the summer of 2012 subject to any changes at the tender stage. It was planned that the new unit would be registered and ready for admissions by December 2012. The new centre would offer a state of the art facility for disabled children in Brent. It was said that the transfer of the current service to the new centre would require consultation with staff and parents. It was planned that the new unit located on the Village School site would be able to provide overnight care for between 6-8 children and be able to offer a service to children with all types of need (that is to say including both children with physical disabilities and children with behavioural difficulties). There would be four places available for short breaks for Brent children and the remaining places would be available to other local authorities who would be charged for that service.

It was said that the recommendation to reconfigure the current short break provision and provide a service from one base was in keeping with the long term plans for the service and the national drive for the more efficient use of resources through increased use of personal budgets and a reduction in the use of residential care. Personal budgets would allow parents the ability to manage their own care packages which might include overnight provision.

It was reported that a review of services, including short breaks services, was carried out as a result of the government’s spending review which reduced local authority funding. The proposal to close Crawford Avenue was said to have been made in order to protect and increase alternative more cost efficient short breaks services and to have been in keeping with the council’s long term strategy to reduce residential provisions by offering more community based alternatives. It was said that many local authorities do not provide their own residential short breaks services and that nationally there is a drive to increase personal budgets (directs payment) and reduce the time that children spend in residential care away from their families and communities. Under the recommended proposals it was said that the council would still retain an in house residential option at Clement Close which would continue to provide overnight care for the majority of the most vulnerable of the client group. Furthermore it was stated that, having regard to the costs of maintaining Crawford Avenue, the shortcomings in its sustainability and the longer term plans to transfer all the respite provision from both Crawford Avenue and eventually Clement Close, the proposal to close Crawford Avenue was a cost efficient option and consistent with the wider policy objectives.

It was said that alternative cost saving options could include revised criteria for services such that fewer families would receive a service and the nature of the service would be more limited. It was stated that such steps would affect more families and would be more likely to have an adverse impact upon them. Such options could increase the demand for out of borough residential schools and permanent placements. That was said to be neither cost effective nor in the interests of the children and their families.

It was stated that Clement Close is not currently designed to accommodate children with challenging behaviour and that some adaptations would therefore be necessary as well as a training programme for staff to ensure that all staff are able to support and care for both groups of children. The unit would also need to have a revised statement of purpose as it is subject to Children Homes regulations and inspections. It was reported that a Health and Safety risk assessment had been carried out by the council’s Health and Safety Officer and that requirements had been identified but would cost an estimated £50,000.

It was reported that the number of children using the Clement Close unit had been declining as many parents prefer the more flexible option of obtaining short breaks through the use of direct payments. Those were payments made directly to families to purchase their own care and support. It was said that there has not been a corresponding decline in the demand for places at Crawford Avenue for children with significant challenging behaviour although there had been a reduction in the number of parents requesting overnight care with parents preferring day care support. It was said that the consistent demand is because there are limited number of providers and carers with the appropriate skills and training, available to parents of children with challenging need in the community. There was however said to be an indication that the market is beginning to grow to meet those needs. Brent had been supporting that growth through its Aiming High programme and by actively engaging with programmes.

It was reported that there were currently 105 families receiving direct payments in Brent representing an 80% increase over the last three years. It was anticipated that the take up of direct payments and the move towards personal budgets for families would further reduce the demand for overnight short breaks in residential units for the majority of children. There would however always be a small group of children who would require such residential breaks. Further growth in the direct payment budgets had been considered as part of the 2011/12 budget setting process and the service was reported to have benefited from growth of £300,000 which would be used to meet the growing demand for direct payments.

Brent was said to be one of a declining number of local authorities which still manage their own residential provisions. In other authorities when overnight provision is required that was said to be provided either through commissioned placements in residential units, foster homes or direct payments to families where they can purchase their own overnight care. Under the heading “impact of the proposal” the report stated that, because it is not safe or practical to mix children with severe physical disabilities in the same building and space as more boisterous children with challenging behaviour, the only safe way that this could be managed in Clement Close would be to offer separate sessions. It was proposed “at this point” to offer alternative weeks to each group of children. The final arrangements of how the children would be safely managed in one unit would be agreed after consultation with staff and parents as part of the managing change process following a decision on the proposals. With the implementation of the proposals there would be overall decreases in the hours available for in house short break care by approximately 25-30%. Clement Close would be able to increase its occupancy through an increase in staffing levels which would enable the unit to offer overnight care to four children every night. The children who currently received overnight care would be given priority over children who currently only received day care. This would mean that the main reduction in in–house respite care would be for children receiving day and after school provision. It was said that those families would however be provided with alternative short break arrangements through an increase in direct payments, enabling them to directly commission support from private and voluntary groups or by domiciliary care at home. Where it was not possible to provide overnight stays and where such provision was assessed as necessary, and alternate overnight placement out of borough would be sought. Those situations were said to be unpredictable but might result in additional costs to the council.

Currently it was reported that parents were offered a number of hours of short breaks at the unit (apparently a reference to both Crawford Avenue and Clement Close) which was dependent on their needs which were identified through an assessment. Families were normally offered 472 hours if they were assessed as requiring overnight stays which was the equivalent to 28 nights each year. For families requiring day care breaks there was normally an allocation of 260 hours which was the equivalent of five hours per week. The actual booking of the breaks was then agreed between the unit manager and the parent and was dependent on the capacity for the unit, the need of the child, the time that the parent wanted and the age and ability of other children booked in during that period. It was said that although there might be a loss of flexibility for some families, all families would be offered alternative short breaks provision based on their allocation of hours. That would be provided through direct payments or care at home. Where parents who had been assessed for overnight short breaks did not wish to take those alternative options other over night options such as foster care or out of borough resources would be considered. It was reported that both units were currently able to take children in an emergency but that this would not be possible when the service was provided from Clement Close as a child with physical disability could not be accommodated safely if the emergency happened in a challenging behaviour week. In that event provision would need to be made through the Commissioning team for an emergency placement with a foster carer or in an out of borough residential resource. Similarly there had been times when children had had to be accommodated for an interim period as was the current situation at Clement Close due to a family emergency. In those situations an alternative provision would have to be commissioned at additional cost to the local authority.

The report recorded in summary form the results of a consultation targeted on families who currently use the service and approximately 400 families who would be eligible to do so because they had a child with a disability who following an assessment would be eligible to take up the option as well as organisations and stakeholders working with families and children with disabilities in Brent. Those families and organisations were individually sent letters and questionnaires and current users of the service were offered a choice of three meetings with senior managers and an open morning to view Clement Close was arranged. Ten families attended those sessions. There were 16 responses from parents and carers and 24 responses from service users who would be eligible to use the service. There was a 19% response rate from parents and carers who currently used the service and a 6% response for the potential service users. The families who responded were reported as having the following concerns: (a) the mixing of the different groups of children; (b) the ability of their child because of the nature of their disability to cope with the change and then to have to move again the following year to another new building; (c) the loss of flexibility of provision and reduction in hours available at council residential respite units; (d) a belief that they would not be offered emergency care if required; (e) a concern the Clement Close would not be suitable for the needs of children with challenging behaviour because it is too small and (f) a belief that alternative provisions would not meet their family’s need because of poor experience of care packages, preference for their child to be cared for in a residential setting rather than with carers in their own home and lack of trained carers in the community. A summary of the responses was attached in appendices.

Under the heading “mitigation of concerns” the following points were made in the report. (a) It had never been the intention to allow the different groups of children to be offered the service at the same time. Children would be offered a place when there was peer group suitability, that is to say children with physical health needs and mobility difficulties would not be offered a session with children with more complex behavioural challenges. (b) It was appreciated that any move for a disabled child could pose challenges but the staff were sensitive to the needs of the children and would work at the individual child’s pace with planned introductions and careful monitoring. (c) There should not be any loss in short breaks hours as alternative provision would be provided to meet a family’s assessed allocated hours. In order to ensure the careful managing of a child during its stay with a peer group and to meet the needs of the family there would inevitably need to be some negotiation around times and flexibility. The only fully flexible option for parents were direct payment when parents were in control of when and where they had their break. (d) Emergency care would still be provided but it might not be possible within the unit. (e) It was acknowledged that Clement Close is a smaller unit with less garden space than Crawford Avenue. However the unit had a minibus and was close to parks and Willesden Green leisure centre. Staff would make better use of community facilities and outside spaces to compensate for the more limited accommodation. (f) Support would be given to parents if they chose alternative provision whether through direct payments or care at home. The council used a number of care providers and had quality standards and would attempt to assist, negotiate and/or resolve all problems with care providers and/or change providers if families were dissatisfied. Council officers were currently working with providers to support the training and recruitment of carers. There would however always be a small number of parents whose preference was for a residential unit and in exceptional cases based on assessed needs alternative residential short break provisions would continue to be commissioned.

Under the heading “financial implications” the report stated that the proposed savings from the proposal were £190,000 in 2011/12 and four years savings of £327,000 in 2012/13. The savings would arise from staff reductions of approximately eight full time equivalent posts. Those savings formed an important element of the total savings planned by the Children and Families department to meet its departmental budget set for 2011/12 and if they were not realised other compensating savings would need to be identified to stay within that budgetary limit. There was a risk of additional costs. In an exceptional emergency situation a child who previously would have been offered an emergency bed in one of the units would have to be placed in an out of borough provision. Non-staffing savings in relation to rent had already been factored into the financial plan set out in the report for developing the new unit at the Village School site and could not be counted as savings contributing to the Department’s savings for 2011/12. The estimated £50,000 cost of adapting Clement Close to meet health and safety requirements would need to be met from existing budgets.

Under the heading “legal implications” reference was made to the general duty on the council imposed by section 17 of the Children Act 1989 to safeguard and promote the welfare of “children in need” in their area. The duty was said to be to provide an appropriate level and range of services for children in need. Assessment had to be undertaken and eligibility criteria could be used to determine provision of service. Services under section 17 might include cash and accommodation. Paragraph 6 of Schedule 2 of the Children Act 1989 was said to impose a duty on the local authority to provide breaks from caring to assist parents and others who provide care for disabled children. Reference was also made to the Breaks for Careers of Disabled Children Regulations 2010 which came into effect on 1 April 2011. Those regulations were said to provide that in the performance of the duty under the Act the local authority must have regard to the needs of carers who would be unable to continue to provide care unless breaks were given and the needs of carers who would be able to care for their disabled children more effectively if breaks were given to enable them to undertake training, education or leisure activities, carry out day to day tasks and meet the needs of other children in the family. The Regulations were said to provide that local authorities must as so far as is reasonably practicable provide a range of day care, over night care and services available to assist carers. It was stated that the proposals set out in the report were consistent with the council’s powers and duties.

Reference was also made to the duty imposed on the council by section 149 of the Equality Act 2010. Councillors were advised that they must have due regard to the need to take steps to meet the needs of disabled persons where those needs are different from those of persons who are not disabled and to encourage them to participate in public life. Those steps included steps to take account of the persons’ disabilities. Due regard to the need to eliminate discrimination advance equality and foster good relations must form an integral part of the decision making process when considering and making decisions on the provision of services for children and families. Councillors were advised that they must consider the effect that implementing the decision to close Crawford Avenue and provide other services for children and families would have in relation to equality before making a decision.

The report advised that there is no prescribed manner in which the equality duty must be exercised. However the council must have an adequate evidence base for its decision making. That could be achieved by means including engagement with the families who used or were eligible to use the service and other interest groups by gathering details and statistics on who used the respite service and how it was used. The report stated that the service in question was one which by its nature directly affected those children with disabilities and their families. The potential equality impact of the proposed changes to short break respite service for children with challenging behaviour and disabilities had been assessed and the assessment was attached as an appendix and summarised under the heading “diversity implications” in the main report. Councillors were advised that a careful consideration of that assessment was one of the key ways in which they could show “due regard” to the relative matters. Where it was apparent from the analysis of the information that the policy would have an adverse effect on equality then adjustments should be made to avoid that effect. Councillors were advised that the duty was not to achieve the objective or take the steps set out in section 149 but rather to bring those important objectives relating to discrimination into consideration when carrying out their public functions which included functions relating to children and families. “Due regard” was said to mean the regard that is appropriate in all the particular circumstances in which the authority is carrying out its functions. There must be a proper regard for the goals set out in section 149 but at the same time councillors must also pay regard to any countervailing factors which it is proper and reasonable for them to consider. Budgetary pressures, economics and practical factors were said often to be important. The weight of those countervailing factors in the decision making process was said to be a matter for councillors in the first instance. Under the heading “Diversity Implications” it was reported that Crawford Avenue and Clement Close had a diverse ethnic representation as over 70% of the children who currently received a service from the units were from ethnic minority communities. There would be an impact on that client group by the closure of Crawford Avenue in that there would be less in house provision of residential short break respite care places by approximately 25 to 30%. However there would be no reduction in the number of hours of respite provision made available to the service users and where the reduced number of places in the units resulted in a shortfall in places alternative means of respite care such as direct payments to commission respite provision, care at home, foster care and in some circumstances residential placement in non council owned units would be provided. The Children and Families department would actively assist families in the identification of alternative respite arrangements. It was recognised that the flexibility currently offered to families would be more difficult to achieve although that would be progressively improved with the development of personal budgets. The council would therefore mitigate as far as possible the adverse impacts by offering families alternative provisions as detailed in the body of the report.

Councillors were advised that while they must have proper regard to the need to eliminate discrimination, advance equality of opportunity and give due regard to the steps to meet the needs of those with disabilities, they might also pay regard to countervailing factors including the current financial constraints on the council. Savings were needed and the alternative service review options would have a greater impact on service users than those currently proposed. The proposals set out in the report were also said to be consistent with national objectives and council objectives to move towards commissioning arrangements and community provision and the council's plans to move towards a new residential unit at the Village School.

In the Equality Impact Assessment carried out by the council which was attached to the report the aim of the proposals was said to be to realise savings of £190,000 in 2011/12 and £327,000 in 2012/13 for the Children with Disabilities service as a whole to ensure that there was sufficient funding to enable other elements of the service to continue. That would allow growth and expansion of alternative short breaks options for families such as direct payments and care in the home. As a result of the government autumn spending review which reduced funding to the council an internal review of all expenditure in the service was carried out. A number of options were considered and priority given to retaining services that provided the most cost-effective service and those that were the most highly valued by the majority of children with disabilities and their families i.e. holiday play scheme provision. One of the options considered was said to be restructuring the way residential short break services were currently provided.

The residential units were the most costly of all the council's short breaks services which was why that service was identified for an early review. It was said that the council appreciated that the proposal would have an impact on the flexibility and amount of residential short breaks that could be provided for children and their families and among other things that the capacity of the new building at Clement Close would remain the same but the occupancy rate would be increased.

It was said still to be the intention to offer a residential short breaks service in Brent. Families would continue to have a choice of short breaks and alternative non-residential provisions would be expanded to meet the additional demands for those families who wanted it. Residential short break provision would be targeted to those most in need and would be consistent with the services eligibility criteria and the council's equality policy. The eligibility criteria had recently been reviewed in consultation with parent carers and was sent out to all parents who requested an assessment. It was based on a matrix of need. The council would continue to provide residential care under the Children Act 1989 duties for children and families in need.

It was acknowledged that the proposed change in residential service provision for children with disabilities would have adverse effects. It was anticipated that there might be some loss in hours at the unit for some families who currently used the unit. In order to mitigate those effects the council would work with families to minimise them by direct payments, care at home and overnight stays with approved foster families and for the most vulnerable overnight accommodation in out of borough provisions, for example hospices or residential schools with short breaks facilities. Residential or out of borough provision was more costly but the council has a duty to provide accommodation when there were significant concerns about the welfare of a child. As many of the current users were single parent families consideration would be given to the full assessment of the needs of any specific impact brought out through a reduced overnight service at the unit. It was not possible to determine the number of families who would be negatively impacted at that stage as individual consultation was necessary to determine whether alternative short breaks options would meet their needs.

In relation to emergency care, the EIA acknowledged that it might not be possible to offer emergency care at Clement Close when that was required. However it was also acknowledged that the council had a duty under the Children Act 1989 to provide emergency accommodation and stated that it would in such situations provide an alternative provision for example foster carers or an out of borough residential placement. It was intended that the unit at Clement Close would be able to offer full overnight occupancy (four bedrooms) which was a higher occupancy than that currently achieved. A limited historic budget had meant that both units had rarely been able to achieve full occupancy on a regular basis. The average occupancy was around 70% for Clement Close and 80% for Crawford Avenue. Crawford Avenue had been closed for two nights a week since November 2010 to reduce its budget overheads. The number of children who could be offered an overnight service in the future would depend on their care package, which would vary dependent on the assessed needs of the child and their family. Based on an average of two nights per month the unit at Clement Close if adequately staffed could offer 58 children an overnights service. Families would be individually consulted with about using alternative short breaks services which could include increased direct payments, care at home and breaks in family or for the most vulnerable other out of borough residential settings.

In answer to the question whether if in its judgment the proposal had an adverse impact that impact could be justified the EIA stated that the impact of the closure of Crawford Avenue could be justified in that there was a need to make financial savings in the order of £517,000 over the next two years in order to achieve a balanced budget and there were already long term plans in place based on the decision of the Executive dated 12 April 2010 to move to one unit. It was stated that the proposal would mitigate the impact on the provision of residential short breaks for families by ensuring that there were alternative short breaks options for families. The council had increased its budget for 2011/12 for direct payments and care at home support. Care at home and direct payments were used by many more families than those who used the short break units. Direct payments were currently used by 105 families. Such payments were made available directly to parents following an assessment of needs. They could be used to purchase breaks which included the employment of personal carers and other services. Care at home services were provided directly by the council by agency workers who supported the parents in carrying out personal care and also provided short breaks.

In answer to the question what was the justification for the proposal the EIA stated that a review of services was carried out and alternative service reductions were considered. However the closure of Crawford Avenue was considered the most efficient reduction and would affect numerically the least number of families as the majority could be offered alternative provision. The effect of not closing the unit would be to make savings from current packages of care which would numerically affect more families and would not be consistent with their assessed needs. With reduced support many more families would have had difficulties managing and would be more likely to suffer health and other adverse effects which would increase the demand for out of borough residential schools and permanent care placements. It was also stated that the council was aware that many local authorities do not provide their own residential short breaks services and that nationally there is a drive to increase personal budgets (direct payments) and reduce the time that children spend in residential care away from their families and communities. The council by the proposal would still retain a residential option for families which with increased and better trained staff and an effective and efficient management would continue to be able to provide overnight care for the most vulnerable families in Brent.

At the meeting of the council Executive on 23 May 2011 at which the decision to close Crawford Avenue was taken FL addressed the meeting on behalf of a number of parents / guardians of children who use the Crawford Avenue centre who opposed the proposal. He expressed a concern that the proposal was driven by the need to save money and said that children in Brent currently using both Crawford Avenue and Clement Close would have reduced levels of access. The 23 May 2011 report was introduced by Councillor Arnold, the lead Councillor for Children and Families. She said that although the government spending review had reduced available levels of funding, the council was still trying to retain the option of offering residential breaks within the borough which was not the case in all local authorities. The eligibility criteria remained unchanged. She said that it was likely that all available places at Clement Close would be used so that any emergency provision would have to be out of borough. The Director of Children and Families advised that the estimated costs for works to Clement Close had reduced by almost half to £27,000. In answer to questions from Councillor Gladbaum, the chair of the Children and Families Overview and Scrutiny Committee, as to why Crawford Avenue had been chosen and what alternative provision outside Brent there would be, the Director of Children and Families stated that the council was trying to ensure that the facilities were suitable for all children and that to close Clement Close would not yield the same level of financial savings. Moving to alternative forms of provision had not been straightforward but direct payments were being promoted and there had been some successes. She felt it was likely that provision for emergency placements would need to be sought outside the borough. That was common practice in many local authorities. He said that the new respite centre at the Village School was due to be available towards the end of 2012, earlier than the school itself which was due to open in September 2013. Councillor Arnold said that there has been a funding reduction of £4 million leaving local authorities to prioritise needs. The minute of the meeting recorded that “she assured that no child would be left without some form of respite.” The deputy manager of Crawford Avenue told the meeting that the number of hours offered to families on an annual basis for overnight stays was in excess of the 472 hours referred to in the 23 May 2011 report as that did not account for holidays. Additionally emergency care was very expensive, 1200 hours having already been provided as of May 2011.

The Executive resolved that short breaks for children with disabilities cease to be provided at Crawford Avenue from 1 October 2011 and that staffing arrangements be restructured at Clement Close and Crawford Avenue to deliver an effective service at Clement Close to meet the full range of children’s needs.

The Executive decision of 23 May 2011 was called in by Councillor Lorber and other councillors to consider in detail the implications of closing Crawford Avenue, to consider what mitigating measures were being planned to assist parents who currently used the centre, to explore in more detail the reasons for the closure and the impact on children and their families currently using it and to consider alternative proposals.

Noreen Scott, a care worker representing the views of staff at Crawford Avenue, addressing the meeting of the OSC held on 8 June 2011, said that Crawford Avenue offered a safe haven for children in the event of “lock outs” and she doubted that foster carers would be able to provide such a service at short notice. She commented that the report had not addressed what alternative provisions would be in place in such situations and suggested that that needed to be considered further. She said that many of the children with autistic spectrum disorders using Crawford Avenue would find having to move to Clement Close very stressful which would be exacerbated by having to move to the Village School soon after. She said that Crawford Avenue had the necessary facilities for children with such disorders and cited an example of a child who had become severely agitated being calmed when placed in the sensory room, a facility she said Clement Close did not have.

FL addressed the meeting asserting that Clement Close would not offer adequate facilities for children who had severe autistic spectrum disorder whilst direct payments did not address respite needs. RB said that her daughter frequently becomes extremely agitated and aggressive resulting in her frequently needing to use Crawford Avenue for emergency respite care and that was the only centre available which had the necessary facilities and environment to calm her in such situations. She said that the direct payments system was not an option for families in her situation.

In response Councillor Arnold acknowledged that children with disabilities would find it hard to adjust to a change of environment. However she confirmed that any child who received short breaks services would continue to do so and the eligibility criteria would remain unchanged. She said that although there was a national policy shift towards direct payments, parents were not compelled to use that system. However overall there would be a reduction in residential provision and an increase in flexible short break packages. The decisions made on 23 May 2011 had brought forward the proposals to consolidate short break residential provision into one centre with the objectives of improving quality whilst protecting financial resources available.

The assistant director of Achievement Inclusion, Children and Families stated that the overnight emergency facility at Crawford Avenue had been underused and that in future such cases would either be accommodated at Clement Close or a location outside the borough. The decision to close Crawford Avenue (which I take to be a reference to the April 2010 decision) had been made on the grounds that the building was neither sufficiently suitable nor able to cater for the full range of needs and it had become impractical to continue to operate at the premises.

There followed an in depth discussion in the committee. Councillor Denselow asked if any alternative proposals had been explored and what the implications would be of delaying the implementation of the proposal. Councillor Kabir felt that more information was needed to provide assurances that an accessible and affordable service would be provided to the children and their parents. Further details were sought as to how the staggering of provision between those users with physical difficulties and those with challenging behaviour would work at Clement Close. Councillor Mistry noted the relatively low consultation response rates and asked whether any steps had been taken to encourage and help black or minority ethnic groups to respond. He asked whether the new proposals would mean a reduction in hours that the service would be provided. However he also expressed a concern that delaying the implementation of the decisions already made might lead to further costs, a view with which Councillor Bacchus concurred adding that she felt that every effort had been made to ensure the best possible outcome had been achieved from challenging circumstances.

Councillor Gladbaum felt that more evidence was needed to show that the networks-based system was sufficiently developed to enable direct payments to work effectively in the light of the reduced residentially based short break provisions. She suggested it would be helpful if a list of out of borough providers and their associated cost was available. She said that more details were needed as to how Clement Close would accommodate the additional users and asked if it was feasible to delay the closing of Crawford Avenue until 2012. Councillor Lorber queried why Barnardos had already been given notice of termination of lease while the decisions had been called in. Whilst the original decision to move to the Village School had been to improve service and increase efficiency he felt that the current proposals primarily focussed on costs. He asked for clarification as to where emergency cases would be accommodated once Crawford Avenue closed. The requirement for two successive moves would be too disruptive for both the users and their parents and Clement Close would not be able to provide an adequate service. He felt that the proposal should be reconsidered to see what was the best way to provide the service until the Village School opened. Councillor Ashraf, the chair of the committee, acknowledged that personalisation was being promoted but said that there were a number of parents who did not wish such provision and he asked whether facilities such as a sensory room could be provided through direct payments. Although there were financial reasons behind the proposals he stressed that Crawford Avenue was very popular with users whilst the needs of their parents also needed to be taken into consideration. Clement Close would not be suitable for those with learning and behavioural difficulties. Councillor Choudhry, not a member of the committee, felt that it was imperative that the council provided emergency overnight accommodation. Councillor Adeyeye felt that to ensure the quality of life for both the users and parents of Crawford Avenue the closure should be deferred until the Village School opened.

In reply to the issues raised by members of the committee and other councillors, Councillor Arnold stressed that the proposals made the best of the resources that were available. Once the works had been completed at Clement Close it would have the capacity to provide for both its present uses and those who had been using Crawford Avenue. Crawford Avenue would not have been able to accommodate both categories of user.

105 families currently had personal budgets for community based short breaks from direct payments and an additional ten families had taken up direct payments since the consultation. There had been an 8% increase overall in uptake in the last year. She acknowledged that more work was needed in expanding the market for potential providers of those on direct payments. Providing quality short break provision remained a high priority and the council aimed to provide continuous improvements in this area by using the available resources in the most effective way. The pressures on the budget meant that keeping both Clement Close and Crawford Avenue open was not feasible and she reminded the committee that the resources available needed to provide for all services within Children and Families.

The Director of Children and Families said that there had been no specific guidance in respect of assisting black and minority ethnic groups in completing the consultation on the proposals but it was expected that a larger response from such groups would have indicated support for continuing with the current arrangements. The decision to bring forward the closure of Crawford Avenue was unavoidable because of budget pressures. Children and Families were required to make overall savings of £12.5 million, meaning that many difficult decisions needed to be made. If the closing of Crawford Avenue were delayed then savings would need to be made elsewhere within the Children and Families budget. The assistant director Achievement and Inclusion Children and Families said that in respect of direct payment providers a network was in place although he acknowledged the need to expand the list of potential providers. Whilst there was to continue to be an overall shift to personalisation, the need to provide short breaks provision on a residential basis was recognised and for that reason the centre would remain in Brent to provide that. The impact on users and their parents of closing Crawford Avenue was appreciated but Clement Close had been fully risk assessed and deemed fit for purpose to accommodate the users from Crawford Avenue. He confirmed that emergency cases were currently accommodated at Crawford Avenue or Clement close and that in future such cases could be accommodated in out of borough locations while Clement Close might also be available for such provision. Crawford Avenue was presently operating under capacity and there had been some instances of it being used by other local authorities. He confirmed that six months notice was required to vacate Crawford Avenue and that that had been given to Barnardos after the proposals were agreed by the Executive on 23 May 2011. The Director of Financial and Corporate Services advised that the notice of termination of the lease for Crawford Avenue could be rescinded in the event of any decision not to leave the centre being made.

The committee was advised that the proposals fully met the Breaks for Carers of Disabled Children Regulations 2010. The committee then rejected a recommendation put forward by Councillor Lorber that Crawford Avenue remain open until the Village School opened. The original decisions made on 23 May 2011 were noted. The director of Children and Families agreed to a request to provide users and their parents with information including costs of potential providers in respect of direct payment.

In a witness statement Councillor Arnold rejected the assertion that the Executive did not pay regard to the needs specified in section 149 of the Equality Act when the decision under challenge was taken. She stated that she is very much aware of the importance of considering the equality duties and in particular the Public Section Equality Duty under section 149 of the Equality Act 2010. In March 2011 she had a detailed discussion with an officer in the council’s diversity team about the requirement process and analyses of equality impact assessments to make sure that they had a full understanding of the implications in the decision-making process. The Executive had considered at a meeting on 11 April 2011 reports regarding rationalising the use of accommodation of the council’s adult and community education service and library transformation project. Both reports had an Equality Impact Assessment attached and gave detailed guidance regarding the public sector equality duties. Thus when the Executive met on 23 May 2011 she stated that all members of the Executive were fully aware of and experienced in the need to take into account the public sector equality duty when making decisions on the future of service provision within the council. She recalled presenting the 23 May 2011 report in draft to her colleagues on the Executive at the Leader’s Briefing on 9 May 2011 and discussing the consultation that had been carried out. She referred to the Equality Impact Assessment and the points it raised in her presentation to her colleagues. She recalled a councillor asking a question regarding issues outlined in the Equality Impact Assessment concerning whether there would be capacity in the remaining centre for short breaks for children with disabilities currently being provided for, whether any children’s needs could not be met and if so what would be the arrangements. She said that those issues and issues regarding direct payments, personalised budgets and community based provision were discussed in detail.

As to the meeting with the Executive on 23 May 2011 Councillor Arnold said that she referred to the council’s Aiming High Joint Commissioning Strategy which promoted the take up of direct payments and alternative provision and diversification of service delivery, especially in advance of the opening of the Village School respite care facility in 2012. She stated that she stressed that the eligibility criteria for the provision of respite care provision had remained unchanged. She stated that all ten members of the executive accepted the recommendations set out in the report.

This topic lies at the heart of the principal issue between the parties. Some evidence in relation to it appears in the documents to which I have already referred. Strictly speaking there are two issues. First what steps did the council take to inform itself on these matters before the decision was taken and what was the state of knowledge of the council at the time the decision was taken? Second what, if any, additional facts are now known to be the case? The first is relevant to the irrationality challenge to the decision. The second may be relevant to the question of relief in so far as it throws light on what decision would be made by the council if the matter were required to be reconsidered as a result of this claim for judicial review.

The issue was addressed in a second witness statement by Ros Morris, the head of planning and resources in the social care section of the Children and Families Department of the council dated 28 September 2011. In that statement she responded to the Claimant’s first request for further information. In answer to the question how many alternative providers of short breaks services there are in Brent or within reasonable distance which families of service users might access, whether on an emergency basis or by using direct payments, she stated that there are seven domiciliary care agencies in Brent which provide domiciliary care for children with disabilities including respite/short breaks service. They can provide care at home, including on an emergency basis but do not provide residential respite care. A number of current users of Crawford Avenue and Clement Close attend schools which offer residential respite care (but not on an emergency basis), and two private providers of residential respite care in Finchley and Ilford (including on an emergency basis). She said there is also one other new private provider in Hounslow which the council would be evaluating shortly. There were also a number of providers of short breaks services (play schemes) during school holidays. She said the list is not and could not be exhaustive because the direct payments could be used by parents to purchase any other sort of short beaks provisions.

In answer to the question whether direct payments are sufficient to meet the cost of short break provision at all the providers so as to ensure the same level of short break care as each of the service users is currently receiving, Ms Morris stated that the wording of the question makes it difficult to answer because it depends upon the nature of the short breaks provision for each child. However all users of Crawford Avenue and Clement Close would continue to receive the level of short break care which they have been assessed as needing, whether by way of direct payments or otherwise.

In answer to the question what steps had been taken to assess whether alternative suppliers of short breaks services are suitable to meet the assessed needs of current service users of Crawford Avenue and Clement Close, Ms Morris stated that the list of alternative suppliers referred to above were all those currently used so that no additional assessment of suitability was required.

In relation to the impact, for current in-borough service users seeking alternative placements once Crawford Avenue is closed, of any service users of Crawford Avenue or Clement Close from out of Brent, Ms Morris stated that there were no such out of borough users of either Crawford Avenue or Clement Close in 2009 and one each in 2010 and 2011, but they were both originally Brent residents who continued to use Crawford Avenue for a limited time after moving to neighbouring boroughs. At present there were no service users from out of the borough placed at either Crawford Avenue or Clement Close and that was expected to continue. She said that the council considered that the proposal to provide services at Clement Close on alternate weeks for physically disabled service users and those who are behaviourally challenged was feasible. It was a provisional plan and there would be flexibility to adjust it once parent’s choices had been made. At the moment of the current users of Crawford Avenue and Clement Close 65% were behaviourally challenged, including those with autism, and 35% were physically disabled. Finally she stated that the council did not anticipate any significant change in the demand for short breaks services in the short term 12 to 15 month period between the proposed closure of Crawford Avenue and the opening of the Village School care facility. The council anticipated that the use of direct payments and care at home facilities would increase. She said that this was a different point to that made in the April 2010 report which stated that it had been projected that there was likely to be an increase in the number of children over the medium term requiring special educational need provision in Brent.

In her second witness statement Ms Morris also responded to the Claimant’s proposed additional grounds of judicial review, namely that the council acted irrationally and/or in breach of section 149 of the Equality Act in failing to obtain information concerning alternative provision of short breaks care. Those grounds were advanced in the documents served on 13 September 2010 on the basis that the decision to close was based on two assumptions said not to be supported by evidence: first that the closure of Crawford Avenue would not lead to a reduction in the number of hours of short breaks care that each of the 67 current users of the service would receive; and second (the assumption upon which the first assumption was said to be based) that alternative means of provision would be available, namely a combination of direct payments, foster carers and out of borough placements in alternative residential settings, to meet the assessed need of all service users and their families. The Claimant asserted that there is no evidence that before making its decision the council established whether in fact the assessed needs of all 67 users of Crawford Avenue could be met by those alternative means of provision. It was submitted that direct payments are not an alternative means of meeting assessed needs but rather an alternative means by which services to meet such needs are commissioned and paid for. If a child has an assessed need for short breaks care that must be provided in some suitable physical environment with suitably qualified staff. If short breaks care was to be provided in some other environment – whether an out of borough residential placement, foster care, or in the service user’s own home – it was still necessary for the council to satisfy itself that such placements were available and suitable for the service user before reaching its decision. Reliance was placed on the covering letter dated 3 March 2011 sent by the council to service users inviting consultation which stated “that the proposal to relocate Crawford Avenue short breaks service to Clement Close from September 2011 would “result in a reduction of service provided to users of both units.” Neither the letter nor the questionnaire attached explained what such alternative means might be other than to ask whether service users would consider moving to a direct payment scheme. The EIA dated 13 April 2011 was said to recognise that the closure of Crawford Avenue might lead to a loss in hours at the unit for some families (emphasis added). No detail was said to have been given as to how in practice the alternative means of provision referred to in that document which it was said would mitigate that loss, namely direct payments, care at home, overnight stays with approved foster families and out of borough provision in residential placements (hospices, residential schools with short breaks facilities) were to operate.

Reference was made to the 23 May 2011 report which stated that closure of Crawford Avenue would lead to an overall decrease in the hours available for in house short break care of 25 to 30% (emphasis added). It was asserted that no further detail was given. Reliance was placed on the acknowledgement by the director of Child and Families Services at the 23 May 2011 meeting that “moving to alternative forms of provision had not been straightforward, however direct payments were being promoted and there had been some successes” and the alleged lack of further information given. Reliance was further placed on Councillor Gladbaum’s statement at the OSC meeting on 8 June 2011 that there was no evidence as to how the alternative means of provision would operate in practice and his recommendation that more evidence was needed to show that the network-based system was sufficiently developed to enable direct payments to work effectively in the light of the reduced residentially based short beaks provisions and the fact that her suggestion that a list of out of borough providers and their associated costs be made available was not taken up.

In response Ms Morris stated that it was not a question of the council having made assumptions but rather that its position throughout has been that there will be no reduction in the number of hours of respite/ short breaks provision for service users as a result of the decision under challenge. She stated that the eligibility criteria for the provision of respite care would remain unchanged and that the council would continue to meet its statutory duties to children and parents/careers under the Children Act 1989 and the Breaks for Carer or Disabled Children Regulations 2010.

Ms Morris stated that the provision of respite care/short breaks services is primarily to support the parents of children with challenging needs, in particular to try and avoid family break down, although she accepted that that provision must be suitable for the child in question. She said that not only are direct payments perfectly proper means of ensuring that such provision is made, it is increasingly popular with parents. The council she said is one of a declining number of local authorities that still manage their own residential provision. Other authorities provide it through commissioned placements or direct payment.

Ms Morris gave the following explanation of the assessment process. In relation to care plans she said that an assessment of the needs of the child and his parents/carers is undertaken at the outset and it is then decided as to how best to meet the needs and what resources are required, taking into account parental preferences and the department’s eligibility criteria. In relation to children with disabilities, such resources could include respite care, direct payments, care at home, nursery provision, family support and parenting work. The amount of service provision, for example the number of hours of respite care to be provided is determined by the needs and the eligibility criteria. The needs assessment and care plans of each child receiving respite care would remain unchanged by the council’s decision to close Crawford Avenue as the criteria of the council’s provision of respite care remained unchanged and the council had stated that it would continue to meet its statutory duties.

Ms Morris clarified the 23 May 2011 report in two respects. First she said that if following the review of placement options with parents there was greater demand for respite provision for those children with challenging behaviour than those with physical disabilities the provision at the new refurbished Clement Close could easily be organised at a higher ratio than alternate weeks. Second she said that the provision of emergency respite care had never been one of the criteria of the core service delivery of either Crawford Avenue or Clement Close. However on occasions if emergency respite care has been required and there had been spaces at the appropriate unit and this would not impact adversely on the planned respite then that had been made available. If Crawford Avenue closed she said the same would apply in relation to Clement Close: that is to say emergency respite care would be provided where possible, but where it was not, it would be provided in the private and voluntary sector as had been the case over the last three to four years when either Crawford Avenue or Clement Close had not been available for the required emergency respite at the time.

The following answers were provided by the council in its draft response to the Claimant’s second Part 18 request date 30 September 2011. In relation to emergency short breaks care it was said that approximately 1102 hours were provided between June 2010 and September 2011 at Clement Close, with no short breaks sessions having been cancelled as a consequence at Clement Close. 1632 hours of emergency short breaks care were provided in the same period at Crawford Avenue, with 23 short break sessions having been cancelled as a consequence at Crawford Avenue.

In answer to the question how many Clement Close and Crawford Avenue service users had now accepted domiciliary care as an alternative to residential short breaks care, it was stated that carers of ten of the service users at Crawford Avenue had indicated that they wish to take up direct payments for care at home. Carers of eight of the service users at Crawford Avenue had indicated that they wish to take up residential provision in the private or voluntary sector. Carers of two of the service users at Clement Close had indicated that they would consider the provision of direct payments. The carers of 13 of the service users had either been unavailable or refused to discuss alternative provision in the event of the closure of Crawford Avenue until after the outcome of the judicial review claim.

In answer to the question how many Clement Close and Crawford Avenue service users were expected to be accommodated at Clement Close it was stated that council officers were anticipating and estimating that once refurbished the new Clement Close unit would be able to provide for 76 service users (64 of whom are supported at present at Crawford Avenue and 12 at Clement Close). Reference was made to the statement in the 23^rd May 2011 report that Clement Close would be able to offer overnight care to four children every night after the refurbishment works are carried out. Ms Morris stated that to date the carers of 25 of the service users currently using Crawford Avenue had agreed to be accommodated at Clement Close once it is refurbished. To date the carers of ten of the service users at Clement Close had agreed to be accommodated there after it is refurbished.

As to when the refurbishment works at Clement Close to enable children with behavioural disorder to be accommodated there were due to begin and be completed Ms Morris stated that originally they were going to take place between 12 September and 1 October 2011. However the work was put on hold following the interim order made by Collins J made on 6 September 2011. Arrangements for them to be carried out would be organised after the outcome of this judicial review claim. It was expected that the refurbishment works would take two to three weeks. As to staff training to allow children with behavioural disorders to be accommodated, Ms Morris said it was expected to last for two to three weeks. It was essential for both units to be closed for two to three weeks to enable staff training to take place as well as the refurbishment works.

In response to a request to identify the schools and private providers of alternative residential respite care in Finchley, Ilford and Hounslow referred to in Ms Morris’ second statement, it was said that the residential schools referred to are Pield Heath House Residential School at Pield Heath House in Uxbridge Middlesex and Sybil Elgar School at Havelock Road, Southall Middlesex. The alternative residential respite providers were Buckets and Spades at 1 Fairholme Gardens, in Finchley Barnet and MIG House in Ilford. The address of the Lighthouse, indirectly referred to by Ms Morris, had been obtained and was in fact based in Surbiton and not in Hounslow. In response to a request to confirm the capacity in terms of numbers of children that can be accommodated at any one time of each placement and the number of vacancies currently available at each one it was stated that Buckets and Spades in Finchley can provide short break respite care for up to a maximum of nine children but this is dependent on whether the children are mobile. If the children in the placement are all mobile then the unit can accommodate up to six children. The vacancies were dependent on the child’s profile and needs and whether the child is mobile or not as the unit can offer room sharing if the children are not mobile. MIG house in Ilford is registered to accommodate up to eight children for both long term and respite care. It is currently supporting four children from various other local authorities on a long term basis. There are currently three vacancies at the unit. The information provided by the Lighthouse was that they can cater for up to six children with either learning disabilities or autistic spectrum disorder. In relation to the residential schools, the issues of capacity and vacancy were said not to arise as it is very rare that a residential school would agree to provide respite care for a child who does not attend the residential school. It was said to be not unusual for the Commissioning Resources Team at the Children and Families Department of the council to arrange overnight respite care at the residential schools where the children are already attending as day pupils. Pield Heath and Sybil Elgar are schools which have a mixture of residential and day pupils with special needs.

It was stated that all of the above mentioned placements in Pield Heath, Sybil Elgar, Buckets and Spades, and MIG House were suitable to take children with behavioural disorders and the Lighthouse is registered to take children with either learning disabilities or autistic spectrum disorder. Buckets and Spades were said to be suitably adapted and staffed to take children with physical disabilities as well as children with behavioural disorders.

In response to a request to confirm what specific arrangements the council had in place to accommodate emergency placements once Crawford Avenue has closed, it was stated that, as stated in the 23 May 2011 report, if Clement Close is not available to provide emergency respite care provision there would be alternative emergency placements provided with a foster carer or an out of borough residential school such as Buckets and Spades in Finchley and the MIG House in Ilford and other resources that became available which might include the Lighthouse after it had been evaluated by the council.

In answer to the question what studies had been carried out to assess whether Clement Close is suitable even with adaptations for children with autistic behavioural disorders it was stated that the health and safety risk assessment which had been carried out and was referred to in the 23 May 2011 report set out a number of required works and adaptations that needed to be carried out so that Clement Close could be used to support and accommodate children with severe behavioural difficulties including autism as well as children with physical disabilities. As a result of the assessment the council was planning to carry out the required health and safety adaptations to Clement Close but those works had been put on hold pending the outcome of the judicial review claim.

In answer to a request to confirm whether the information given in answer to the above questions had been made available at the Scrutiny Committee meeting held on 8 June 2011 it was stated that the information as to how many
Clement Close and Crawford Avenue service users had indicated that they wish to take up direct payments or care at home, residential provision in the private or voluntary sector had come to light in July and August 2011 when carers of service users confirmed their preferences following the council’s decision to close Crawford Avenue. As to how many service users were expected to be accommodated at Clement Close some of the information was said to have been provided in the 23 May 2011 report and some had come to light in July and August 2011 when carers of service users confirmed their preferences. As to the answers to the questions as to the timing of the refurbishment works and staff training, the specific arrangements in place to accommodate emergency placements once Crawford Avenue is closed and the studies carried out to assess whether Clement Close is suitable with adaptations for children with autistic behavioural disorders, it was stated that much of the relevant information is set out in the 23 May 2011 report. In relation to the other questions referred to above it was stated that it was not considered necessary to provide as much detail as had been set out in the answers to the Part 18 request in the 23 May 2011 report and that such queries were not raised with council officers until 30 September 2011 and were not raised by the Claimant’s solicitors in the pre-action correspondence.

In answer to the question when it was proposed that specific alternatives would be offered to current users of Crawford Avenue reference was made to the statement in the 23 May 2011 report that once an assessment has been carried out the actual booking of the short breaks is subsequently agreed between the unit manager of the short breaks centre (at present Clement Close and Crawford Avenue) and the carer and that this is dependent on the capacity of the unit, the needs of the child, the time that the carer wants and the age and ability of other children booked in during that period. As for the way forward it was said that that is linked with the outcome of the judicial review claim. If it is dismissed it would also be linked with timetables for the staff training and for Clement Close to be refurbished. Once the outcome of the judicial review claim is known it was stated that the current manager of both units would contact the carers to agree and confirm the alternative arrangements if Crawford Avenue is closed. It was said to be not appropriate to make detailed arrangements until the outcome of the judicial review is known. Placement reviews had been carried out for 58 service users at Crawford Avenue and Clement Close and details of the preferences of the service users were set out in the answers to which I have already referred.

In answer to the question whether Children Act assessments of need had been carried out for all current service user of Crawford Avenue and Clement Close and in particular AP, ZB, KL, JS, TT and JL and if not when it was proposed that they would be carried out, it was stated that Children Act assessments of need are not the same as placement reviews. Details were provided of the Children Act assessments in respect of the named children, who were the Claimant and other supporters of the claim for judicial review. It was stated that the needs of those children had not changed as a result of the council’s decision to close Crawford Avenue. A copy of the latest Children In Need assessment in respect of AP was attached. It was said that a number of children who are supported at Crawford Avenue would have a Children In Need review assessment in the week beginning 10 October 2011 after which their care plans would be updated. Details of the current position were said to be:

In answer to the question whether any social workers assessed that Clement Close would not be a suitable placement for any of the current service users of Crawford Avenue, in particular the children supporting the claim for judicial review, it was stated that to the knowledge of council officers no social workers had assessed that Clement Close after the refurbishment works are completed would not be a suitable placement for the current service users of Crawford Avenue.

The council was asked in the second Part 18 request if it objected to the Claimant’s solicitors taking witness statements from Andrew Prophet, ZB’s social worker, to give his views as to the suitability of Clement Close as a short breaks provider for ZB and a witness statement from Noreen Scott an employed member of staff at Crawford Avenue to give her views as to the suitability of Clement Close as a short breaks provider for other service users from Crawford Avenue. Noreen Scott was the care worker representing staff’s views at Crawford Avenue whose comments to the OSC at the 8 June 2011 I have referred to above.

As to Mr Prophet he was said in the response to be a key worker in the council’s Children with Disabilities Social Work Team and not a social worker. I was told that although he is not a qualified social worker he does assessments. It was acknowledged that Mr Prophet advised his manager that when he and RB visited Clement Close on 4 July 2011 in answer to RB’s request for his opinion regarding the suitability of placing ZB in Clement Close he had agreed with her views that the Clement Close building was small in comparison to Crawford Avenue and had limited open spaces. However it was said that he confirmed that his opinion was based on the current Clement Close environment and that he did not know whether the refurbishment plans would change his views. It was stated that an additional bedroom at Clement Close would be used as a break out room which can be used for children with very challenging behaviour to address the concerns about the lack of open spaces at Clement Close and that Mr Prophet would not be aware of that. It was further stated that although ZB currently attends Woodfield School, the option of providing respite care for her at Sybil Elgar had not been ruled out but that that was not dependent on whether or not Clement Close is refurbished.

In relation to Ms Scott it was stated that she is a residential care officer working at Crawford Avenue. It was further stated that the views of managers, with respect to Ms Scott, was that Clement Close will be suitable for service users of Crawford Avenue once the health and safety refurbishment works have been completed the staff training has been completed and on the basis that both sets of children will be cared for and supported at Clement Close at different times.

In the Defendant’s additional written submissions served on 7 October 2011 it was stated that the council wishes to emphasise that the decision was taken very carefully by professional officers with extensive and day to day experience in this area. The work done included working out the total amount of provision which Clement Close would provide after the refurbishment as well as the existing usage of Crawford Avenue and Clement Close, a considered estimate of how many users would want to continue with overnight respite provision and how many parents they thought would need and choose direct payments, consideration of the rising trend of numbers in the past two years of how many parents wanted and chose direct payments. It was said that it was anticipated that there would be some parents who chose direct payments based on looking at the take up of direct payments over the past two years. It was said that officers took into account the number of children approaching eighteen years of age and reaching the point of needing support of adult services. It was further said that they also brought into the equation some estimation as to how many new cases there would be between April / May 2011 and the end of 2012 when the Village School would be open requiring respite as they would affect the numbers coming through the system of children who would come to the age of needing respite care. It was said that the responses to the further Part 18 request for further information show that to a large extend those predictions had been proved accurate. Even if the court finds that the council was on some sort of duty to satisfy itself that needs would be met it was submitted that that duty was discharged. It was stated that even on the Claimant’s case which was not accepted that the council made a bare assumption that needs would be met, there is no evidence in support of the suggestion that they will not be. Neither it was said is there any evidence to suggest that there is any assessment of need for a particular type of respite care or for any particular frequency.

In her third witness statement dated 13 October 2011 Ms Morris addressed the questions raised in my email dated 10 October 2011. Before doing so she confirmed the truth of everything said by Mr Greatorex during the course of the oral hearing in response to similar questions from me and everything said in the council’s additional written submissions. Although most of what was said in the latter document took the form of submissions, it included the factual matters to which I have just referred.

Ms Morris said that it was the position of the council when taking the decision to close Crawford Avenue that after the planned refurbishment Clement Close would be suitable for meeting the assessed needs of children and carers such as the Claimant and her child and the other carers and children in respect of whom witness statement were served. She said that officers considered that after the refurbishments and adaptations and staff training have been completed the needs of the service users at Crawford Avenue including the Claimant and her child and the other carers who have submitted witness statements and their children can be at a refurbished Clement Close. Children with behavioural disorders would not be supported at Clement Close at the same time as those with physical disabilities. Although Clement Close is not as big as Crawford Avenue it has four bedrooms on the first floor and a lift linking the ground and first floor whereas Crawford Avenue has no lift. On the first floor in addition to the bedrooms there is an extra room which is used as a meeting room and which doubles up as a “music room”. On the ground floor there is a lounge, a dining room, a kitchen, a sensory room and an extra room which will be converted into a break out room as part of the refurbishment works to be carried out. The garden in Clement Close surrounds the building in an “L” shape and the distance between the building at Clement Close and the back of the garden is approximately 50 feet. Officers took the view that although the garden is not as large as that at Crawford Avenue it is of a sufficiently reasonable size for it to be suitable for children with behavioural disorders. As to whether the council was satisfied and if so on what basis that sufficient places would be available to meet the assessed needs of children and carers such as the Claimant and her child and the other carers and children in respect of whom witness statements have been served, Ms Morris stated that the council could not be certain that there would be sufficient places available at Clement Close for all users at Crawford Avenue. That was because although both Crawford Avenue and Clement Close were only being used at approximately 70 to 80% capacity there was expected to be a loss of capacity of 25 to 30% as a result of the closure of Crawford Avenue. However she said that even if the council could have been certain at the time because for example a number of families moved away and/or the children transferred to adult services it would be aware that this could change at any time if the number of children needing respite increased for any reason.

However Ms Morris said that the council considered it likely that there would be sufficient places at Clement Close. This was based on the following matters. Professional officers from the Children and Families department of the council with day to day experience in this area first estimated how many they believed would want to continue with overnight respite provision since as stated in the 23 May 2011 report those children would be give priority over children who only receive day care. They also estimated how many parents they thought would need or choose direct payments as an alternative to Clement Close. They looked at the rising trend in numbers in the past two years as to how many parents wanted and chose direct payments in respect of other matters. It was anticipated that there would be some parents who would choose direct payments based on looking at the take up of direct payments over the past two years. Officers also brought into the equation some estimation as to how many new cases there would be between April / May 2011 and the end of 2012 when the Village School would be open requiring short breaks as they have details of the numbers coming through the system of children who would be the age of possibly needing respite care. As stated in the 23 May 2011 report where there were carers who had been assessed for overnight short breaks and did not wish to take up the options of direct payments and care at home, other options including specialist foster care and out of borough resources would also be considered as the report stated that the carers would receive the same allocation of hours although there would be limited flexibility for them in how the council met the carer’s needs in respect of their allocated hours of respite short beaks care provision.

Ms Morris stated that to the extent that the council could not be certain for the reasons given about the demand for Clement Close, it was satisfied that the other premises referred to in the draft answer to the Claimant’s Part 18 request would be suitable and that sufficient places would be available. Even if Clement Close could not meet all the demand it would be able to meet most of it so that the number of any unsatisfied service users was judged likely to be small. The council has a Commissioning and Resources Team (“CRT”) referred to as the Commissioning Team in the 23 May 2011 report which commissions all child care placements (not just respite care provision) in the private and voluntary sectors. The CRT commission and manage the arrangements of approximately 350 care placements for children including respite care in the private and voluntary sector including Bucket and Spades in Finchley and MIG in House in Ilford. They also liaise with the residential schools to provide overnight respite care to service users who attended those residential schools during the day. If there was more respite care to be provided in the private sector Ms Morris stated that CRT already have resources in place as they are an experienced team with the contacts, negotiating skills and knowledge, including referral details and London database of private care placement providers.

Ms Morris stated that to the extent that the above provision proved to be insufficient it was the position of the council that the assessed needs of children and carers such as the Claimant and her child and the other carers and children in respect of the witness statements that were served could lawfully be met in some other way such as direct payment and/or domiciliary care. She said that the council already has a direct payments system in place which will develop further in line with council tendering for contracts for direct payments in the next 12 months with other west London boroughs. At present 113 parents with children with disabilities in Brent, excluding those currently supported at Crawford Avenue and Clement Close, are receiving direct payments. As for care at home, the council already provides a care at home service on a spot purchase basis with three or four private providers. The care at home service is being developed further as part of a framework contract so as to have a better commissioning process. At present approximately 60 parents with children with disabilities in Brent excluding those currently supported at Crawford Avenue and Clement Close use care at home services. It was the council’s position that the need for respite / short break provision could lawfully be met in either of these ways because they would permit the parents / carer to have the allocated hours of respite per year.

Ms Morris elaborated on the issue of the process of assessing needs and deciding what provision is regarded as suitable for meeting those needs. She said that there is no separate assessment of the child’s need for respite / short breaks. Rather it is part of the overall assessment of need. An assessment of the parents / carer’s needs is also carried out at the same time. If the child in need assessment identifies that a child has a significant high level of challenging needs and behavioural difficulties and that the carers are struggling to meet such levels of needs a more detailed assessment is required and undertaken in order to determine if they need to be accommodated under section 20 of the Children Act 1989 and an appropriate placement is then identified for the child. This only applies to a small number of children and in most circumstances an appropriate placement would be a 52 week residential school placement. Ms Morris stated that none of those small groups of children are supported at Clement Close or Crawford Avenue as that level of need is beyond the provision of what short break respite care units can provide.

Where the parent/carer’s needs are assessed to be significant the parent/carer can request a separate and more detailed assessment of their needs separately from the child in need assessment. This has only been the case for a small number of parents/carers within the whole of the Children with Disabilities Service of the Council. With regard to the Claimant and the witnesses in this judicial review claim, Ms Morris stated that she was only aware of one such carer’s assessment and that assessment was previously carried out in respect of PM.

In the alternative scenario, which is far more common, there is simply an identification of a need for respite/short breaks provision (or not) and whether the need (if it is identified) is for overnight respite/short break or not. That need is quantified as a number of hours per annum. This is in line with the practice of most local authorities in meeting their duties under the Children Act 1989 and the Breaks for Carers of Disabled Children Regulations 2010. Ms Morris stated that she is not aware of any case in which the council has ever identified a need for a particular type of respite/short break provision, other than extremely specialised provision (e.g. hospice care), which is rare.

Once the assessment of need has taken place, the decision as to what resource should be provided to meet the assessed need is made after considering the range of available resources and discussion with carers. At this stage, a number of factors are considered including family circumstances, housing, and parents’ ability to manage finances. After discussion and negotiation with carers regarding the available options, including short break respite care at a unit, direct payments, specialist foster care and care at home, a decision is made by the council on how to meet the assessed need.

It is at this later stage that the issue of what is most suitable is considered. However, because the need being addressed by short breaks provision is that of the parent/carer for respite, issues such as a large garden or a sensory room would not be identified as part of that need or the provision to meet it (although of course if what is desirable – from any point of view – can be provided then it would be). If home care would not be suitable because, for any reason, it was judged that this would not meet the parents/carer’s need for respite then that need would be met either by ensuring it took place at Clement Close or in the private and voluntary sector or by explaining how direct payments could be used to pay for a carer to take the child out of the home to a suitable venue or activity. That is how some parents use direct payments.

In the course of the oral hearing Mr Greatorex handed up copies of a Child In Need Review Assessment for AP compiled on 14 April 2004, a later document dated 5 August 2004 and a Child – Young Person In Need Plan for AP dated 4 October 2011. These documents were provided in response to a request by me to see examples of how the process of assessing needs and indentifying suitable provision is conducted. It was explained that in the time available it had not been possible to locate AP’s initial written assessment of needs or his original care plan. It follows that caution should be exercised in considering what if any inferences can be drawn from these documents.

The 2004 Child In Need Review Assessment stated that AP had originally been referred by his physiotherapist to receive a day care placement to improve his interaction with others and that his current care plan was that he attended a nursery on a part time basis. There was a section addressing what changes there had been in AP’s needs. This referred to AP having tantrums when he does not get his own way and difficulty listening to instructions. AP’s mother was recorded as saying that AP would kick hit and throw things when he becomes angry and that the family are affected by this as they have objects thrown at them. She said that the behaviour happens quite regularly. In answer to the question whether there were further changes that needed to take place in order for AP’s needs to be met it was stated that he would benefit from more structured activities during the school holidays whereby he and his family would benefit from respite. He would also increase his socialisation with members of the Brent community. There was no reference to what kind of respite AP and his family would benefit from or for how many hours. However in the 5 August 2004 documents there was a record of the council’s Disabled Children and Young Persons Service Resource Panel having agreed an allocation of 472 hours respite care for day care and overnight break.

In the Child – Young Person In Need Plan dated 4 October 2011 it was stated that AP has a Special Educational Needs Statement which is reviewed annually. The purpose of the plan was said to be to minimise the impact of his condition, supporting to reach his full potential, develop his independence and explore options for his to access mainstream provision. In the plan itself there were three desired outcomes identified: for AP to access mainstream school community services, for CMHS to support his family and establish issues relating to his toileting and thirdly to support AP’s parents in their ability to continue to care for AP by providing short breaks services which meet AP’s needs. In relation to the third desired outcome the action identified was: “Crawford Avenue to continue to offer day care short breaks for a minimum of seven hours per month to [AP]. After school care to be offered one day per week. This service may transferred to Clement Close. Option of direct payments.” The meeting which generated the plan was recorded as having taking place on 11 July 2011 and been attended by AP’s mother, a consultant neurologist, a consultant neurosurgeon, a consultant community paediatrician from Brent community services, a neurologist, a nurse at the Village School and a social worker. It was stated that Crawford Avenue had continued to offer day care and after school care for AP and it was reported that he was doing well at the unit and was described as a bright boy and good at articulating needs. The only concern reported was that he withdraws from group activities when he soiled himself. Under the heading views and comments it was recorded that AP likes to attend short breaks services and enjoys physical activities.

Section 17 of the Children Act 1989 provides so far as relevant for present purposes:

Paragraph 1(1) of Part 1 of Schedule 2 to the Children Act 1989 provides that:

In R (RG) v Barnet London Borough Council and others [2004] 2 AC 208 the House of Lords held that section 17 (1) does not impose a mandatory duty on local authorities to meet every individual child’s assessed needs regardless of resources. The duty imposed by section 17(1) is a general duty owed to all the children who are in need within the local authority’s area and not to each child in need individually. On the other hand Lord Hope of Craighead, with whose speech Lord Millett agreed held that the specific duty imposed on the local authority by Paragraph 1 of Schedule 2 will involve assessing the needs of each child who is found to be in need in their area as paragraph 3 makes clear. Paragraph 3 provides that where it appears to a local authority that a child within their area is in need, the authority may assess their needs for the purposes of the Children Act 1989 at the same time as any assessment of his needs is made under three specified Acts or any other enactment.

Lord Millett held that a social services authority which provides a range and level of services appropriate to meet the various needs of children in its area has discharged its duty under section 17 (1). That cannot be read as a duty to meet the needs of any particular child. It is sufficient that the authority maintains services for which his particular needs make him eligible. He also held that the social services authority is obliged to assess the needs of the individual child. The existence of a power to provide assistance to a class involves a duty to consider whether a particular individual is eligible for such assistance and in the present context he held that that involves assessing the needs of the child in order to decided whether and the extent to which the authority will meet his needs. Like Lord Hope he also held that the relevant duty is expressly provided by paragraphs 1 and 3 of Schedule 2 to the Children Act 1989 (paragraphs 109 and 110).

Lord Scott of Foscote held that section 17 (1) does not impose a mandatory duty on a local authority to take specific steps to satisfy the assessed needs of a child in need. If a mandatory order against a local authority to take some specific steps is sought the applicant must either point to a specific duty to take them imposed elsewhere in the Children Act 1989 or in other legislation or must invalidate the local authority’s decision to decline to take the step on the usual reasonableness and proportionality grounds available in judicial review challenges (paragraph 135).

Paragraph 6 of Schedule 2 to the Children Act 1989 provides:

In the exercise of the powers conferred by paragraph 6 (2) of Schedule 2 to the Children Act 1989 the Secretary of State for Education made the Breaks for Carers of Disabled Children Regulations 2011 which came into force on 1 April 2011. Those Regulations included the following:-

Section 20 of the Children Act 1989 provides so far as relevant as follows:

In R (JL) v Islington LBC [2009] 12 CCLR 322 at paragraph 96 Black J (as she then was) held that section 20 (1) (c), which she described as imposing a stringent duty, is designed to cope with actual crises and not with possible or prospective ones. She held that no duty under section 20 (1) arises where the most that can be said is that without assistance, even assistance by way of temporary accommodation, a parent may (or possibly, even, will) be prevented from providing the child with suitable accommodation or care. She added that she did not have to go so far as to say that short breaks can never come within section 20 (1), that being an issue which would have to be determined if it arose within a particular case. It would in my view appear to follow that there is no specific duty imposed on a local authority under section 20 (1)(c) owed to an individual child to provide emergency short break residential care until and unless an emergency has arisen such as to bring the circumstances within the wording of the subsection.

Statutory guidance published by the then Department for Children Schools and Families in April 2010, entitled Short Breaks: Statutory guidance on how to safeguard and promote the welfare of disabled children using short breaks (the “Short Breaks Guidance”), states that short breaks can be provided by local authorities through the use of their powers under either section 17 (6) of the Children Act 1989, which grants local authorities a power to provide accommodation as part of a range of services in order to discharge their general duty to safeguard and promote the welfare of children in need or under section 20 (4) of that Act, which grants local authorities a power to “provide accommodation for any child within their area (even though a person who has parental responsibility for him is able to provide him with accommodation) if they consider that to do so would safeguard or promote the child’s welfare.” (Paragraph 2.4). It further states that before making, and when reviewing, a decision about whether to provide accommodation under section 17 (6) or section 20 (4) of the 1989 Act there would be a careful assessment of the child’s and family’s needs that addresses a number of factors which are set out. One factor is the length of time away from home and the frequency of such stays and it is stated that the less time a child spends away from home the more likely it is to be appropriate to provide accommodation under section 17 (6). Another factor is stated to be whether short breaks are to be provided in more than one place. It is stated that where the child spends short breaks in different settings, including residential schools, hospices and social care placements, it is more likely to be appropriate to provide accommodation under section 20 (4) (paragraph 2.8).

Where the local authority provides a sitter or overnight carer in the child’s own home, the child is not being provided with accommodation by the local authority and the authority is therefore providing the short breaks service under section 17. (Paragraph 2.10). Different requirements as to making of care plans applied depending on the legal provision under which short break care is provided. The positions is summarised in table 1 on page 16 of the Guidance. Where a child is provided with accommodation under section 17 (6) of the Children Act 1989 the Care Planning, Placement and Case Review (England) Regulations 2010 do not apply. No short break care plan is required but a Child In Need plan is required in accordance with the Assessment Framework. Where a child is provided with accommodation under section 20 (4) for a continuous period of more than 24 hours the authority must make a short break care plan. The Guidance states that the responsible authority should not make any significant change to the care plan unless the change has been further considered at a review. (Paragraph 2.27). This appears to apply to care plans where the 2010 Regulations apply as distinct from Child In Need plans where they do not.

One of the reasons for issuing guidance was stated as being that the pattern of short breaks has changed substantially since the publication of the original volume 2 of the Children Act 1989 guidance. There has been a shift away from longer periods in residential or foster care to shorter periods often in the child’s own home or community. Many of these services are now provided through direct payments. Aiming High for Disabled Children contributed to this change by requiring a rapid rise in the amount of short breaks available to disabled children and their families. (Paragraph 1.7).

The council relies heavily on what it characterises as unacceptable delay on the part of the Claimant. It submits that by reason of delay the Claimant should not be given permission to rely on the proposed additional grounds of judicial review served on 13 September 2010 namely “irrationality / breach of section 149 in failing to obtain information concerning alternative provision of short breaks care”. Alternatively the council submits that by reason of delay even if permission is granted relief should be refused. The council makes the same submission in relation to the Claimant’s alternative application to challenge the decision to implement the decision to close Crawford Avenue before Clement close has been refurbished and alternative placements have been identified and assessed as suitable for all current users of Crawford Avenue including suitable emergency placements. In the further alternative the council submits that in respect of the sole surviving ground of challenge against the initial decision to close Crawford Avenue for which permission was granted by Collins J on 6 September 2011, namely breach of section 149 of the Equality Act, relief should be refused by reason of delay.

So far as permission is concerned, the obligation imposed by CPR 54.5 (1) is to file the claim form (a) promptly and (b) in any event not later than three months after the grounds to make the claim first arose. So far as refusal of relief is concerned, section 31 (6) of the Supreme Court Act 1981 provides that “Where the High Court considers that there has been undue delay in making an application for judicial review the court may refuse to grant (a) leave for the making of the application; or (b) any relief sought on the application, if it considers that the granting of the relief sought would be likely to cause substantial hardship to, or substantially prejudice the rights of, any person or would be detrimental to good administration.”

I was told by Mr Greatorex who was present at the permission hearing on 6 September 2011 when Collins J gave the Claimant permission to apply for judicial review of the initial decision to close Crawford Avenue that, although he rejected the council’s submission that permission should not be granted by reason of delay, he said that that decision was without prejudice to the right of the council to raise the question of delay at the substantive hearing of the claim for judicial review in the context of relief.

It may be that Collins J’s observation was made with the decision of the Court of Appeal in R (on the application of Lichfield Securities Ltd) v Lichfield DC [2001] EWCA Civ 304 in mind. In that case the Court of Appeal held that where a court grants permission on the basis that the claim was brought promptly, the court dealing with the substantive hearing may still consider the question whether the claim was made without undue delay for the purpose of deciding whether the discretionary grounds for refusing a remedy set out in section 31 (6) of the Supreme Court Act 1981 apply. Citing the judgment of the court Sedley LJ said:

“While ultimately it is a matter for the judge hearing the substantive application, we consider that the appropriate course in a situation such as arose both in RSPB and before Turner J is that the respondent should be permitted to canvass by way of undue delay, an issue of promptness which has been decided at the leave stage in the applicant’s favour only (i) if the judge hearing the initial application has expressly so indicated, (ii) if new and relevant material is introduced on the substantive hearing (iii) if, exceptionally, the issues as they have developed at the full hearing put a different aspect on the question of promptness or (iv) if the first judge has plainly overlooked some relevant matter or otherwise reached a decision per incuriam.” (Paragraph 34).

The claim form in this case was issued on 23 August 2011. The decision to close Crawford Avenue was taken by the executive on 23 May 2011. The decisions taken by the OSC not to agree to a recommendation that Crawford Avenue should remain open until the Village School opens and to note the decisions made by the Executive on 23 May 2011 were taken on 8 June 2011. On 1 July 2011 the Claimant sought legal advice from Ms Florence Cole a solicitor at the Harrow Law Centre. The Claimant’s explanation for the time it took her to take legal advice is that she had approached many solicitors who advised her that they do not do public law. It was a friend who informed her about Harrow Law Centre after she explained to her the problems she faced in getting legal advice for her case.

On 4 August 2011 Ms Cole sent a letter before action to the council. In a witness statement Ms Cole said that this was sent as soon as she was able given the limited resources available to the law centre and the need for very careful consideration to be given to the complex background in the matter. It was a detailed nine page letter. On 15 August 2011 the council replied attaching copies of the 23 May 2011 report, minutes of the meetings of the Executive on 23 May 2011 and the OSC on 8 June 2011 and the 12 April 2010 report to the Executive.

On 1 September 2011 Ms Morris signed a witness statement opposing the Claimant’s application for permission to apply for judicial review and an interlocutory injunction to prevent the council taking further steps to close Crawford Avenue and to continue to fund existing placements there until final determination of the claim. She said that the council would face numerous practical difficulties some of which were very considerable and some of which were near insuperable if either order was made. First she relied on the fact that the council had served notice to terminate its lease of Crawford Avenue on Barnardos, the landlord on 2 June 2011. The notice expired on 7 December 2011. The lease was entered into on 16 July 2007 for a ten year term from 1 August 2007. She acknowledged that, although the notice to terminate was served six days before the OSC was due to decide whether to refer the decision under challenge back to the Executive for reconsideration, the erroneous view had been expressed by some council officers that it could be withdrawn if the OSC decided to refer the decision back. Ms Morris said that she had been advised that this was wrong in law. The council could not unilaterally withdraw its notice to terminate the lease so that it would be impossible to keep Crawford Avenue open after 7 December 2011 without the agreement of Barnardos and even if the council were compelled by a court order to keep it open it would be forced to agree whatever terms were insisted on. She did not know what plans Barnardos have for Crawford Avenue after 7 December 2011 but said that there was no intention at that stage to enter into negotiations to seek to waive the notice to terminate the lease or otherwise enable Crawford Avenue to remain open after 7 December 2011. That was because even if negotiations were successful and the terms reasonable if the claim was dismissed the council would have to serve a further notice to terminate giving another six months notice during which time the council would have to pay the rent, currently £32,250 per annum.

In her second witness statement dated 28 September 2011 Ms Morris stated that following Collin’s J order dated 6 September 2011 granting interim relief Barnardos had confirmed orally to the council that they were willing to grant the council a minimum term of six months from 7 December 2011 for a rent of at least £42,500 a year, which is over £10,000 a year more than the current rent. Ms Morris said that if the council were forced to keep Crawford Avenue open it would be in a very weak position to negotiate a lower level of rent which would impact on the amount of savings it could make in this area. She added that Barnardos had contacted the manager at Crawford Avenue following the 6 September 2011 hearing to assess what works need to be done before the expiry of the lease. She said that if Barnardos were to serve a schedule of dilapidations and use that as further leverage against the council in relation to the amount of rent for continuing to use Crawford Avenue after 7 December 2011 that could put the council in further difficulties.

In her first witness statement Ms Morris said that nine members of staff are due to leave the employ of the council following the decision to close Crawford Avenue, four as a result of compulsory redundancy, five as a result of voluntary redundancy, notices being served on 22 July, 23 July, 25 July, 26 July and 3 August 2011 respectively. All nine work at Crawford Avenue, two of them as managers. In her second witness statement she corrected this saying that only eight of the nine work at Crawford Avenue. She did not specify which of the notices were served by the council and which by the employees. For six of the staff the effective date of termination would be 16 October 2011, for the other three the effective dates would be 2, 9 and 26^th October 2011 respectively. The council’s plans were that from 9 September 2011 when Crawford Avenue was due to close these nine members of staff would use up their annual leave entitlement and thereafter take gardening leave until the expiry of their respective redundancy notice.

In her first witness statement Ms Morris said that it would be impossible to keep Crawford Avenue open after 2 October 2011, the date the first redundancy was due to take effect or at the latest 26 October 2011, the date on which the last was due to take effect, without the agreement of the members of staff. If the council was compelled by court order to keep Crawford Avenue open it would be forced to agree whatever terms were insisted on by the staff. It was not known whether the members of staff involved had already made other plans or sought or obtained alternative employment. The possibility of hiring new staff even on a temporary / locum / agency basis was extremely unattractive. It would be very difficult to find and place such a significant number of staff with sufficient expertise in a relatively short period. It is difficult to recruit members of staff of sufficient quality on a temporary basis. It would also be more expensive than employing permanent staff. In her second statement Ms Morris said that meetings had been arranged with the nine employees to negotiate what would happen if the judicial review is allowed. The first meeting would not take place until 28 September 2011. She expected all the meetings to have taken place before 6 October 2011 and said that she would provide a further update via the council’s counsel at the date of the hearing or sooner if possible. In fact so far as I am aware no such update was in fact provided. Ms Morris said that it would have an immense detriment to staff morale to have a duplicate consultation process and create new anxieties in respect of staff future employment stability given that there would in any event need to be a totally new and additional consultation with staff in respect of the eventual closure of both units in line with the move to the new respite care unit at the Village School.

In her first witness statement Ms Morris said that the council had obtained a quote for the necessary health and safety works to Clement Close to enable it to support children with severe behavioural difficulties in the sum of just over £27,000 plus VAT which was much less than the council’s original estimate of £50,000. That contractor was on standby to start carrying out the works on 12 September 2011 with a view to completing the works within three works so that Clement Close would be ready by 3 October 2011. The council would not suffer a financial penalty if after the hearing on 6 September 2011 it were forced to postpone or cancel that contract. However it was concerned that it might not be able to obtain such a favourable quote in the future and it was concerned as to the impact which carrying out the refurbishment works at a later date would have on service users. It had been expected that the training for the staff who would work at the new Clement Close facility to enable them to care for both categories of children (those with severe behaviour difficulties and those with physical disabilities) would last for three works between 12 September and 30 September 2011. If the interim relief was granted (which in this event it was) Ms Morris said that the training would have to be cancelled and take place at a later time. She did not know what the financial consequences would be for the council if the training were postponed or cancelled.

Ms Morris in her first statement expressed concern as to the impact of the judicial review claim on the existing 76 service users who currently use Crawford Avenue and Clement Close. She said that placement plans were reviewed in July and August 2011 and the parents using both units were given four post-closure options: respite care services to be provided at Clement Close, provision of care at home, use of direct payments and other private or voluntary arrangements. In respect of the first option the Clement Close manager was in contact with parents to organise the service with them. The parents who preferred the other options had been referred back to the Children with Disabilities Social Work Team so that the children’s care plans could be considered and amended accordingly. All of that work would be put on hold or undone if interim relief or the final relief sought were granted.

Moreover bookings for respite care for October and November 2011 at Clement Close had already been made but not for the three weeks in which it had been planned for Clement Close to be closed. It was said that if the application for interim relief were granted Crawford Avenue would have to be kept open and that would mean that Clement Close would also be kept open as it would make no sense to carry out the refurbishment works at Clement Close and the training programme would also not go ahead. That would mean that respite care bookings for both Crawford Avenue and Clement Close for September 2011 would have to be made at short notice and it was very likely that Crawford Avenue and Clement Close would not be used at full capacity in September 2011 as some parents were likely to have made alternative arrangements. Moreover if the claim for judicial review were to fail the three week closure of Clement Close would have to be rebooked to allow the refurbishment and staff training to take place. The bookings taken for that period would then have to be cancelled and that would mean the service users having to experience major disruption in reorganising their respite care arrangements with the council.

On 6 September 2011 Collins J gave permission to the Claimant to apply for judicial review on the three existing grounds. On 13 September 2011 the Claimant served her proposed additional grounds and request for further information. On 28 September 2011 the council served its further evidence and response to the Claimant’s request for further information. On 3 October 2011 Mr Bowen, the Claimant’s new counsel, served his skeleton argument for the hearing on 6 October 2011 together with the document indicating her intention to seek permission to challenge the decision to implement the decision to close Crawford Avenue before Clement Close has been refurbished and alternative placements have been identified and assessed as suitable for all current users of Crawford Avenue including suitable emergency placements. I was told that on 3 October 2011 relevant council officers were involved in an OFSTED inspection and on 4 and 5 October 2011 Mr Greatorex was engaged in a two day trial at the Birmingham County Court. The hearing of the claim for judicial review was on 6 October 2011.

In her original grounds and statement of facts relied upon dated 21 August 2011 the Claimant, responding to a delay based challenge in the council’s response to her letter before action, contended that any challenge to the substantive decision to close Crawford Avenue before the outcome of the OSC call-in was known might have been premature. The court was invited to find that time started to run on 8 June 2011 when the OSC refused to refer the closure decision back to the Executive for consideration. On that basis she submitted that the claim was brought well within time. If she was wrong and time started to run on 23 May 2011 she contended that the challenge to the substantive decision was brought on the last available day within three months. It was accepted that this may not constitute a prompt response but submitted that there was good reason for delay on the part of the Claimant. Reliance was placed on the fact that it was only after the OSC on 8 June 2011 that she realised that she needed to take legal advice and that it was only after she had approached a number of local solicitors who did not take public law cases that she was referred to the Harrow Law Centre on 1 July 2011. As the parent of a seriously disabled child it was submitted that that was not an unreasonable delay. Reliance was also placed on the very limited resources available to the Harrow Law Centre. Ms Cole works part time as do her colleagues and she has responsibility for all the administration of the law centre as well as case work. Any delay by the law centre in those circumstances was not unreasonable. Reliance was further placed on the prompt issue of proceedings after receipt of the council’s response to the letter before action. If necessary the court was invited to extend time for service of the claim for judicial review.

In the summary grounds of defence dated 1 September 2011 it was not accepted that the relevant date from which time began to run for the purpose of CPR 54.5 is 8 June 2011 when a different committee of the council refused to refer the closure decision back to the Executive for reconsideration. All that the OSC could have done, it was submitted, was to ask for reconsideration. Even if that was wrong it was submitted that the claim was in any event not brought promptly, that there was no good reason for the delay and that the council would suffer the adverse consequences referred to in Ms Morris’ first witness statement if relief were granted.

At the hearing on 6 October 2011 there was no transcript of the reasons given orally by Collins J on 6 September 2011 for granting the Claimant permission to apply for judicial review and the interlocutory injunction to restrain the closure of Crawford Avenue until determination of the full claim. In particular I was not told whether he extended time for bringing the claim or considered that it had been brought not later than three months after the grounds to make the claim first arose. However since the sealed order made on 6 September makes no reference to an order extending time I infer that it was the latter. Nor on the papers before me is it entirely clear when the claim for judicial review was issued. It is referred to in the claim bundle indices and skeleton arguments as having been issued on 23 August 2011. The grounds and statement of facts relied on however are dated 21 August 2011 and there is a fax confirmation report dated 22 August 2011 timed at 12:01 from Ms Cole to the council enclosing Form N463, the application for urgent consideration and interim relief. Part of the interim relief sought was an order for the Claimant’s time for filing her claim form to be extended to the date the order was sealed by the court should it be necessary.

In granting the Claimant permission to apply for judicial review Collins J appears to have taken the view either that the claim for judicial review was issued promptly in all the circumstances or that having regard to all the circumstances the Claimant’s delay in issuing the claim for judicial review did not justify refusing permission in the exercise of the discretion conferred on him by section 31 (6) of the Supreme Court Act 1981 which permits a court to refuse to grant permission to make an application for judicial review if it considers that there has been undue delay. In reaching that conclusion it is to be inferred that Collins J took into account both the Claimant’s explanation for her delay in getting legal advice from the Harrow Law Centre until 1 July 2011 and Ms Cole’s explanation of the limited resources available to the law centre and the considerable demands on it. It is also to be inferred that Collins J took into account the matters relied on by Ms Morris in her first witness statement as constituting prejudice to the council in the event that permission were granted, including in particular the council’s inability to keep Crawford Avenue open after 7 December without the consent of Barnardos who could force it to agree whatever terms it insisted on for a new lease and the fact that redundancy notices had been served in respect of nine (as she then incorrectly thought) members of staff which were due to take effect on 2, 9 and 26 October 2011 respectively. The inference in my view is that Collins J is likely to have considered that the potential detriment to the Claimant and her child together with other users of Crawford Avenue in the event of Crawford Avenue being closed down as a result of an unlawful decision on the part of the council outweighed any detriment to the council and/or members of staff and/or any inconvenience to users of Crawford Avenue and/or Clement Close flowing from delay caused by the judicial review proceedings in the event that those proceedings were ultimately dismissed.

I accept of course from Mr Greatorex (Mr Bowen was not present) that Collins J at the hearing on 6 September said that his grant of permission was without prejudice to the council’s right to rely on the Claimant’s alleged delay in seeking to resist any relief sought by the Claimant on the application. However, given that some of the detrimental consequences alleged by Ms Morris in her first witness statement were on her case likely to flow from the granting of permission even if the claim for judicial review were ultimately refused (such as the asserted impossibility of keeping Crawford Avenue open after 2 October 2011, the date the first redundancy was due to take effect, the risk of escalating the costs of refurbishment of Clement Close if the contractor with the £27,000 “was unable to start” on 12 September 2011 and the cost of deferring the retraining of staff for Clement Close planned for the three weeks between 12 September and 30 September 2011), it is in my view to be inferred that Collins J did not consider that those matters would in themselves justify refusing the Claimant relief to which the court ultimately concluded she was otherwise entitled on those grounds alone. Rather it is in my view to be inferred that what he had in mind was that the council should be free to resist the relief sought by the Claimant at the substantive hearing by relying on additional matters not considered by him which the council might wish to rely on as constituting substantial hardship to or substantial prejudice to the rights of any person or detriment to good administration as set out in section 31(6)(b) of the Supreme Court Act 1981.

If Collins J had taken the view that the Claim was served more than three months after the grounds to make the claim first arose and extended the time for filing the Claim pursuant to CPR 3.1(2)(a), it is likely that that finding was final and could not be reopened by the council at the substantive hearing before me. See R v Criminal Injuries Compensation Board ex parte A [1999] 2 AC 330 in which the House of Lords was concerned with RSC order 53 but as the editors of the White Book suggest, rightly in my view, the same reasoning would apply to CPR Rule 3.1(2)(a). (See the notes at 54.5.1).

On the assumption however that Collins J found that the Claim Form was issued not later than three months after the grounds to make the claim first arose and promptly it would only be open to the Council to re-canvass the question of undue delay if one of the four conditions identified by the Court of Appeal in Lichfield applied. It is not entirely clear from the judgment of the Court of Appeal in Lichfield whether that principle was intended to govern only the circumstances in which the question of whether the Claim Form was filed promptly may be re-canvassed at the substantive hearing or whether it was intended also to govern the circumstances in which a finding that permission should be granted notwithstanding a finding that the Claim was not filed promptly may be re-canvassed at the substantive hearing. In other words, where the court granting permission found that notwithstanding that the claim was not filed promptly there was no prospect of substantial prejudice or hardship to any person which required the discretion to be exercised against the grant of permission, is the Defendant prevented from re-canvassing the question whether the granting of the relief sought would be likely to cause substantial hardship to or substantially prejudice the rights of any person or would be detrimental to good administration unless one of the four conditions specified by the Court of Appeal in Lichfield applies?

In Lichfield Sedley LJ held: “The critical question in this case however is at what stage or stages the prescribed tests may be applied or – importantly – re-applied. Here the Rules and the Act provide most of the answers. Regardless of whether it involves repetition of arguments on promptness already considered at the leave stage, undue delay is placed by section 31(6)(b) on the agenda at the substantive hearing. On this short ground it seems to us that, notwithstanding Keene LJ’s finding of promptness, the related question of undue delay lay within Turner J’s jurisdiction at the substantive hearing. … But it does not follow, in our judgment, that the judge at the substantive hearing should proceed as if the issue had never previously arisen in the case, at least where it has been properly argued out between the parties at the leave stage. It is necessary to place beside Simon Brown J’s example of a full Divisional Court being told that it is bound by a single judge’s view of promptness the equally undesirable – and today more likely – situation of one judge of the Administrative Court effectively acting as a Court of Appeal from another, or (as happened here) deciding an issue without reference to a fellow judge’s earlier decision inter partes on substantially the same question and upon the same materials. While ultimately it is a matter for the judge hearing the substantive application, we consider that the appropriate course in a situation such as arose both in (RSPB) and before Turner J is that the Respondent should be permitted to re-canvass, by way of undue delay, an issue of promptness which has been decided at the leave stage in the Applicant’s favour only (i) if the judge hearing the initial application has expressly so indicated, (ii) if new and relevant material is introduced on this substantive hearing, (iii) if, exceptionally, the issues as they have developed at the full hearing put a different aspect on the question of promptness or (iv) if the first judge has plainly overlooked some relevant matter or otherwise reached a decision per incuriam. This is today no more than practical case management under the Civil Procedure Rules, in particular CPR 3.1(2)(k) which permits the court to exclude an issue from consideration but more generally under CPR 1.4(2)(c) and the overriding objectives set out in CPR 1.1. It also gives effect to the principle of judicial comity at first instance spelt out by Robert Goff LJ in R v Greater Manchester Coroner ex parte TAL [1985] QB 67, 81A-C. The second judge, in addition, must have in mind the need to prevent circumvention of CPR 54.13 which provides:

“Neither the defendant nor any other person served with the Claim Form may apply to set aside an order giving permission to proceed. (Paragraph 34).”

In terms the Court of Appeal in Lichfield was dealing with the overlap and similarity between the test of promptness in CPR 54.5 and the test of undue delay in section 31(6)(b) of the Supreme Court Act 1981. In principle, however, it seems to me that the same approach should apply if and to the extent that any or all of the questions whether the granting of the relief sought would be likely (a) to cause substantial hardship to or (b) substantially prejudice the rights of any person or (c) would be detrimental to good administration can be shown to have been decided by the judge as part of his reasons for exercising the discretion to grant permission where the Claim Form, although not filed more than three months after the grounds on which the claim arose, was nonetheless not filed promptly.

In this case in the absence of a transcript it is impossible to be certain what findings Collins J made on these matters. In my judgment, however, given the prominence of the council’s reliance in Ms Morris’s first witness statement and the Summary Grounds of Defence on the alleged prejudice and detriment to the council in the event of permission being granted, it is to be inferred that Collins J in granting the Claimant permission to apply for judicial review found that such prejudice as there was on the material before him was not so great as to justify the detriment to the Claimant and/or other users of Crawford Avenue which might follow if she were deprived of the opportunity of seeking the relief sought.

Although based on Mr Greatorex’s account of what Collins J said, at least the first of the four conditions specified by the Court of Appeal in Lichfield would apply in this case, in my judgment, as previously mentioned, it is to be inferred that it is likely that what Collins J had in mind was that the council should be free to rely on any additional matters not before him which, either on their own or together with those matters which were before him demonstrated a likelihood of substantial hardship to or prejudice of the rights of any person or detriment to good administration which would not exist by reason only of the matters which were before him.

In my judgment Ms Morris’s second witness statement dated 28 September 2011 (that is to say after Collins J’s decision) did not identify additional matters which are likely materially to increase any hardship or prejudice to the Council, service users of Crawford Avenue and/or Clement Close flowing as a result of the timing of the filing of the claim for Judicial Review on 23 August 2011 (as distinct from any hardship or prejudice which may flow from the fact that Collins J granted interim relief and/or from the consequences of substantive relief being granted by me in the event that I conclude that that is relief to which the Claimant would otherwise be entitled).

As to the need to negotiate a new lease from Barnardos if the effect of the Claimant succeeding in her claim for Judicial Review is that any reconsideration by the Council which it is ordered to do would require the Council to keep Crawford Avenue open after 7 December 2011, that was identified by Ms Morris as a prejudice to the Council in her first witness statement and, it is to be inferred, was taken into account by Collins J on 6 September 2011 when he granted both interim relief and permission. In her second witness statement Ms Morris put a figure on the additional rent which Barnardos would seek, namely £10,000 a year. However it is in my view highly material in the context of this delay argument that the event which has given rise to the additional rent to which the Council would be exposed if Crawford Avenue has to remain open after 7 December 2011 was the decision taken by Council officials to serve notice of termination on Barnardos on 2 June 2011. Not only was this decision taken in the mistaken view that the Council could unilaterally withdraw its notice of termination without the consent of Barnardos, but it was taken six days before the OSC meeting which, to the knowledge of the Council’s officers, had been convened specifically to consider whether to recommend that the Executive reconsider the decision to close Crawford Avenue. If the OSC had decided to make that recommendation and the Executive had reversed its original decision taken on 23 May 2011, the Council would have been exposed to precisely the same rent increase. Further, and critically in my view, it cannot realistically be suggested that the promptness requirement in CPR 54.5 or the implicit absence of undue delay requirement in section 31(6) of the 1981 Act required the Claimant to file a claim for Judicial Review against the 23 May 2011 decision before 2 June 2011. Thus even if the Claimant’s filing of its claim for Judicial Review on 23 August 2011 was not prompt, the prejudice to the Council arising from the rent increase triggered by its unilateral notice to terminate the lease on 2 June 2011 cannot in my view be laid at the door of the Claimant or be said to have been caused by her lack of promptness. Although section 31(6) entitles the court to refuse relief if it considers that the granting of the relief sought would be likely to cause substantial hardship or prejudice or be detrimental to good administration the mischief in my view of that provision is the avoidance of prejudice, hardship or detriment caused by or attributable to the undue delay in making the application for judicial review.

In relation to the issue of staff redundancies, again Ms Morris’s second witness statement adds little of substance to her first. She states that there will be an immense detriment to staff morale in having to have a duplicate consultation process, one necessitated by the decision taken in April 2010 to transfer Crawford Avenue and Clement Close to the village school, the second ensuing from what she described as the late issuing of the judicial review claim. It is not clear whether the immensity of the detriment to which she refers was intended to refer to the former, the latter or both. The Claimant in her third witness statement dated 3 October 2011 in response to Ms Morris’s second witness statement stated that she had spoken to staff at Crawford Avenue and that their morale has been low since they found out about the closure of Crawford Avenue rather than the judicial review. She stated that the staff was extremely happy when the news filtered back that there would be a delay in the closure of Crawford Avenue. She said that from what the parents had observed staff morale had improved in the hope that there would be a better outcome for the service users and that jobs could be protected. If staff morale had been low it was due to the fact that there had been a poor consultation coupled with the fact they were not happy about the closure.

In principle it was in my view foreseeable and should have been foreseen by the Claimant that once the council took the decision on 23 May 2011 to close Crawford Avenue prematurely and the OSC decided not to refer that decision back to the Executive on 8 June 2011 it was likely that there would need to be staff redundancies which will need to be implemented or at any rate initiated relatively speedily. At the hearing I raised the question what the council would have done if a letter before action had been received before the redundancy notices were issued. In written additional submissions Mr Greatorex submitted that the answer to that question was not relevant and required a very difficult degree of speculation. I do not accept the first submission since it goes in my view to the question whether any prejudice to the council arising out of the extra cost consequential upon reversing the redundancy notices or finding alternative staff would be likely to be caused by the Claimant’s delay in issuing proceedings or would have been suffered in any event. I do however accept that it may well be that the council might not have issued redundancy notices when it did if it had already received a letter before action. The first three notices were served on 22, 23 and 25 July 2011. Although in my view it was reasonable for the Claimant to wait to see what happened at the OSC meeting on 8 June 2011, once the outcome of that decision was known it was incumbent on her to proceed promptly. The relief which she seeks is in effect to keep Crawford Avenue open until the new unit at the village school is ready to admit children in December 2012, a consequence she asserts would follow from a reconsideration on the part of the Council acting in accordance with its legal obligations. Given that what is in issue is a period of at most some 15 months it should in my view have been obvious to the Claimant that the council would have to take a number of consequential steps which would have both financial and logistical implications. Against that background, while I am not unsympathetic to the personal circumstances of the Claimant or the practical constraints under which the Harrow Law Centre was operating, it does not seem to me that service of a letter before action on 1 August 2011 can be said to have been served promptly. Nor can it be said that the filing of a judicial review claim form on 22 or 23 August 2011 was prompt.

Accordingly it follows that in my view the consequences flowing from the service of the redundancy notices can fairly be attributed to undue delay on the part of the Claimant. However, as already stated, in my view it is to be inferred that in so far as they were identified by Ms Morris in her first witness statement those consequences were taken into account by Collins J and did not lead him to conclude that either permission or interim relief should be refused. In the light of the Claimant’s third witness statement I do not consider that Ms Morris’ point about the staff morale raised in her second witness statement takes the matter decisively further. Were it the case that the effect of requiring the Executive to reconsider its decision to close Crawford Avenue having taken the additional fact finding steps which the Claimant invites me to hold that it is required to take would be to add significantly to the council’s costs and/or to create significant logistical staffing difficulties I do consider that such adverse consequences would need to be considered very carefully in deciding whether to grant or refuse the relief sought by the Claimant under section 31 (6) of the 1981 Act (if I were of the view that the council acted unlawfully). However Ms Morris’ second witness statement gave no further detail than her first on these matters. Nor was the outcome of negotiations with the staff made known to the court at the on 6 October 2011. Thus in the event this is not a factor in respect of which the evidential position was materially different when the matter came before me than it had been when the matter came before Collins J. In those circumstances applying the Lichfield approach, I do not consider that this is a factor which should militate against the grant of the relief which the Claimant seeks if I am of the view that she is otherwise entitled to it.

As to the concern that the council has lost the benefit of the £27,000 for the refurbishment of Clement Close, that does not seem to me a material consideration in the present context. If the claim for judicial review had been filed earlier, there is no reason to believe that the council would have obtained that quotation in the first place. As it is, the quotation having been obtained by the council, its loss resulted in my view from the making by Collins J of the interlocutory injunction and cannot fairly be attributed to the delay by the Claimant in filing the claims. In any event there was no evidence on this point in Ms Morris third witness statement.

In her second witness statement Ms Morris stated that the longer the delay in the implementation of the council’s decision of 23 May 2011, the less able the council would be to make the savings set out in the 23 May 2011 report. If that savings target is not made the amounts would need to be found and cut from another part of the council’s Children and Families’ budget for 2011/2012 at a late stage in the financial year and 2012/13. Again, while this would plainly be a potential detriment to the council in the event of an order requiring the council to reconsider the decision to close Crawford Avenue, particularly if it led to a reversal of that decision, that detriment, as it seems to me, if it occurred would be the result not of any delay on the part of the Claimant in bringing the claim but rather of the decision to close Crawford Avenue having been held to be unlawful and thus in effect as a result of the position in which the council found itself in May 2011 of having to make unwelcome cuts in its budget. In any event this is not a matter which was carried any further in Ms Morris’ third witness statement.

In her second witness statement Ms Morris relied on the impact on other service users of the claim for judicial review. She said that the effect on the existing 76 service users who currently use Crawford Avenue and Clement Close was a serious concern. Placement plans had been reviewed in July and August 2011 and the parents using the facilities were given four post-closure options: respite care services to be provided at Clement Close, provision of care at home, use of direct payments and other private or voluntary arrangements. In respect of the first option the manager there was currently in contact with parents to organise the service with them. The parents who preferred the other options had been referred back to the Children with Disabilities Social Work Team so that the children’s care plans could be considered and amended accordingly. All that work would be put on hold or undone if interim relief or the final relief sought were granted. If the claim for judicial review failed, the three week closure of Clement Close planned for September would have to be rebooked to allow refurbishment and staff training to take place. The bookings taken for that period would then have to be cancelled and that would mean the service users having to experience major disruption in reorganising their respite care arrangements with the council. Of all the matters relied upon by the council this struck me as potentially the most serious. Although the basis of the claim is the apprehended loss or diminution in the quality of respite care services to the Claimant, her son and the other carers who made witness statements in support of the Claim and their children, they constitute only a small proportion of the users of Crawford Avenue and Clement Close. Whatever the merits of the claim it is not hard to imagine that the premature closure of Crawford Avenue may have caused concerns or apprehension on the part of service users. There is an obvious importance in the careful and sensitive management of the process of making the necessary alternative arrangements consequent upon the decision to close Crawford Avenue. Any avoidable disruption to that process and in particular to individual arrangements made for particular service users would be a matter of legitimate concern. Again however it is to be inferred that this was a matter taken into account by Collins J and it is not a matter which was taken further in Ms Morris’ third witness statement.

Standing back and considering this issue in the round and applying the Lichfield approach I am not satisfied that there are any matters which have come to light since the evidence considered by Collins J which demonstrate a likelihood of serious hardship or prejudice to the council, the service users or the staff such as to make it appropriate to deny the Claimant such relief as I would otherwise consider her entitled to. Moreover and for the avoidance of doubt if I am wrong to apply what I have described as the Lichfield approach to this issue and ought myself to consider afresh all the matters taken into account by Collins J as well as the new matters relied on by the council I would reach the same conclusion. If the claim is well founded and the consequence of refusing relief would be to expose the Claimant and her son and/or other service users at Crawford Avenue to the consequences of being deprived of short break respite care to which they are entitled I would consider that detriment to outweigh the matters relied on by the council as constituting likely prejudice or hardship. Further while I am mindful of the importance of protecting good administration from the disruptive and potentially expensive consequences of claims filed with undue delay, I do not consider that in the circumstances of this case that factor would justify withholding from the Claimant relief to which I considered she would otherwise be entitled.

Of course of the three grounds originally relied on in the claim for judicial review only the challenge based on an alleged breach of section 149 of the Equality Act 2010 is still advanced. The principal ground on which the Claimant seeks to rely is the additional ground, notice of which was served on 13 September 2011. That ground is put in two alternative ways: irrationality and a breach of section 149 of the Equality Act, albeit the latter breach is said to arise differently from the breach originally pleaded. The latter breach is said to be equivalent to the common law irrationality challenge although hung on a different legal peg.

It is common ground that the Claimant needs permission to rely on these two new grounds for challenging the initial decision to close Crawford Avenue. In his skeleton argument Mr Greatorex submitted that the new proposed grounds of challenge have not been brought promptly or within three months. In a supplementary skeleton argument in response dated 4 October 2011 Mr Bowen submitted that the question of whether additional grounds may be relied upon has nothing to do with CPR 54.5 and section 31 (6) of the Supreme Court Act 1981. The requirement in the former is that the claim form seeking judicial review must be filed promptly and not later than three months after the grounds to make a claim first arose. The requirement in the latter is that the trigger for the existence of a discretion on the part of the court to refuse to grant leave for the making of an application for judicial review or any relief sought on that application is a conclusion by the court that there has been undue delay in making an application for judicial review. He submitted that the question as to whether permission should be granted to the Claimant to rely on the additional proposed grounds is governed by CPR 54.15, which provides that the court’s permission is required if a Claimant seeks to rely on grounds other than those for which he has been given permission to proceed and paragraph 11.1 of Practice Direction 54 A which provides that where the Claimant intends to apply to rely on additional grounds at the hearing of the claim for judicial review he must give notice to the court and to any other person served with the claim form no later than seven clear days before the hearing.

Mr Bowen submitted that the question is whether there is good reason to refuse permission to rely on the proposed new grounds. He accepted that if the delay in raising them had caused unnecessary hardship, prejudice or detriment to the council or any other parties that would be relevant to the court’s discretion under CPR 54.15. However he submitted that any detriment which the council has actually been caused is due to the fact that permission was granted to proceed with the claim. In my judgment that concession was rightly made. It would offend the obvious policy which lies behind CPR 54.5 and section 31 (6) of the 1981 Act if, in a case where the claim form was filed promptly and within three months after the claim first arose, the court were powerless to refuse to grant permission to amend the claim for the purpose of relying on new grounds, on the ground that the application to amend was not made promptly or within three months of the new grounds arising and/or that there had been undue delay in making the application to amend, even if the court considered that if permission to amend were granted and the claim on the new grounds succeeded, the relief sought would be likely to cause substantial hardship to or substantially prejudice the rights of any person or would be detrimental to good administration.

In my view even where, in such circumstances, permission to amend were granted the Lichfield principle would not prevent the court at the hearing of the substantive claim from refusing to grant relief if it considered that to do so would be likely to cause substantial hardship or prejudice or detriment to good administration merely because the claim in its original form had complied with CPR 54.5 or even because a court had made a finding to that effect on a contested oral hearing of a renewed application for permission. That is because there would by definition have been no prior finding by a judge on the question whether the relief sought arising out of the amended grounds of challenge would cause prejudice, hardship or detriment. Nonetheless where the likelihood of substantial prejudice, hardship or detriment is raised by a Defendant at the stage of opposing the granting of permission to amend the grounds for challenging the impugned decision, in my view it would be open to the court to refuse permission to amend on the basis that it would be a waste of time and money to grant permission in circumstances where the Court could already form the view that even if permission to amend were granted the relief sought would not ultimately be granted following a substantive hearing for the reason that the relief sought would be likely to cause substantial hardship prejudice or detriment to good administration.

Mr Bowen further submitted that since the additional grounds were served 23 days before the final hearing the Claimant had complied with Practice Direction 11.1 and the council had had a fair opportunity to consider those grounds and to respond with detailed grounds of defence and evidence. Indeed in his written reply submissions dated 7 October 2011 he pointed out that in oral submission Mr Greatorex at the hearing accepted that service of the proposed new grounds on 13 September 2011 had given the council adequate notice and a reasonable time within which to respond before the oral hearing on 6 October 2011. Finally Mr Bowen submitted that the proposed new ground was anticipated by the existing grounds in the context of the original consultation ground and the original section 149 ground. He said it was also anticipated by the Claimant’s evidence which asserted that Clement Close was unsuitable.

Mr Greatorex at the hearing submitted that, although the service of the proposed new grounds on 13 September 2011 had given the council adequate notice, they were accompanied by a request for further information and followed on 30 September 2011 by 17 further requests for information. He submitted that those requests did not give the council adequate notice and further that the way in which the new irrationality ground was formulated in Mr Bowen’s skeleton argument dated 3 October 2011 elaborated it in greater detail than the document served on 13 September 2011.

Mr Bowen frankly acknowledged that when the case was returned within chambers because counsel originally instructed was unable to conduct the hearing on 6 October 2011 as he would be on honeymoon on that day, new counsel (Mr Bowen) took the view that the emphasis of the case should be on the matters raised in the additional grounds. In my view there is no indication that if the Claimant were permitted to amend the claim so as to rely on the proposed additional grounds that the council, the users of Crawford Avenue and/or Clement Close, the staff or any other persons would be likely thereby to be caused substantial or any hardship or that it would substantially or at all prejudice the rights of any person. Whatever consequences would flow from the granting of relief to the Claimant would not in my judgment be materially exacerbated for any of those persons by the fact that it was based on a vindication of the proposed new grounds as distinct from the sole surviving original grounds.

To my mind the more relevant question is whether the council would be disadvantaged in fairly presenting its case in opposition to the claim for judicial review if permission to amend were granted. To some extent this overlaps with the question whether the relief sought would be detrimental to good administration. The reason why there are strict time requirements in bringing claims for judicial review is that failure to do so can and often does cause significant difficulties to public authorities. One such difficulty is the particular burden involved in responding to a challenge to a decision long after it was taken. Relevant officials may have moved on, relevant documents may have been destroyed or archived and memories may have faded. Other pressing public duties may have intervened.

In this case there is in my view some support for Mr Bowen’s submission that the new irrationality ground was anticipated by the existing grounds. In particular in support of the originally pleaded ground alleging breach of section 149 of the Equality Act 2010 the statement of facts relied on submitted that the only way in which the council could have complied with its obligations under the single equality duty was to have conducted a proper consultation exercise on the closure decision which would have generated the information necessary to allow the impact of the decision to be properly analysed and evaluated. A primary concern identified by the parents of the affected children was alleged to be that the two stage transition necessitated by the closure decision would adversely affect their children’s wellbeing. (Paragraph 49). It was further alleged that the equality impact assessment was fundamentally flawed in that it failed to record the number of children and families who would be adversely affected by the closure decision and failed to consider whether its conclusion that the closure option was the best of an unspecified range of options open to the council as it would affect numerically the fewest number of children was outweighed by the extent of the impact on each child. It is also the case that central to the proposed new irrationality ground is the Claimant’s submission that none of the 23 May 2011 report, the equality impact assessment of the same date, the minutes of the Executive meeting on that date or the minutes of the OSC held on 8 June 2011 contained information suggesting that the council had sufficiently informed itself so as to be in a position to make a properly informed decision. All those documents were already in play in the dispute arising out of the original grounds.

It is nonetheless equally clear that the council was placed under considerable time pressure to comply with the two requests for further information issued on 13 September 2011 and 30 September 2011. However although the council’s evidential response to the allegation that it was insufficiently informed came in piecemeal fashion by way of Ms Morris’ second witness statement dated 30 September 2011, the draft answer to the second request for further information which was produced on the day of the hearing, an account of matters known to the council conveyed to me on instructions orally by Mr Greatorex at the oral hearing and finally in the form of Ms Morris’ third witness statement dated 13 October 2011, in my judgment at the end of that process the council was in a position fairly to place before the court its substantive response both evidentially and by way of submission to the proposed new grounds. Thus even though it seems to me clear that the new proposed grounds are materially different even from the original and surviving allegation that section 149 was breached by reason of the council having failed to have due regard to the relevant objectives, nonetheless the undoubtedly late application to rely on these new grounds by way of amendment has not disadvantaged or prejudiced the council in the sense of depriving it of a fair opportunity to respond to the substantive complaint made against it. In those circumstances having regard to the serious nature of the adverse consequences alleged by the Claimant to be likely to flow in the event that Crawford Avenue is closed, in my judgment none of the matters relied on by the council would justify me in refusing permission to the Claimant to amend the claim so as to rely on the two additional grounds and I give leave accordingly.

The Claimant plainly also needs permission if it is to be allowed in addition to seek judicial review of the decision to implement the prior decision to close Crawford Avenue prematurely. In this context the Claimant is not seeking to amend the grounds on which it seeks to challenge the decision which forms the subject matter of the claim for judicial review issued on 23 August 2011. Rather it seeks to challenge a subsequent very much later decision. It is convenient to deal with the question of delay and whether permission should be granted to challenge this second decision separately after I have considered the merits of the principal challenge to the first.

On behalf of the Claimant Mr Bowen advanced his submissions in support of the irrationality challenge in three documents: the additional grounds document served on 13 September 2011, in which it was recognised that the council might seek to show that it did in fact obtain all relevant evidence before reaching its decision and which enclosed the first Part 18 request for further information; his skeleton argument dated 3 October 2011, by which time that request had been answered in Ms Morris’ second witness statement dated 30 September 2011; and his written reply submissions dated 7 October 2011, written after Mr Greatorex mentioned certain factual matters on instructions at the oral hearing and the Claimant and the court had seen the council’s draft response to the second Part 18 request which had been served on 30 September 2011, but before the comprehensive statement of the council’s evidence contained in Ms Morris’ third witness statement dated 13 October 2011.

I have already referred to the submissions made in the additional grounds document served on 13 September 2011. In summary it was submitted that the decision to close Crawford Avenue from September 2011 rather than from December 2012 was based on two assumptions which were not supported by evidence: first the closure would not lead to a reduction in the number of hours of short breaks care for each of the 67 current users of the service would receive and second , the assumption on which the first was said to have been based, that the alternative means of provision would be available in the form of a combination of direct payments, foster carers and out of borough placements in alternative residential settings to meet the assessed need of all service users and their families. It was submitted that the council was obliged but failed to satisfy itself that alternative placements were both available and suitable for the service users before reaching its decision. Reliance was placed on the acknowledgment in the 23 May 2011 report that closure of Crawford Avenue would lead to an overall decrease in the hours available for in house short break care of 25 – 30 % at Clement Close as compared to the number of hours currently available at both Crawford Avenue and Clement Close. It was submitted that neither in that report, nor the Equality Impact Assessment, nor the minutes of the meetings of the Executive on 23 May 2011 or the OSC on 8 June 2011 was there any evidence that the council had satisfied itself on the basis of evidence that the acknowledged reduction in the number of hours available at Clement Close could be adequately provided by suitable alternative means.

This failure was said to be a breach of the common law duty to take reasonable steps to acquaint itself with the relevant information to enable it to take the decision to close Crawford Avenue established by Lord Diplock in Tameside at 1065 and also a breach of the duty imposed by section 149 of the Equality Act identified by Aikens LJ in R(Brown) v DWP [2009] PTSR 1506 at paragraph 85 “to have due regard to the need to take steps to gather relevant information in order that it can properly take steps to take into account disabled person’s disabilities in the context of the particular function under consideration” and to consider what information it had and what information it required in order to be able to carry out the duty (para 177).

In the skeleton argument Mr Bowen further developed his submissions. He acknowledged that the following evidence might be said to support the assumption that alternative provision would meet children’s needs: (i) Since average occupancy at Clement Close was 70% and at Crawford Avenue 80%, which had been closed for two nights a week since November 2010 to reduce overhead, it was hoped that with a higher occupancy rate at Clement Close more children could be accommodated there. (ii) There was evidence of a decline in the use of Clement Close as more parents of physically disabled children had taken up the option of home-care through direct payments; (iii) The 23 May 2011 Report noted that there were currently 105 families receiving direct payments in Brent, an increase of 80% over the last three years; and (iv) Brent was one of a declining number of local authorities that still managed their own residential provision. In other authorities when overnight provision was required it was provided either through commissioning placements in residential units, foster homes or by direct payments to families where they could purchase their own overnight care.

On the other hand it was submitted that the following evidence demonstrated that the assumption was unlikely to be correct: (i) there had been no decline in the demand for places at Crawford Avenue for children with significant challenging behaviour notwithstanding the availability of direct payments. At the meeting of the Executive on 23 May 2011 it had been acknowledged that the move to alternative forms of provision had not been straightforward. Accordingly it was submitted that the overwhelming likelihood was that all 67 users of Crawford Avenue would continue to want to receive residential based short breaks care despite the availability of home-based domiciliary care through direct payment.

(ii) The 23 May 2011 report had accepted that the only safe way of managing the provision of services to both children with physical disabilities and those with behavioural difficulties would be to offer separate sessions for those two groups on alternate weeks.

(iii) There would no longer be any facility to accept emergency admissions at Clement Close or anywhere within the borough whether on a short or longer term basis because it was acknowledged in the 23 May 2011 report that a child with physical disability could not be accommodated safely if the emergency happened in a challenging behaviour week. The only option would be an emergency placement with a foster carer or in an out of borough residential resource at additional cost to the local authority. No figures were given in the report or at any stage of the decision making process as to the number of emergency placements that would be likely to be affected. However the council’s response to the first Part 18 request had revealed that there were nearly 100 emergency placements between June 2010 and September 2011 or pro rata 75 a year. This generated a concern on the part of the Claimant as to the impact that would have on those children who would now need to be accommodated in emergencies in unfamiliar settings.

(iv) The 23 May 2011 report recognised that in order to calculate the number of children requiring residential short breaks care it would be necessary to complete individual assessments of need. However those had not been carried out. The need for individual assessments was particularly important for children receiving only day or after school care like the Claimant. Because priority for residential short breaks care was to be given to those assessed as needing overnight care, children receiving day or after school care would suffer the brunt of the closure as anticipated in the report. For those children the assumption was that domiciliary care at home or from private or voluntary groups would meet the child’s needs. However it was submitted that that assumption had been untested.

(v) It was further submitted that the assumption that Clement Close would be suitable for children currently cared for at Crawford Avenue who continued to require residential short breaks care had not been tested on any expert evidence demonstrating that an assessment had been made as to the suitability of Clement Close for that particular group of individuals save for a vague reference to a risk assessment mentioned by Rik Boxer at the OSC meeting on 8 June 2011. The available evidence it was submitted suggested that Clement Close would be unsuitable for many if not all of the behaviourally challenged children at Crawford Avenue even with the planned refurbishment and additional staff, given its small size and the lack of the large sensory room and garden compared to Crawford Avenue. That was particularly so if Clement Close was expected to operate at a higher capacity than it had until then. Reliance was placed on the opinion of Noreen Scott, a care worker at Crawford Avenue who gave evidence at the OSC meeting on 8 June 2011 that Clement Close had neither the capacity nor the facilities to accommodate children form Crawford Avenue. That view was said to have been shared by the Chair of the OSC, Councillor Ashraf, who had said that the move to Clement Close would not be suitable for them. Reliance was placed on the witness statements of the parents who objected to a move to Clement Close on the ground that it is too small for their children who, given their behavioural disorder require much more space to be cared for safely. Reliance was also placed on the statement of RB that the social worker for ZB had told her that he did not think that Clement Close was suitable. Until individual assessments of need had been completed it was submitted that it was not possible for the council to know how many children from Crawford Avenue could be accommodated at Clement Close.

In addition reliance was placed on the fact that no information had been given in the 23 May 2011 report as to who were the out of borough providers of residential short breaks care, where they were or whether they were likely to have capacity to care for those children who could no longer receive short breaks care at Crawford Avenue and for whom Clement Close was either unsuitable or unavailable or for emergency placement. Ms Arnold’s account of the discussion at the Leader’s Briefing on 9 May 2011 threw no further light on the question as to what in practical terms was to happen to those children whom Clement Close would be unsuitable or unavailable, in particular those receiving day or after school care only and those whose conditions were such that emergency placement were regularly required.

It was submitted that the council’s assumption that a combination of Clement Close, once refurbished, direct payments, foster carers and out of borough placements in alternative residential settings would be available and suitable to meet the assessed needs of all existing service users was not supported by sufficient evidence for the council reasonably to reach that conclusion. The following points were made.

It was submitted that the council’s estimate that there would be a reduction of 25 to 30% in capacity for residential short breaks care after Crawford Avenue had been closed and Clement Close refurbished, was almost certain to be an underestimate. It was based on an assumption that Clement Close, with appropriate refurbishment and increased staffing levels, could meet the needs of the behaviourally challenged children at Crawford Avenue which was itself not based on any assessments of the specific needs of the Crawford Avenue service users nor any expert assessment as to the suitability of Clement Close for that group other than what was described as a vague reference by Rik Boxer at the OSC meeting that Clement Close had been “risk assessed”. It was submitted that the evidence referred to above in the form of witness statements from parents and opinions said to have been expressed by Ms Scott and Mr Prophett suggested that Clement Close was not suitable.

Alternatively even if Clement Close were suitable for Crawford Avenue service users it was submitted that the council could have no reasonable expectation that Clement Close could accommodate them. The assumption attributed to the council that sufficient existing service users would choose not to attend Clement Close but instead accept direct payments to access either domiciliary care or other private providers was said to be flawed for three reasons. First there had been no decline in the demand for places at Crawford Avenue. It was said that this was because it is no break at all for the family of a child with a severe behavioural disorder to have a care worker come to their home to look after the child, for which proposition reliance was placed on the statements of RP, RB and FL.

The Equality Impact Assessment had explicitly stated that the number of children who would be affected by the closure could not be calculated without individual consultation and that the individual impact could not be gauged without individual assessments of need. No individual consultations or assessment of needs had been conducted before the decision was taken. The council could not have any confidence that either Clement Close could accommodate all those children who continued to require residential short breaks care or if not that the needs of those children could be met by some other means of short breaks provision whether at home, with foster carers or with out of borough residential providers.

Next it was submitted that the decision proceeded on the premise that emergency residential short breaks care would be provided by out of borough alternative providers. But no information was available at the time of the decision as to the level of demand for emergency placements and who those alternative providers might be, where they were based, whether they were suitable for the particular client group and whether they might have availability. The flaws were identified by parents and opposition councillors at the OSC meeting on 8 June 2011 but had been ignored. It was now clear following the council’s response to the first Part 18 request that there was a significant demand for emergency short breaks care but alternative providers had only been identified in the most general of terms in Ms Morris’ second statement. While wholly coincidental, the council’s response was said to coincide with the coming into force of its duty under Regulation 5 of the Short Breaks Regulations which requires authorities to prepare a short breaks services statement by 1 October 2011 setting out details of the range of services provided in accordance with Regulation 4, any criteria by which eligibility for those services will be assessed and how the range of services is designed to meet the needs of carers in their area. It was submitted that that gives an indication of the minimum information required as a matter of rationality for a decision to close a short breaks unit can be taken.

The case was said to materially indistinguishable from that of R (B) v Worcestershire CC [2010] 13 CCLR 13 to which I shall refer below. In determining whether the decision was irrational it was submitted that the following points are relevant. First the decision was said to be one that is likely to have a significant impact on the wellbeing and happiness of a number of very disabled children and on the family lives of their parents and carers. It therefore falls within the ambit of Article 8. The council’s duty under section 11 of the Children Act 2004 was also said to be engaged which requires the authority in discharging its public functions to have regard to the need to safeguard and promote the welfare of children. Given the disabilities of the individual children equality issues were also relevant. A particularly anxious scrutiny of the decision was therefore required. Second the decision was said by its nature not to be one for which the council should be afforded any particular discretionary area of judgment. It did not involve any particular expertise which the Court lacks. It was not part of any long term strategy but rather a short term measure conceived of to meet an immediate budgetary crisis. Although the decision involved judgment the criticism made of it by the Claimant related to the information on which that judgment was based: namely the lack of any detailed analysis and evidence to support the conclusion that alternative provision would make up for the closure of Crawford Avenue – see Worcestershire paragraph 83.

In the Claimant’s written reply submissions dated 7 October 2011 Mr Bowen returned to my decision in Worcestershire. In oral argument Mr Greatorex had submitted that it should be confined to its own facts and in the alternative, should it be necessary for him so to contend, that it was wrongly decided. Mr Bowen challenged both submissions, the latter of which had not been raised either in Mr Greatorex’s detailed grounds of defence or his skeleton argument. He said it is based on the well established principle in Tameside that a decision must be taken on the basis of sufficient and adequate information such as to enable the decision maker to make a rational decision. It is also he submitted based upon a line of authorities that recognises that there will be some special circumstances when a decision such as the one in issue in these proceedings – closure of a facility for vulnerable adults or children – should not be taken without a full reassessment of the affected individuals’ needs. He relied on a passage in the judgment of Kenneth Parker J (then sitting as a Deputy High Court Judge) in R(Bishop) v Bromley [2006] EWHC 2148 (Admin) at para 37 as identifying the link between that line of authorities and the irrationality ground:

This was a case said Mr Bowen where the council explicitly recognised that users’ needs must continue adequately to be met. It followed that the irrationality claim must succeed if it can be shown that on the information available to it the council could not have had a reasonable expectation that the factual premise on which the decision was made, that suitable arrangements could be made to continue to meet the assessed needs of all the children – would turn out to be correct. He further submitted that the council’s obligation to have a reasonable expectation that the factual premise would be correct arose also out of its obligation to be satisfied that it could continue to discharge three discrete duties: (1) its duty under section 17 of the Children Act 1989 to continue to provide short breaks care to meet the assessed needs of the service users at both Crawford Avenue and Clement Close; (2) its duty under Regulation 4 of the Breaks for Carers of Disabled Children Regulations 2011 (Short Breaks Regulations) “to provide, so far as is reasonably practicable, a range of services which is sufficient to assist carers continue to provide care or to do so more effectively”; and (3) its duty under section 20(1)(c) of the Children Act 1989 to continue to provide emergency short breaks care for families in crisis. Mr Bowen submitted that the council could not have had a reasonable expectation that all the children’s needs including the need for emergency short breaks would continue to be met without informing itself as to what alternative provision would be available and suitable to meet the assessed needs of the 67 users of Crawford Avenue and the 17 users of Clement Close.

He submitted that required consideration of the following questions: (1) whether Clement Close had sufficient capacity for all the children bearing in mind that there were 67 users of Crawford Avenue (44 overnighters) and 17 at Clement Close (1 overnighter). The Claimant did not understand the discrepancy between the original assessment in the Equality Impact Assessment that 58 children could be offered an overnight service and the assessment in the draft reply to the second Part 8 request for further information served on 6 October 2011 that 76 service users could be accommodated at Clement Close (paragraph 2). (2) whether Clement Close was suitable for all the service users who would now be there in particular given its size and configuration. That it was submitted would require at the very least some assessment of needs and individual consultation with individual families having a regard to the matters identified in Regulation 3 of the Short Breaks Regulations (3) if Clement Close did not have sufficient capacity or was not suitable for some of the children whether alternative arrangements could be made elsewhere. That would require identification of suitable alternative placements in consultation with service users and their families (4) in particular, for those children only receiving day care at Crawford Avenue and Clement Close – over whom children with a need for overnight care would take priority – whether alternative arrangements were available and suitable especially for those parents who worked or were single parents or with other children, for whom it would/might not be suitable to have short breaks in their own home. This it was said would require some kind of assessment of needs and individual consultation to ascertain the wishes and feelings of parents and children having regard to the matters in Regulation 3 and to identify suitable alternative placements. (5) What arrangements were to be made to accommodate children on short breaks in emergencies. At least on 23 May 2011 the council acknowledged that emergencies would no longer be accommodated once Crawford Avenue closed, the intention being for provision to be made through the commissioning team for emergency placement with a foster carer or out of borough residential resource. However no further information had been given at the time or at the time of the OSC meeting on 8 June 2011.

It was submitted that the council had not made those enquiries. Reliance was placed on Mr Greatorex having responded to my question as to what steps the council had taken to satisfy itself that it could discharge its duty under Regulation 3, namely that the council did not do very much but that it did not need to. It was enough that the assessed number of hours of respite would continue to be given. Mr Greatorex had said on instructions that no specific steps were taken to ascertain the suitability of the alternatives. However very careful consideration was given by the council through its officers who know about this to what the position would be if Crawford Avenue were closed. That included judgments based on the way Clement Close operated as to what the situation would look like after Crawford Avenue closed including the health and safety risk assessment. There had been no specific steps beyond that. What was relevant was the knowledge that the council has of other providers whom they use the whole time. Mr Bowen submitted that the council has been rather coy about its knowledge of alternative providers. The response in Ms Morris’ second statement was said to have been vague, and the draft response to the second Part 8 request suggested, he submitted, that even now it is not possible to identify where the beds will be available either for planned short breaks or emergencies in the event of Clement Close not being available or suitable for a particular child.

Reliance was placed by Mr Bowen on a concession made orally by Mr Greatorex that “if we are on the wrong side of Coughlan we lose.” That was said by Mr Bowen to be a concession that the council would lose if this was a case where as a matter of rationality it was obliged to satisfy itself that the assessed needs of all the existing users of Crawford Avenue would continue to be met after Crawford Avenue was closed. The reference to Coughlan was a reference to decision of the Court of Appeal in R v North and East Devon Health Authority ex parte Coughlan [2001] QB 213 to which I shall refer below. Mr Bowen submitted that the concession was rightly made and that it appears to be the council’s case that there was no duty to make enquiries because no child would have assessed needs that stipulated anything more than that they required short breaks care, the number of hours and whether that would be overnight or not. The location of the short breaks would be immaterial so that it would be lawful to move child form one provision to another without a reassessment.

It was submitted that that position was not correct. It was said to be unsupported by evidence. Further Mr Bowen submitted that an assessment and care plan that did not identify the placement would not be lawful. The assessment process must conform with the approach to care assessment identified by Richards J in R (AB) v Nottingham CC [2001] 4 CCLR 295. A three stage process must be followed: “identification of needs, production of a care plan, and provision of the identified services.” (Paragraph 41). That Mr Bowen submitted would necessarily identify a particular facility such as Crawford Avenue which meets very different needs to a facility such as Clement Close. Moreover he submitted that even if the council’s position was correct it would only establish that it had a reasonable expectation that it would be able to satisfy its duty under section 17 of the Children Act 1989 to continue to provide short breaks care to meet the assessed needs of the service users at Crawford Avenue and Clement Close. It would not show that the council had a reasonable expectation that it would be able to satisfy its duty under Regulation 4 to provide a range of service so far as reasonably practicable which is sufficient to assist carers to continue to provide care or to do so more effectively or its duty under section 20 (1)(c) to continue to provide emergency short breaks care for families in crisis. This case it was submitted plainly falls on to what Mr Bowen described as the Worcestershire side of the line not the Coughlan side.

In the detailed grounds of defence the council submitted that the irrationality challenge is misconceived in fact and law. Reliance was placed on Ms Morris’ second statement to explain why it misunderstood the council’s decision and its consequences. It was submitted that the challenge is legally misconceived because in effect it seeks impermissibly a review of the merits of the decision and/or to embark upon a detailed enquiry into how the council does or should discharge its duties. It was not and never had been the function of the court to do either of those things. It was submitted that the council had been clear throughout that it would continue to make the provision to which service users of Crawford Avenue and Clement Close are entitled. Further it was submitted that the Claimant does not suggest that the effect of the decision under challenge is that the council would inevitably fail to discharge its statutory duties. Should it occur in the future that the council did fail in its duties in that regard no doubt appropriate relief would be ordered to ensure compliance. The 23 May 2011 report acknowledged the possibility that in some instances the council would incur additional costs because of the closure of Crawford Avenue but that it was submitted did not give rise to any ground of public law challenge.

Mr Greatorex’s skeleton argument dated 3 October 2011 concentrated his fire principally on the issue of delay. As to the merits of the irrationality challenge to the first decision to close Crawford Avenue it was submitted that the Claimant’s argument had already changed. When first raised on 13 September 2011 the argument had been that the decision was based on two assumptions that were not supported by evidence. The Claimant’s skeleton argument it was submitted now accepted that there was evidence, just not sufficient evidence. Thus it was submitted that the court was being asked to get very close to the evidence and intervene on a very narrow basis. In any event it was submitted that the rationality challenge is not even arguable. It cannot be said that no reasonable local authority would take the decision taken by the council. In particular the fact that many local authorities do not have any residential short breaks provision of their own was said to confirm that there is nothing unusual let alone irrational in the council’s decision.

In his additional written submissions dated 7 October 2011 Mr Greatorex submitted that it is an oversimplification and wrong to describe the decision under challenge as simply being to close Crawford Avenue. Further he said that the council wished to emphasise that the decision was taken very carefully by professional officers with extensive and day to day experience in this area.

The work done included working out the total amount of provision which Clement Close would provide after the refurbishment, as well as the existing usage of Crawford Avenue and Clement Close, a considered estimate of how many users would want to continue with overnight respite provision and how many parents they thought would need and choose direct payments, consideration of the rising trend of numbers in the past two years of how many parents wanted and chose direct payments. It was anticipated that there would be some parents who chose direct payments based on looking at take up direct payments over the past two years. Officers took into account the number of children approaching 18 years of age and reaching the point of needing support from adult services. They also brought into the equation some estimation as to how many new cases there would be between April/May 2011 and end of 2012 (when the Village School would be open) requiring respite - as they would have the numbers coming through the system of children who would come to the age of needing respite care. As the responses to the further information show, to a large extent these predictions have proved accurate. Thus even if the Court finds the Defendant was under some sort of duty to satisfy itself that needs would be met, it was submitted that that duty was discharged.

However Mr Greatorex submitted that, to apply the decision in Worcestershirehere would represent another exception to the principle set down in Coughlan, and would generate considerable uncertainty about the scope of this exception. Even assuming it only applies to decisions to alter social services provision (which is a wide enough field as it is, although it is not obvious why it does not go wider than that), how can a public authority know, before making such a decision, when the exception arises (and so it is under the burdensome duty to satisfy itself that all needs will be met) or when the Coughlan principle applies (and it is not)?

Further, it would be difficult, if not impossible, for a public authority to anticipate all possible arguments that could be made by any person as to why needs would not be met or judge whether any argument that needs will not be met would be upheld by the Administrative Court. This case was said to be a good example as the original claim did not (as the Summary and Detailed Grounds of Defence pointed out) suggest that needs would not be met as a result of the decision and it was only two working days before the hearing that the Claimant finally articulated the argument now advanced.

Even on the Claimant’s case (which was not accepted) that the Defendant made a bare assumption that needs would be met, there was simply no evidence in support of the suggestion that they would not be. Neither was there any evidence to suggest that there is any assessment of need for a particular type of respite care or for any particular frequency. Nor was there any right in law to either of these. The argument that Clement Close is unsuitable for one or more children was said to be (1) simply unfounded, (2) not a matter for this Court to determine, and (3) not a matter the Court could determine in any event on the evidence which had been placed before it. At the most, the argument was that it is not as good as Crawford Avenue and/or Crawford Avenue is the preferred choice, but such matters were simply irrelevant in a claim for judicial review.

It was submitted that the Claimant had not specified exactly what the council could and should have done that would have satisfied its complaint. In fact, if the Claimant’s case was right, the effect would be (as the council had been saying all along) to say that the council could not lawfully have closed Crawford Avenue because it could never have been reasonably satisfied that all needs would be met in the future because there is no other way in which all needs could lawfully be met. That was obviously not right.

As appears above Mr Greatorex relied on the decision of the Court of Appeal in Coughlan to support the proposition that the council was under no obligation to take any further steps to inform itself beyond those which were taken before deciding to close Crawford Avenue prematurely. In particular it was under no obligation to assess or reassess the needs of the Claimant and her son or the other existing users of Crawford Avenue and Clement Close. Mr Bowen relied on my decision in Worcestershire as supporting the submission that the council acted unlawfully in failing, before taking the decision to close Crawford Avenue, to acquire sufficient information to be able to satisfy itself that it would be able to continue adequately to meet the assessed needs of all the users at Crawford Avenue and Clement Close in the event of closure. Mr Greatorex’s response was that the facts of this case are distinguishable from those in Worcestershire and, in the alternative should it be necessary, that my decision in Worcestershire was wrongly decided.

Coughlan was a case in which a decision by a health authority to close Mardon House, a purpose built residential facility for caring for severely disabled patients, was challenged on a number of grounds. The decision of the Court of Appeal is best known in the context of what it said as to what is required to be done where a public body has a legal duty to consult. Of relevance for present purpose is what the Court of Appeal held and said in rejecting Ms Coughlan’s challenge to the decision to close Mardon House on the ground that there had been no assessment of her individual needs and no risk assessment of the effects of moving her from Mardon House.

Ms Coughlan submitted that those assessments were required both by statutory guidance issued in 1995 and 1998 and also by a general obligation to take all relevant factors into account in making the closure decision. She submitted that before taking the decision to close the Health Authority had an obligation to assess or consider the health and social needs of the patients at Mardon House, including emotional and psychological needs, whether their needs were met at Mardon House, whether and to what extent their needs could be met elsewhere and what would be the effect on each patient of a forced move from Mardon House. All that she submitted should be viewed against the background of a promise which she alleged had been made to her that Mardon House would be a home for life, an allegation separately accepted by the Court of Appeal. There had been a Social Services assessment of Ms Coughlan which had concluded that Mardon House was ideally suited to her needs. In the absence of proper multi disciplinary and risk assessments the health authority could not it was submitted make a lawful decision to close Mardon House.

It was further submitted that the health authority and Social Services department were required to identify an alternative placement in which her needs could be as, or more, appropriately met before they were in a position to balance the individual interest of Ms Coughlan against the reasons for closing Mardon House and make a lawful decision to close. No alternative placements were ever identified. A place in for example a geriatric nursing home would not it was submitted be a suitable alternative placement. Against the background of the home for life promise the identification of alternative suitable homes for Ms Coughlan and the other residents should have been of paramount importance, but it was impossible to consider suitable alternative placements without the information which would have been derived from a multi disciplinary assessment. Mardon House had been assessed by Devon County Council as “ideally suited” to Ms Coughlan’s physical and psychological needs. The health authority’s decision to close Mardon House did not include an alternative placement for Ms Coughlan or her fellow-patients but it was satisfied that one would be found.

At first instance Hidden J held that the process by which the decision to close Mardon House was arrived at was flawed by a want of any lawful and rational multi-disciplinary assessment of the needs of Ms Coughlan and the other patients or of the risk in relation to their health and its failure to identify any alternative placement to Mardon House.

The health authority appealed on the ground that Hidden J was wrong to hold that it was required to carry out a multi-disciplinary assessment before consulting on and arriving at its closure decision. It argued that under the 1995 Guidance what was required was such an assessment of the patient’s needs before any decision was made about the discharge of the patient from NHS care or on how their continuing care needs might best be met. The closure decision was not, as Ms Coughlan contended, a collective decision to discharge the individual patients. Under the 1998 Guidance the health authority argued that there were four distinct stages in the transfer process, the first of which was the closure decision and it was only after that that the detailed transfer procedure operated. The health authority submitted that it would be impracticable and unrealistic in the vast majority of cases to carry out the assessments and to identify alternative placements prior to a closure decision, let alone prior to consultation on a proposed closure. Funds for the development of alternative facilities might only become available after the closure decision is taken; only then would the range of alternative available placements become clear; large closure programmes might take years to implement, in which case assessments and alternative facilities considered at the time of consultation or assessments and alternative facilities considered at the time of consultation or closure would change over time; and in practice the necessary cooperation of individual patients for effective assessments and alternative placements might be more difficult to obtain before rather than after a final decision has been taken on closure. The health authority submitted that those issues were of great practical importance for health and social services authorities throughout the country.

The health authority contended that in any event Hidden J was wrong in holding that multi-disciplinary assessment of Ms Coughlan’s needs had not been undertaken in accordance with the 1995 Guidance. Prior even to consultation on the closure there had been three clinical assessments of her as well as a social services assessment. To the extent that the required assessments had not been carried out in accordance with the 1995 Guidance it was submitted that the judge had failed to address the question whether that was the result of Ms Coughlan’s unwillingness to cooperate in the assessment with the health authority and social services in the manner and to the extent contemplated by the Guidance. That had been disputed by Ms Coughlan who contended that she cooperated with the assessments that were made and that she would fully cooperate with any multi-disciplinary assessment had it been offered.

The health authority relied on the fact that it had identified 43 potential alternative new care settings before making the closure decision and had to the extent practicable investigated their suitability. To the extent that it had failed to identify alternative placements it submitted that the judge ought to have held that Ms Coughlan ought not to be permitted to rely on such a failure since she was unwilling to cooperate with the health authority in any collaborative process aimed at identifying an alternative placement for her.

In support of its contention that Hidden J was wrong to hold that it was under an obligation to identify alternative placements for Ms Coughlan prior to the closure decision the health authority relied on the stages of the transfer procedure referred to in the 1998 Guidance. It was submitted that the obligation to consider the options for where care might best be provided only arose at the third stage of the four stage process. The new care setting for each individual patient was only identified at the fourth stage of the transfer process.

The conclusions of the Court of Appeal were as follows:

“102.

In our judgment the Health Authority's handling of the assessments and the finding of suitable alternative placement was not established as a separate ground for challenging the decision to close Mardon House.

103.

The concerns of the Health Authority about the practical implications of the judge's decision on these two points are well understood. In the absence of special circumstances, normally we would expect it to be unrealistic and unreasonable, on grounds of prematurity alone, for the Health Authority in all cases to make assessments of patients and to take decisions on the details of placement ahead of a decision on closure. Neither the statutory provisions nor the Guidance issued expressly require assessments to be made or decisions on alternative placements to be taken before a decision to close can be lawfully made.

104.

If and when a decision is taken to discharge Miss Coughlan and to place her in alternative accommodation, it may be open to her, on the grounds of the alleged shortcomings in the assessment procedures and in the consideration of alternative placements, to challenge the lawfulness of those decisions.

105.

It is, however, unnecessary to say more generally about the timing of those decisions in view of the special circumstances of this case, namely the impact of both the promise of a home for life issue and the unlawfulness of the eligibility criteria on the assessment and placement issues.

106.

If, as we hold, the promise of a home for life at Mardon House rendered the decision to close it at this stage an abuse of power, there is no need to address the question of whether a suitable alternative placement could be found offering conditions similar to those available at Mardon House.

107.

Further, if, as we hold, the eligibility criteria were in themselves unlawful, it follows that those assessments of Miss Coughlan (and the other patients) which have been made on the basis of the criteria cannot fairly be treated as assessments for the purpose of making a decision, whether it be before closure, as she contended it should be, or after closure, as the Authority contended it should be, to discharge Miss Coughlan from Mardon House or to place her elsewhere.”

Before considering the ambit and extent of the judgment of the Court of Appeal in Coughlan it is convenient to refer to my decision in Worcestershire and the decision of Mr Kenneth Parker QC, as he then was, in R ex parte Bishop v London Borough of Bromley [2006] EWHC 2148 Admin.

In Worcestershire the four Claimants were all severely physically and learning disabled adults each requiring 24 hour care and support. They attended the Pershore Day Centre, one of three such centres in the area managed by the Worcestershire County Council for adults with profound and multiple learning disabilities. The Defendant’s director of adult services prepared a report to Cabinet stating that the service at Pershore was in excess of what was required, that significant savings would be achieved by closing Pershore and meeting all needs at other centres and critically that the needs of those attending Pershore would be met at the other centres. The Cabinet agreed to put out to consultation three options: (1) to do nothing, (2) to increase the number of service users at Pershore and close one of the other centres and (3) to close Pershore and one other centre and move all service users to the remaining centre, Cherry Orchard.

During the consultation process the principal concern of the parents of the Pershore service users was whether the service users’ needs would adequately be met under the proposed new arrangement in option three. In particular they were concerned that the budget was based on an asserted cost of meeting the needs of service users with profound and multiple learning disabilities that was lower than what was required. A report was prepared for Cabinet following the consultation recommending the third option which was approved by the Cabinet. The decision was called in and considered by the Defendant’s Overview and Scrutiny Steering Committee which upheld the Cabinet’s decision.

The Claimants sought judicial review of the decision on two grounds: that it was irrational and that there had been inadequate consultation. I rejected the latter ground but upheld the former. As to the former, the Defendant’s counsel submitted that the threshold for a rationality challenge is a high one and that this is an area in which it is to the highest degree important that the court should remind itself that it is not its function on a challenge such as this to substitute its own view for the view of the relevant decision maker. I accepted that she was right to remind me to bear in mind this well know proposition in approaching the decision to be made in that particular case. It was amply supported by authority, for example the decision of Beatson J in R on the application of Centro v Secretary of State for Transport [2007] EWHC 2729 Admin paragraph 36 and other cases which demonstrate that the principle is not confined to the context of economic policy: see for example R v Hillingdon LBC ex parte Pulhofer [1986] AC 484, 518 DE, (homelessness), Lambeth LBC v Ireneschild [2007] EWCA Civ 234, [2007] 10 CCLR 243 at paragraph 34 (community care) and R on the application of Bishop v Bromley LBC [2006] EWHC 2148 (Admin) 2006 CCLR 635 at paragraph 24 (closure of day centre).

Central to my decision that the council’s decision to close Pershore was unlawful was my finding that the decision to close Pershore of itself necessarily involved a decision that the Claimant users would go to the reconstituted Cherry Orchard centre.

85 “This is not a case in which a decision was taken to close Pershore without any recognition that the decision, of itself, of necessity involved, in effect, the decision that the users would go to the reconstituted Cherry Orchard. Therefore this is not, in my view, a case, of which there are many in the authorities, in which it has been held that it is premature in challenging a decision to close an institution, to do so on the basis that there has not yet been an assessment of the needs of the residents or users of that institution. That is because it often happens that there is a multi-staged decision making process and that it is not possible at the first stage of the process or of closure to identify where the people will go, what their needs will be and whether those places will satisfy their needs. In my view this is not such a case. This is rather an exceptional case where the two stages are in effect linked. The decision to close and the decision to move the users to Cherry Orchard, in my view both explicitly and implicitly were linked both by the officials and the council with each other, that is to say the decision to move and the decision to close, and it seems to me that the matter can be tested this way: if it had been said to the Cabinet or the OSC in answer to a question or otherwise: “We do not know whether we will be able to meet the needs of the users at Cherry Orchard, but can we please close Pershore now?” the answer could only have been “No of course not”. Because that is not the basis upon which the closure of Pershore was put. It was an integral part of an overall package which was designed to review and reform the provision as between Pershore, Perryfields [the third centre] and Cherry Orchard as well as the satellites.

86 In my judgment therefore the decision was taken on the basis that closure of Pershore would lead to the three Claimants moving to Cherry Orchard and the fourth user to Evesham, and on that basis the decision was made that the council were satisfied that Cherry Orchard would meet their needs.”

In Worcestershire the council had relied in support of the lawfulness of its decision on the decision of the Court of Appeal in Coughlan and the decision of Lightman J in R on the application of Phillips (by her daughter and litigation friend) and Rowe (by her sister and litigation friend) v Walsall MBC [2001] EWHC Admin 789, [2002] 5 CCLR 383.

The latter was a case in which the applicants were two of three remaining elderly residents at a residential care home provided by the respondent council. Following a consultation process the Social Services Committee resolved to close the home due to low occupancy and problems in upgrading. All residents were transferred elsewhere save for the remaining three who contended that they had been assured that the care home would be a home for life and brought judicial review proceedings to prevent the council transferring them elsewhere. Lightman J held:

“The second ground of challenge is that there was a breach of duty by the Council in failing to make psychological and risk assessments in respect of the effect on the applicants of the transfer to new homes. In my judgment the evidence before me establishes that there is no need for any such assessments. The general principle is that such assessments may be necessary or appropriate when making the placement of a resident elsewhere and deciding what home would be suitable for the resident, but are not necessary or appropriate when making a decision on closure: see Ex parte Coughlan [2000] 2 WLR 622. Special circumstances may exist which do require an assessment before a decision is made on closure. An example is to be found in the case of Ex parte Perry [2000] 3 CCLR 378 where the evidence established that the psychological effect of uprooting a profoundly disabled group of people from their homes where they had lived for 20-30 years and the consequent loss of the continuing care of a consultant were matters of importance. (It is clear to me that R v. LB of Camden Ex parte Bodimeade was decided on the ground that there was in that case a clear promise of a home for life, and not on the ground that there was the need in all cases for an assessment, a ground which would run counter to Coughlan). The situation here is quite different. Mr Nagra in his witness statement makes clear that the needs of both applicants will be met equally well in other residential homes. So far as the Council had a duty to ensure that it possessed the relevant information to make a decision on closure and this included the impact on the applicants, I am satisfied that the Council possessed it, and I am not satisfied that there is any reason (let alone evidence) to suggest that it did not possess it” (paragraph 9).

In relation to Lightman J’s judgment I stated:

“It is apparent that Lightman J there reached the conclusion that on the evidence there was no need for assessments. In that case, he found that the needs of both applicants would be equally well met in other residential homes and so far as the Council had a duty to ensure that it possessed the relevant information to make a decision on closure, including the impact on the applicants, he was satisfied that the Council possessed it. In my view, that is not an authority that assists Miss Richards on the facts of this case. Lightman J was not, in my view, there holding that there is a general principle or rule that it is never necessary or appropriate when making a decision on closure to be satisfied, in so far as it is reasonably possible to be satisfied, that the persons who will be moved will have their needs met at the institution to which they will be going. Everything, in my view, must depend upon the facts of the particular case.”

In relation to Coughlan I held that the instant case was distinguishable on the facts, that the decision in Coughlan had itself recognised that there could be special circumstances in which it might not be unrealistic and unreasonable on the ground of prematurity alone for a health authority to make assessments of patients and to take decisions on the details of placement ahead of a decision on closure, and that, unlike in Coughlan, the task that the council had set itself was a task which included satisfying itself that the consequences of closing Pershore would be that the needs of the Pershore users would continue to be met at Evesham and Cherry Orchard. Having set out paragraphs 98 to 104 of the judgment of the Court of Appeal in Coughlan I held:

“90.

As is apparent from that extract, that was a case in which the Master of the Rolls said that neither the statutory provisions nor the guidance issued expressly required assessments to be made or decisions on alternative placements to be taken before a decision to close could lawfully be made and in the absence of special circumstances normally the Court of Appeal said that they would expect it to be unrealistic and unreasonable on the grounds of prematurity alone for the health authority to make assessments of patients and to take decision on placement ahead of the decision on closure.

91.

Again, in my view that is a very different case from the present. That was a case in which, as pointed out by the Master of the Rolls in paragraph 98, under the guidance there were four distinct stages in the transfer process, the first of which was the closure decision and it was only after that that the detailed transfer procedures operated. The health authority submitted it would be impractical and unrealistic in the vast majority of cases to carry out the assessments and to identify alternative placements prior to a closure decision, let alone prior to consultation on a proposed closure. Funds for the development of alternative facilities might only become available after the closure decision was taken. Only then would the range of alternative available placements become clear. Large closure programmes may take years to implement, in which case assessments and alternatives facilities considered at the time of consultation or closure would change over time and in practice the necessary co-operation of individual patients for effective assessments and alternative placements might be more difficult to obtain before rather than after a final decision had been taken on closure. Counsel had submitted that those issues were of great practical importance for health and social services authorities throughout the country.

92.

In my judgment, again, this is a very different situation. This is a case in which the decision to close was specifically proposed and accepted on the basis that these four users would go to specified alternative centres and the decision to close was inextricably linked with a recognition, explicit and implicit, both by the officials and by the Council that the closure would only be justified if the needs of these users could be met at Evesham and Cherry Orchard where it was anticipated they would go. I should add in this context that there were, of course, a number of factors leading to the officials recommending the closure of Pershore and the transfer of the users to Evesham and Cherry Orchard. These included a bona fide, no doubt, view that their needs could be met but were not confined to those considerations. In my view, the Council was perfectly entitled in considering proposals for change to take into account other factors. Meeting the needs of the users is not the only factor in deciding how those needs should be met. There are no doubt all sorts of different ways in which those needs could be met and the Council has had an obligation, and certainly an entitlement to consider alternatives. However, and of course I entirely accept it is not for this court to substitute its view of the balancing of all those factors for the views of the Council, that does not alter the fact that the task that the Council set itself, as I apprehend it, was a task which included satisfying itself that the consequence of closing Pershore would be that the needs of these users would continue to be met at Evesham and Cherry Orchard. In my view, the basis upon which they sought to satisfy themselves was insufficient.”

I held that the question ultimately that fell to be decided was whether the council’s decision had been taken on the basis of sufficient and adequate information such as to enable the decision maker to make a rational decision. I cited Lord Diplock’s dictum in Tameside at para 1065:

“What he had to consider was whether the way in which they proposed to give effect to that preference would, in the light of the circumstances as they existed on June 11, 1976, involve such interference with the provision of efficient instruction and training in secondary schools in their area that no sensible authority acting with due appreciation of its responsibilities under the Act could have decided to adopt the course which the Tameside council were then proposing.

It was for the Secretary of State to decide that. It is not for any court of law to substitute its own opinion for his; but it is for a court of law to determine whether it has been established that in reaching his decision unfavourable to the council he had directed himself properly in law and had in consequence taken into consideration the matters which upon the true construction of the Act he ought to have considered and excluded from his consideration matters that were irrelevant to what he had to consider: see Associated Provincial Picture Houses Ltd. v. Wednesbury Corporation [1948] 1 KB 223, per Lord Greene M.R., at p. 229. Or, put more compendiously, the question for the court is, did the Secretary of State ask himself the right question and take reasonable steps to acquaint himself with the relevant information to enable him to answer it correctly?”

I concluded:

“95.

Applying that latter test to this case, in my view Miss Markus is right to submit that reasonable steps were not taken to provide the decision maker with the relevant information to enable the decision maker to make a rational decision. That is not to say that I am intending by that finding to make any general criticism of the Council or its officers, who, in my view, during the consultation process displayed a genuine and open desire to keep the Friends of Pershore informed as to their thinking and genuinely intended to approach the process of making a recommendation and then taking the decision in good faith. The respect in which, in my view, the decision is vitiated is the very particular respect to which I have already referred in some detail.

96.

Miss Markus relied on a passage on the decision of Hooper J (as he then was) in R v Birmingham CC ex parte Killigrew at page 117:

“What was needed was a very careful assessment of why, if that was the case, 12 hours care was no longer needed. The importance of the respondent satisfying itself that this was the case is obvious. The applicant and her husband were asking for at least the 12 hours care to continue. Her condition was inevitably and steadily deteriorating. Not continuing the 12 hours care could, it was being said, have serious consequences for the applicant, and was certainly likely to cause deep distress to the applicant (see page 17). The decision to reduce was made at a time when it had been decided that two carers were needed for lifting. It was important that the reduction to six hours care was not driven by the need to have two carers to carry out the task. On the evidence available before me, the reduction could only be justified if there was no continuing need for 12 hours care and not simply because two carers were needed when only one had sufficed earlier.”

97.

That was, of course, a case entirely on its own facts and I do not understand Miss Markus to be relying on the detail. But, in my view, what it illustrates is that there are cases, and in my view this is one, in which the relevant decision does require a level of detailed consideration as to the ability of what is proposed to meet the assessed needs which in this case has not yet been carried out.

98.

I have given this case very anxious consideration, not only because I have reminded myself of the need and importance not to substitute my view for that of the Council, but also because I am conscious both of the fact that there are other factors which the Council legitimately took and had to take into account, and also that these users are not the only people affected by the decision to close Pershore. Indeed, the fact that they are not the only people and that there are other potential users of the Council services at Perryfields, Cherry Orchard and the satellites who may be affected by a decision to quash the decision to close Pershore is, if anything, a factor that underlines the connection between the decision to close Pershore and the question whether the needs of users can be met under the new arrangements. It is, therefore, my view that the court should be very slow before overturning a decision that may have consequences in terms of delay, both for other users and for staff and for the Council. Nonetheless, having given the matter very careful and anxious thought, in my view Miss Markus is right that when this decision was taken the Council was not in a position at the time it took the decision to reach a rational conclusion that the staff availability and facilities under the new arrangement would be sufficient as reasonably to lead to the conclusion that they would meet the needs of the claimants. That being so, in my view, the decision should be quashed.”

R on the application of Bishop v Bromley LBC [2006] EWHC 2148 (Admin) concerned an application for judicial review of a decision to close a day care facility attached to a residential care home. There was a rolled up permission and substantive hearing in front of Mr Kenneth Parker QC (as he then was) sitting as a Deputy High Court Judge. The day care centre in question, Belle Grove, was one of six in Bromley serving the needs of older people with physical frailty and low to moderate levels of mental health needs. The application was brought by a single claimant but supported by a number of the 46 other users of the day care centre who were directly affected by its closure. The proposed closure was justified in a report by the relevant council committee on the ground that it would be possible to provide an alternative day care service nearby at a comparatively low cost thus releasing some savings whilst maintaining the same level of service.

Before the decision was taken there was both a consultation process involving all service users and a review of the ongoing service needs of all the current 47 users of the Belle Grove day centre. The review explored the options for alternative services should the day care centre at Belle Grove be closed and an outline plan was developed for that possibility. The review team considered that the majority of service users should be offered a place at one of the other six day care centres in Bromley, Elmstead, with a small group offered a place at a third day centre at Saxon due to their needs and the services. Preliminary work had been done to identify the capacity required and to ensure that individuals would be able to maintain their pattern of day care, including the weekend service and the later closing time at Belle Grove. Transport arrangements had also been reviewed. It was recognised that in the event of a decision to close Belle Grove a more detailed plan would be developed with each user and their carers to ensure that they would be able to maintain their current pattern of attendance.

The impugned decision was that the Belle Grove day centre should be closed subject to (1) alternative day care services being made available for current users of Belle Grove and (2) closure not proceeding until such time as those arrangements were in place. The first ground on which the impugned decision was challenged was that it was alleged to have been irrational because the council had no strategic plan for the delivery of services at day care centres and without such a plan the closure of one unit made no sense and secondly because it failed to take account of a material consideration, namely the special needs of the service users at Belle Grove Day Centre.

In rejecting the first basis of the irrationality charge Mr Kenneth Parker QC emphasised that the test of irrationality for the purpose of public law is a high one. The council was entitled to take into account among other factors the fact that Belle Grove and Elmstead were both operating well below full capacity and that closure of one unit would generate cost savings and release resources for allocation for the provision of domiciliary services the demand for which was increasing each year. Indeed the council could fairly have been criticised if it had decided to do nothing and simply let slip the opportunity to achieve economies and to release extra funds for the provision of domiciliary services provided that it could continue to meet the needs of service users at Belle Grove.

In rejecting the second basis for the first challenge Mr Kenneth Parker QC accepted that the users of Belle Grove Day Centre were a vulnerable group, elderly and many of them suffering from Alzheimer’s disease of various degrees of severity. At their age and in their condition a significant and abrupt change of environment was something of an ordeal which in turn placed added strain on their carers. However although in an ideal world they would remain at Belle Grove, resources were finite and every decision could deprive others of services they needed. He stated that those responsible for the decision knew what day care facilities were provided at Belle Grove and at Elmstead and by whom and also what were the needs of the service users at Belle Grove. There had been a full review of those needs during the consultation period. That background in his judgment gave sufficient confidence to the decision–maker the needs of the service users at Belle Grove would be likely to be adequately met if they were transferred to an alternative day centre, including, in the present context, Elmstead.

The second ground of challenge was that the council was alleged to have failed in an alleged legal duty to carry out a reassessment of the needs of service users before deciding to close Belle Grove Day Centre. As to that Mr Kenneth Parker QC said it was important to appreciate that there was no intention to remove services from those in need in a way that might contravene section 29 of the National Assistance Act 1948 and/or section 2 of the Chronically Sick Disabled Persons Act 1970. The intention was to maintain an equivalent level of service provision but from a different delivery point. Furthermore the closure decision was provisional and dependant on making arrangements to ensure the needs of the service users were adequately met.

The evidence made clear that individual reviews of each service user’s care plan had been undertaken and that an outline care plan had been developed with service users and carers being formed on an individual basis if the alternative could not be offered. Mr Kenneth Parker QC rejected the submission that in law that was inadequate and that nothing short of a full assessment or reassessment of need would be sufficient.

Referring to Coughlan he said that the Court of Appeal had held that it was only in exceptional cases that an assessment such as that contended for by Ms Coughlan should be required before the decision to close was taken. He cited the case of R v Merton Sutton and Wandsworth Health Authority ex parte Perry and others [2000] 3 CCLR 378 as illustrating what may constitute special circumstances. In that case a long stay hospital for people with profound learning disabilities was to be closed. The decision was premised on an assumption that three quarters of the patients would be moved to social care. However the relevant government guidance made plain that in a case of those with severe profound learning disabilities a multi-professional assessment was indispensible to determine whether the services they needed could only be provided by the NHS or whether other alternatives would be appropriate and cost-effective. No such assessment had taken place and Mr Kenneth Parker QC stated that it was unsurprising that Jackson J (as he then was) had held the failure to be unlawful.

Mr Kenneth Parker QC said that it was difficult to draw up any general principle to describe special circumstances and that each case must be judged on its own merits. It might however be that the same kind of considerations arose as would arise if the challenge were against the irrationality of the decision. “In other words it is alleged that the decision to close the facility is taken in circumstances where the authority recognises that users’ needs must continue adequately to be met, but unless an assessment was made the authority could have no reasonable expectation that the needs would be met by the provision of such alternative facilities as were provisionally proposed. So in ex parte Perry in the absence of an assessment the authority could have had no reasonable expectation that the needs of those suffering severe learning difficulties could be met by social care.” (paragraph 37).

Mr Kenneth Parker QC rejected the submission that the vulnerability of the service users and in particular the disturbing effect that transport would be likely to cause created special circumstances in the sense required by Coughlan. A change in the location of the delivery of day care services is always likely to cause some degree of stress for both the users and carers and in that case he was prepared to accept that the degree of stress would be significant. However that was not in his judgment sufficient to make the case exceptional so as to require assessment or reassessment of needs. Referring to Lightman J’s decision in R (Phillips and Rowe) v Walsall that even though the move from the residential nursing home which was proposed to be closed would be stressful the council did not have to make psychological risk assessments in respect of the effect on the claimants of the transfer to new premises and that it had sufficient information rationally to support the closure decision, Mr Kenneth Parker QC said that in the instant case the council also had sufficient information rationally to support the decision to close the Belle Grove day care centre (paragraph 39).

This is not an area of the law in which is easy to identify from the authorities precise principles of universal application of such a character as in themselves to provide the correct answer in every case or any particular case.

In Coughlan one of the conclusions of Hidden J which was disapproved by the Court of Appeal was that the process by which the decision to close Mardon House was arrived at was flawed by a want of proper assessment of Ms Coughlan. That failure was described by the Court of Appeal in the judgment of Lord Woolf MR as consisting of a failure to conduct any lawful and rational multi-disciplinary assessment of the needs of Ms Coughlan and the other patients or of the risk in relation to their health and the failure to identify any alternative placement to Mardon House.

The conclusion of the Court of Appeal on this point was that the health authority’s handling of the assessments and the finding of suitable alternative placements was not established as a separate ground for challenging the decision to close Mardon House (paragraph 102). Quite what was the extent and ambit of the ratio decidendi or the binding part of the decision of the Court of Appeal on this issue is not altogether clear. First the health authority had relied on the fact that it had identified 43 potential new care settings prior to making the closure decision and had to the extent practicable investigated their suitability. To what extent the Court of Appeal’s conclusion was based on a finding that on the facts of that particular case the health authority had made reasonable enquiries prior to its closure decision is not clear. Second two questions in my view arise out of Lord Woolf MR’s observation that: “In the absence of special circumstances, normally we would expect it to be unrealistic and unreasonable, on grounds of prematurity alone, for the health authority in all case to make assessment of patients and to take decisions on the details of placement ahead of a decision on closure. Neither the statutory provisions nor the Guidance issued expressly require assessments to be made or decisions on alternative placement to be taken before its decision to close can be lawfully made.”

First it is not clear whether those observations were intended to explain and formed part of the ratio of the conclusion that the challenge to the health authority’s handling of the assessments and finding of suitable alternative placements had not been established or whether they were intended rather as obiter dicta by way of general, but non-binding guidance. The first sentence appears to have been treated by both Lightman J in R v Walsall (paragraph 9) and Mr Kenneth Parker QC in Bromley (paragraph 35-38) as laying down a binding principle, albeit one couched in terms which expressly provide for exceptions in the case of special or abnormal circumstances. Second the observations appear to have been based on the particular statutory provisions and guidance under consideration in that case. Neither the statutory provisions nor the 1998 guidance are relied on by either side in this case. Further so far as the 1998 guidance in Coughlan is concerned, its terms were not expressly spelled out in the judgment. The health authority was recorded as having submitted that under the 1998 guidance there were four distinct stages in what was described as “the transfer process”, the first of which was the closure decision, it only being after that that the detailed transfer procedure was operated. It submitted that the obligation to consider the options for where care might best be provided only arose at the third stage and that the new care setting for each individual patient was only identified at the fourth stage. However the judgment is silent as to the details of what the guidance had to say about the four stage process, how each stage was defined and to what decisions taken by which public bodies it applied.

It is striking that that the 1998 guidance made separate provision for the closure decision, which was the first of four distinct stages in the transfer process, and for detailed transfer procedures which were to operate at a subsequent stage. To what extent the decision in Coughlan can be taken as constituting binding authority that even in the absence of an applicable statutory provision or guidance which provides for sequential stages governing a decision to close a facility it would be unrealistic and unreasonable on grounds of prematurity alone in the absence of special circumstances for a relevant authority to make assessments of patients and to take decisions on the details of placements ahead of a decision on closure is in my view open to question.

If these comments of Lord Woolf MR were intended to form part of the ratio of the decision of the Court of Appeal, the terms in which they were couched were significantly qualified. The proposition rejected was that assessments of patients must be made and decision on the details of placement must be taken ahead of a decision on closure by a health authority in all cases. It does not follow that the Court of Appeal held that there may never be a decision by a health authority to close a residential facility, let alone a decision by a council to close any other kind of residential facility, which is rendered unlawful by reason of the failure to make assessments of patients and decisions on the details of placement. Indeed the reverse is implicit in the use of the expressions “in the absence of special circumstances” and in “normally”.

Nor in my judgment does it follow that it was part of the ratio of the Court of Appeal that a decision to close a facility can never be challenged on grounds of Wednesbury irrationality which rely on the fact that the decision was taken before assessments of patients were made and/or decisions on the details of placements were taken. The Court of Appeal does not appear at any rate expressly to have treated the challenge to the decision under this head as being a Wednesbury irrationality challenge, as distinct from turning on the interpretation of the relevant statutory provisions and Guidance. It is also of note that the Court of Appeal identified two factors which rendered the health authority’s decision unlawful which did not turn on any general principle of whether and in what circumstances a closure decision could lawfully be made prior to assessment of patients and identification of alternative placement. They were the finding of the Court of Appeal that the promise of a home for life rendered the decision to close it at that stage an abuse of power and its conclusion that the eligibility criteria were in themselves unlawful. The former conclusion was said to make it unnecessary to address the question of whether a suitable alternative placement could be found offering conditions similar to those available at Mardon House, a statement which might be thought of as otiose if the Court of Appeal had not considered it to be at least arguable that the question of whether such a placement could be found might be relevant to the lawfulness of the decision to close Mardon House.

Having said that I do consider that the Court of Appeal did intend to give general guidance beyond the facts of the particular case before it whether that guidance was part of the ratio or in the form of obiter dicta. While unquestionably qualified by the words “in the absence of special circumstances” and “normally” the Court of Appeal stated that it would normally expect it to be unrealistic and unreasonable on grounds of prematurity alone for the Health Authority in all cases to make assessments of patients and to take decisions on the details of placement ahead of a decision on closure. In doing so they were plainly sympathetic to the concerns which had been expressed by the health authority that it would be impracticable and unrealistic in the vast majority of cases to carry out assessments and to identify alternative placements prior to a closure decision. However some of the arguments relied on by the health authority may suggest that the Court of Appeal was directing its guidance to particular categories of closure decision. See for example the reference to the possibility that large closure programmes might take years to implement so that assessments and alternative facilities considered at the time of consultation of closure would change over time and the reference to the possibility that funds for the development of alternative facilities might only become available after the closure decision is taken. Those comments would not on their face necessarily seem apt to apply to a proposal to close a facility within a short period of time in circumstances where the needs of the current users were so extreme and pressing as to make it inevitable that the health authority would be in breach of a statutory duty to meet those needs if suitable alternative facilities were not able to be made available immediately upon closure.

At all events there is in my view nothing in the decision of the Court of Appeal in Coughlan or its judgment to support Mr Greatorex’s fallback alternative submission that my decision in Worcestershire was wrongly decided. The task of adjudicating on a submission that an earlier decision of his or hers was wrongly decided calls for the application by the judge of the same process of objective analysis as would be applied when considering a similar submission in relation to any other authority together with a recognition that special care must be taken to guard against any conscious sense of amour propre. The subconscious is no doubt more difficult to guard against.

The starting point in my view is that the challenge in Worcestershire was, as it is in this case, a Wednesbury irrationality challenge based in particular on Lord Diplock’s dictum in Tameside cited above. The question for the court posed by Lord Diplock is: “Did the Secretary of State ask himself the right question and take reasonable step to acquaint himself with the relevant information to enable him to answer it correctly?” As posed by Lord Diplock, the question was said to be an integral adjunct of the general obligation imposed on all relevant decision makers to act lawfully in the respects identified in Wednesbury. (at 1065). It is in my view a requirement of general application to all relevant decision makers and a necessary condition for a decision to be characterised as lawful. Emanating as it does from the House of Lords it is in my view authority which was binding on me as a first instance judge in Worcestershire as it is on me as a first instance judge in this case. Moreover it was binding on the Court of Appeal in Coughlan whose decision must accordingly be interpreted in such a way as to be consistent with it if it is itself to be regarded as binding authority.

There is in my view no inconsistency between the decision of the Court of Appeal in Coughlan and the proposition laid down by the House of Lords in Tameside. The former was not in terms addressing a rationality challenge. It was in any event expressed not in terms of an absolute rule but at its highest in terms of a principle subject to exceptions. Thus Lord Woolf MR’s comments expressly contemplate the possibility that there may be special circumstances where it might be neither unrealistic nor unreasonable for a health authority to make assessments of patients and to take decisions on the details of placement ahead of a decision on closure. Further there is in my view a material difference between whether and in what circumstance there is a duty to make assessments of patients and make decisions on the details of alternative placements for all current users of a facility which it is proposed to close on the one hand and whether and in what circumstances there is a duty to be reasonably satisfied on the basis of information and/or experience that in the event of closure the decision taker will be able to continue to discharge its relevant statutory duties including, where relevant, meeting the assessed needs of existing users.

In Worcestershire the decision to close Pershore was specifically proposed and accepted on the basis that the four claimant users of Pershore would go to specified alternative centres and the decision to close was inextricably linked with a recognition, explicit and implicit, both by the officials and by the council that the closure would only be justified if the needs of these users could be met at Evesham and Cherry Orchard where it was anticipated they would go. In my judgment I said that there were no doubt all sorts of different ways in which the claimants’ needs could be met. However on the facts of that case the task that the council set itself as I apprehended it was one which included satisfying itself that the consequence of closing Pershore would be that the needs of the four specified users would continue to be met at Evesham and Cherry Orchard. My conclusion was that the basis upon which they sought to satisfy themselves was insufficient.

Since it was accepted by the council that it had a legal duty to continue to meet the claimants’ assessed needs and an integral part of the closure decision was a decision to meet those needs at the specified alternative centres, my decision was accordingly based on the premise that it was accepted by the council itself that it could only lawfully close Pershore if it was satisfied that the needs of the Claimant users would continue to be adequately met at those two specified alternative specialist facilities. It was also based on applying to the impugned decision the test, based on Lord Diplock’s dictum, whether the decision was taken on the basis of sufficient and adequate information such as to enable the decision maker to make a rational decision. (Page 41 E-G, page 44 D). There is in my judgement no inconsistency between either of those conclusions and the ratio of the decision of the Court of Appeal in Coughlan.

In reaching my conclusion I expressed the view that Worcestershire was a very different case on the facts from Coughlan. In the latter it was not an integral part of the health authority’s decision to close Mardon House that it accepted that the needs of Ms Coughlan could only be met in a specified alternative facility. On the contrary 43 possible alternative placements had been identified. Moreover it was implicit in the view which I expressed, commenting on the decision of Hooper J (as he then was) in R v Birmingham, that it illustrated that there are cases, of which Worcestershire was one, in which the relevant decision does require a level of detailed consideration as to the ability of what is proposed to meet the assessed needs that my decision was based on the fact that the impugned decision, unlike the four stage procedure applicable in Coughlan, involved not only a decision to close one facility but a decision to meet the assessed needs of the current users of that facility in specified alternative facilities. (Page 45 D).

Lord Woolf MR’s dicta were addressed to whether and in what circumstances there is a requirement to make assessments of patients and to take decisions on the details of placement ahead of a decision on closure. There is in my judgment no necessary or automatic overlap between the question whether in any particular situation there is a legal obligation to assess or reassess the needs or existing users and to make detailed decisions as to alternative placements prior to deciding whether to close an existing facility and the question whether a decision to close a facility complies with the Tameside requirement that the decision maker must ask himself the right question and take reasonable steps to acquaint himself with the relevant information to enable him to answer it correctly.

The latter requirement may not require an authority to assess or reassess the needs of existing users or to make detailed decisions on alternative placements. It may, however, in certain circumstances require it to take reasonable steps to acquaint itself with the relevant information it needs to enable it to have reasonable confidence that if a decision is taken to close the facility it will in due course be able to comply with its relevant statutory obligations in respect of existing users of the closed facility and indeed potentially in respect of existing users of other facilities which may be required to service the needs of the users at the facility to be closed.

Some support for this proposition is in my view to be found in R v Walsall, Bromley, Worcestershire and to a lesser extent in Coughlan itself. In Walsall Lightman J, in distinguishing that case from the case of ex parte Perry, emphasised that there was evidence that made clear that the needs of both applicants would be met equally well in other residential homes. “So far as the council had a duty to ensure that it possessed the relevant information to make a decision on closure and this included the impact on the applicants, I am satisfied that the council possessed it, and I am not satisfied that there is any reason (let alone evidence) to suggest that it did not possess it.” (Paragraph 9). There is in that observation as it seems to me, a recognition that when making a decision on closure a council may have a duty to ensure that it possesses information as to the impact on existing users of the facility to be closed as part of a duty to ensure that it possesses the relevant information to make the decision on closure.

In Bromley in rejecting a rationality challenge Mr Kenneth Parker QC held that the information known to those who took the decision to close the Belle Grove day centre gave them sufficient confidence that the needs of the service users at Belle Grove would be likely to be adequately met if they were transferred to an alternative day centre including Elmstead. The implication was that the requirement to ask the right question and take reasonable steps to become acquainted with the relevant information to enable it to be answered correctly required the taker of the decision to close Belle Grove day centre to have evidence reasonably capable of giving them sufficient confidence that the needs of the service users at Belle Grove would be likely to be adequately met if they were transferred to an alternative day centre including Elmstead.

On the facts of that case the council had prior to the decision to close carried out reviews of the ongoing service needs of the users of Belle Grove and also explored the options for alternative services should Belle Grove be closed. The closure decision was that Belle Grove should be closed subject to alternative day care service being made available for current users of Belle Grove and closure not proceeding until such time as those arrangements were in place. In those circumstances Mr Kenneth Parker QC held that the evidence available to the decision-maker did give sufficient confidence that their needs would be likely to be adequately met.

There was an overlap between his reasons for rejecting the irrationality challenge and his reasons for rejecting the second ground advanced by the claimants in that case, namely that the council had a legal duty to carry out a reassessment of the needs of service users before a decision to close Belle Grove. “It may, however, be that the same kind of considerations arise as would arise if the challenge were against the irrationality of the decision. In other words, it is alleged that the decision to close the facility is taken in circumstances where the authority recognises that users’ needs must continue adequately to be met, but unless an assessment was made the authority could have no reasonable expectation that the needs would be met by the provision of such alternative facilities as were provisionally proposed. So in ex parte Perry in the absence of an assessment the authority could have had no reasonable expectation that the needs of those suffering severe learning difficulties could be met by social care”. (paragraph 37). In effect the duty postulated by Mr Kenneth Parker QC was defined as a duty where the authority recognises that users’ needs must continue adequately to be met and the decision to close involves a proposal to meet those needs in identified alternative facilities, to have a reasonable expectation that the needs will in fact be adequately met by the making available of those identified alternative facilities. As to whether an authority could or could not have such a reasonable expectation in the absence of a detailed assessment that was a fact sensitive question which would depend on the facts of any particular case.

Thus Mr Kenneth Parker QC emphasised that in ex parte Perry the relevant government guidance made plain that in a case of those with severe profound learning disabilities a multi-professional assessment was indispensible to determine whether the services they needed could only be provided by the NHS or whether other alternatives would be appropriate and cost effective. No such assessments had taken place and he considered it unsurprising that Jackson J held the failure to be unlawful. In the absence of an assessment the authority in ex parte Perry could have had no reasonable expectation that the needs of those suffering severe learning difficulties could be met by social care. By contrast on the facts in Bromley he considered that the council had a perfectly rational basis for making the provisional decision to close the Belle Grove day centre and that no detailed assessments were reasonably required before a rational closure decision could be taken. Just as Lightman J held that the council in R v Walsall had sufficient information rationally to support the closure decision in that case and that no assessments of the kind referred to were needed, so in Bromley Mr Kenneth Parker QC considered that the council also had sufficient information rationally to support the conditional closure decision in that case.

In Worcestershire I observed that there were no doubt all sorts of different ways in which the needs of the claimants who used Pershore could be met and that the council had an obligation and certainly an entitlement to consider alternatives. However once the council had recognised (a) that it would have a continuing duty to meet the Claimant’s assessed needs in the event of closing Pershore, (b) that the closure option under consideration necessarily involved transferring the Claimant users to Cherry Orchard and one other user to Evesham and (c) that the closure would only be justified if their needs could be adequately met at Evesham and Cherry Orchard where it was anticipated they would go, it followed that the task which the council set itself was one that included satisfying itself that the consequence of closure Pershore would be that the needs of those users would continue to be adequately met at Evesham and Cherry Orchard. That in turn required the council to have sufficient information to be reasonably satisfied that the Claimant’s needs would in fact continue to be adequately met at Evesham and Cherry Orchard. On the facts as I found them the council did not have sufficient information and the irrationality challenge was thus made out.

In Coughlan although the Court of Appeal held that it was not necessary for the health authority either to make assessments or to take decisions on the details of placement, it noted that in support of its appeal the health authority relied on the fact that it had identified 43 potential alternative new care settings before making the closure decision and to the extent practicable had investigated their suitability. There may well be an implication that the health authority recognised that it was under some obligation to inform itself as to the potential consequences for the existing users of Mardon House of a decision to close it, albeit falling short of making assessments of their needs and/or decisions on alternative placements.

Mr Bowen on behalf of the Claimants in this case submitted that my decision in Worcestershire was based upon the well established principle in Tameside that a decision must be taken on the basis of sufficient and adequate information such as to enable the decision maker to make a rational decision. Based on an objective reading of my judgment in that case in my view his submission is correct. He further submitted that my decision in Worcestershire was also based upon a line of authority that recognises that there will be some special circumstances when a decision such as the one in issue in these proceedings – closure of a facility for vulnerable adults or children – should not be taken without a full reassessment of the affected individuals’ needs. That submission in my view is not correct for at least two reasons. First my decision was explicitly based on a conclusion that the decision in Coughlan was dealing with a different question to the one with which I was dealing, namely whether the council had failed to comply with its Tameside obligation to take its decision on the basis of sufficient and adequate information. Second it wrongly implies that my decision in Worcestershire was based on a conclusion that the council’s decision in that case was unlawful because it had not made a full reassessment of the Claimants’ needs. I did not find that the council should have undertaken a reassessment of the Claimants’ needs. I concluded that the council had acted unlawfully in failing adequately to inform itself as to whether it would be able to continue to meet the Claimant’s assessed needs in the two alternative facilities to which it was in effect deciding that they should go to. That is a different thing as was made clear by Mr Kenneth Parker QC in Bromley.

Mr Bowen submitted that the link between the Coughlan line of authorities and the irrationality ground was explicitly made by Mr Kenneth Parker QC in Bromley in the passage to which I have referred. While that is true, it is in my view a little misleading. Where an authority recognises that users’ needs must continue adequately to be met and that unless assessments are made it could have no reasonable expectation that the needs would be adequately met by the provision of such alternative facilities as are provisionally proposed, the case may both fall within the exceptional circumstances identified by the Court of Appeal in Coughlan in which there is a duty to make an assessment and a decision on placement and also be a case in which the irrationality challenge is made out because, by failing to make assessments the authority can have had no such reasonable expectation. However it does not follow that the only way in which an authority can discharge its Tameside duty to be adequately informed before making a closure decision is to conduct assessments or reassessments of needs of existing users. On the contrary as the decision in Bromley itself shows, there are circumstances in which a council may satisfy its Tameside obligation without undertaking assessments or reassessments.

Whether or not it is necessary to make assessments or reassessments of the needs of existing users in order to comply with the requirement to take reasonable steps to be properly informed must in my view depend on the facts and circumstances of any particular case. Factors which may be relevant to a consideration of whether it is or is not necessary may include the nature of any relevant statutory obligations imposed on the authority and whether they are owed to particular persons and if so which persons, the extent to which the needs of existing users of a facilities whose closure is under consideration can only be met at specified alternative facilities, whether the decision to close includes expressly or by implication a decision to transfer existing users to specified alternative facilities, the length of time between the decision to close a facility and the point at which it is foreseeable that the needs of existing users will have to be met at alternative facilities, the nature and extremity or lack of extremity of the disabilities of the users of the facility to be closed and the nature and complexity or lack of complexity of the services provided by the facility to be closed and the degree to which they are or are not bespoke.

Where, as here, the challenge to the council’s decision is based on the irrationality ground its success must stand or fall in my view by reference to whether the decision does or does not satisfy the Tameside requirements. Whether in any case it does satisfy those requirements involves an application of Lord Diplock’s test to the circumstances in which the decision was taken. That in turn involves identifying what was the right question which the decision maker should have asked him or herself and whether he or she took reasonable steps to acquaint themselves with the relevant information to enable them to answer it correctly.

In this case the impugned decision as recorded in the minutes of the Executive meeting held on 23 May 2011 was a decision to accelerate the cessation of the provision of short breaks for children with disabilities at Crawford Avenue from the opening of the Village School in December 2012 to 1 October 2011 and to restructure staffing arrangements at Clement Close and Crawford Avenue in order to deliver an effective service at Clement Close to meet the full range of children’s needs. On its face that decision did not involve or include a decision that the needs of all the existing users of Crawford Avenue could or would be met at a restructured and refurbished Clement Close. It did involve by implication a decision that Clement Close should be put into a position where it would be able to meet the needs of children with behavioural difficulties in addition to, as at present, the needs of children with physical disabilities. That is in my view an important feature of the case which distinguishes it from the facts in both Worcestershire and Bromley, in both of which the decision to close the relevant facility was taken on the basis that the needs of existing users at the facility to be closed would be met in future by identified alternative facilities. It was that factor which gave rise to the Tameside obligation on the part of the two councils to possess sufficient information to enable them to have sufficient confidence that the needs of the users at the facilities to be closed down would be likely to be adequately met if they were transferred to the facilities to which it was proposed they should be transferred. In neither case had the council undertaken assessments of all the existing users of the facility to be closed down. But in one case (Bromley) it was held that the council did possess sufficient information notwithstanding that failure and in the other (Worcestershire) the finding that the council did not have sufficient information was not because it had failed to assess the needs of the existing users but rather because it had insufficient information to be reasonably confident that the needs which had been assessed would continue to be able adequately to be met at the proposed new facilities.

That is of course not determinative of the question whether on the facts of this case the council did have sufficient information to satisfy its Tameside obligation or even of the question whether it was necessary to make reassessments of the needs of existing users of Crawford Avenue in order to comply with that obligation. It is, however, an important aspect of the case and one which suggests that the relevant question which the decision takers had to ask themselves and in respect of which they had to be sufficiently informed was not the same as those in Worcestershire and Bromley.

This was implicitly recognised by Mr Bowen in that part of his skeleton argument in which he identified the relevant information which he submitted the council needed to enable it to take the decision to close Crawford Avenue as being whether there was sufficient alternative provision to meet the assessed needs of service users. While the council did not accept in principle that there is a universal obligation on a council to have sufficient information as to whether there will be sufficient alternative provision to meet the assessed needs of service users of a facility before deciding to close it, it is clear on the facts that the decision was taken explicitly on the basis that if Crawford Avenue were closed the families of all existing users of Crawford Avenue would be offered alternative short breaks provision based on their existing allocation of hours and that where parents who had been assessed for overnight short breaks did not wish to take up the alternatives of provision through direct payments or care at home other overnight options such as foster care or out of borough resources would be considered (see paragraph 3.18 of the 23 May 2011 report).

It is undoubtedly the case that, just as it was contemplated in April 2010, when the original decision to close Crawford Avenue was taken, that much of the demand for short break care which was then being met at Crawford Avenue would in due course be met at the new purpose built facility at the Village School, so when the decision was taken in May 2011 to accelerate the closure of Crawford Avenue, it was contemplated that much of the demand would be met at the restructured and refurbished Clement Close until Clement Close was itself closed down and the Village School opened. However it is equally clear that the refurbished and reconfigured Clement Close facility was only one of a number of means by which it was contemplated that existing demand would be met if the decision to accelerate the closure of Crawford Avenue was taken.

In those circumstances the adequacy or inadequacy of the council’s information as to the suitability of the restructured and refurbished Clement Close to meet the needs of children with behavioural difficulties is in my view relevant to but not determinative of the Claimants’ rationality challenge to the decision to close Crawford Avenue.

The starting point in considering whether the council asked itself the right question and if so whether it had sufficient information to answer it correctly is to focus on the nature of the decision taken. That decision in my view was not confined to the decision prematurely to close Crawford Avenue. On the other hand, unlike in Worcestershire and Bromley, it did not include a decision to transfer the existing users of Crawford Avenue to specified alternative facilities. It did in my view extend to a commitment to continue to provide to existing users of Crawford Avenue alternative short breaks provision based on their existing allocation of hours and to those parents who had been assessed for overnight short breaks and who did not wish to take up the alternatives of provision through direct payments or care at home to consider other overnight options such as foster care or out of borough resources.

It is also in my view relevant to consider what was the council’s existing practice both in assessing relevant needs and in meeting them. Here again there are in my view material differences between the facts of this case and the facts in both Worcestershire and Bromley. In Worcestershire the severity of the Claimants’ disabilities required intensive round the clock expert nursing and other care. In Bromley the Claimant’s daughter was an elderly lady of 86 who had suffered form Alzheimer’s disease for about five or six years and attended a day centre from 10 a.m. to 5 p.m. on every day of the week. By contrast in this case the amount of service provided by the council is on a significantly smaller scale. By way of example the Claimant’s son was assessed as needing overnight short breaks and was thus entitled to receive 472 hours per annum which correlates to 28 nights at roughly 16 hours each. That was later reduced to one session of after school care from 4 p.m. to 7 p.m. once a week and one session of day care once a month. Some of the children who attend Crawford Avenue for short break respite care live at home where they are looked after by family members.

The council’s assessment procedure is confined to identifying whether there is a need for respite short breaks and if so the number of hours per annum of short break respite care needed and whether the need is for overnight short break respite provision or not. The assessment procedure does not condescend to any further detail and in particular does not specify what kind of short break respite is needed in the particular case, whether that must be provided residentially, or can be provided at home or, if it must be provided residentially whether and if so what particular facilities are required to meet the child’s needs.

It does not of course follow from that that the needs of all children or parents/carers are identical or that they can all be met adequately irrespective of the means by which they are met. It does, however, reflect the fact that both in Brent and nationally there is a wide spectrum of means by which short break respite provision is delivered. Indeed that fact is itself reflected in Regulation 4 of the Breaks for Carers of Disabled Children Regulations 2011 which came into force on 1 April 2011. As mentioned Regulation 4 provides that in performing their duty under paragraph 6(1)(c) of Schedule 2 to the 1999 Act a local authority must provide so far as is reasonably practicable a range of services which is sufficient to assist carers to continue to provide care or to do so more effectively. In particular it must provide as appropriate a range of (a) day time care in the homes of disabled children or elsewhere, (b) overnight care in the homes of disabled children or elsewhere, (c) educational or leisure activities for disabled children outside their homes, and (d) services available to assist careers in the evenings, at weekends, and during the school holidays.

In my view Regulation 4 underlines the point that there is a wide spectrum of ways in which a local authority may lawfully assist parents and carers to continue to provide care or to do so more effectively. It is also pertinent to note that the duty in Regulation 4 is not expressed as a duty owed to a particular child or carer to provide a particular means of delivering short break respite care. Rather it is a general obligation on the part of a local authority to provide a range of services and that is a duty which is qualified by the words “so far as is reasonably practicable” and “as appropriate”. It is also relevant that the focus both of the duty under paragraph 6(1)(c) of the 1989 Act and Regulation 4 is not the provision of service to children but rather the provision of assistance by way of short break respite to individuals who care for children. No doubt the four specified means of providing respite assistance to parents/carers were chosen to reflect the fact that the circumstances of parents/carers vary. Some may have difficulties accommodating respite care in their homes either in the day or overnight. Others may not. No doubt among those circumstances are the nature and extent of the disabilities or behavioural difficulties of the child in question but in the context of Regulation 4 and paragraph 6(1)(c) that is not the primary focus. In her second witness statement Ms Morris stated that the provision of respite care/short break services is primarily to support the parents of children with challenging needs, in particular to try and avoid family break down, although it is accepted by the council that the provision must be suitable for the children in question.

As already mentioned in her third witness statement Ms Morris explained that there is no separate assessment of a child’s need for respite/short breaks. Rather it is part of the overall assessment of need which is undertaken at the outset in respect of children with disabilities or behavioural difficulties. An assessment of the parent/carer’s needs is also carried out at the same time.

Where the parent/carer’s needs are assessed to be significant the parent/carer can request a separate and more detailed assessment of their needs separately form the child in need assessment. That has only been the case for a small number of parent/carers within the whole of the Children with Disabilities Service of the council. With regard to the Claimant and the witnesses supporting her claim Ms Morris was aware of only one such carer’s assessment. In the alternative scenario which is far more common there is simply an identification of a need for respite/short breaks provision (or not) and whether or not the need (if it is identified) is for overnight respite/short break or not. That need is quantified as a number of hours per annum. Ms Morris stated that that is in line with the practice of most local authorities in meeting their duties under the Children Act 1989 and the Breaks for Carers of Disabled Children Regulations 2010. She was not aware of any case in which the council has ever identified a need for a particular type of respite/short break provision, other than extremely specialised provision such as hospice care which is rare.

Once the assessment of need has taken place the decision as to what resource should be provided to meet it is made after considering the range of available resources and discussion with carers. At that stage a number of factors are considered including family circumstances, housing and parents’ ability to manage finances. After discussion and negotiation with carers regarding the available options, including short breaks respite care at a unit, direct payments, specialist foster care and care at home, a decision is made by the council on how to meet the assessed needs. It is at that later stage that the issue of what is most suitable is considered.

Because the need being addressed by short breaks provision is that of the parent/carer for respite, Ms Morris stated that issues such as a large garden or a sensory room would not be identified as part of that need or the provision to meet it, although if what is desirable from any point of view can be provided then it would be. If home care would not be suitable because for any reason it was judged that it would not meet the parent’s/carer’s need for respite then that need would be met either by ensuring that it took place at Clement Close or in the private and voluntary sector or by explaining how direct payments could be used to pay for a carer to take the child out of a home to a suitable venue or activity.

One of the documents placed before the court was the most recent Child in Need Plan for AP dated 4 October 2011, based on a meeting held on 11 July 2011 attended by RP, AP’s doctors, a nurse at the Village School and a social worker. The minutes of the meeting recorded various reviews of AP’s progress in terms of health and education. Included in the Plan was an item relating to short break services. Under the heading “Desired Outcome” was recorded “to support Mr and Mrs P in their ability to continue to care for A by providing short breaks services which meet A’s needs.” Under the heading “Actions” was written “Crawford Avenue to continue to offer day care short breaks for a minimum of seven hours per month to A. after school care to be offered on e day per week. This service may transfer to Clement Close. Option of direct payments.” This was of course written after the decision to close Crawford Avenue had been taken. In a much earlier document dated 5 August 2004 there was a record of the council’s Disabled Children and Young Persons Service Resource Panel having agreed an allocation of 472 hours respite care for day care and overnight break. That followed a review assessment dated 14 April 2004 which under the heading “are there further changes that need to take place in order for the child’s needs to be met?” it was stated “[AB] would benefit from more structured activities during the school holidays whereby [AB] and his family would benefit from respite. With the obvious reservation that the two of these documents are very old and that they were produced at very short notice they appear broadly consistent with the general account given by Ms Morris.

Mr Bowen submitted that it is artificial to distinguish between an assessment and a care plan and that an assessment and care plan which did not identify the placement would not be lawful. He submitted that the assessment process must conform with the approach to care assessment identified by Richards J in R (AB) v Nottingham CC [2001] 4 CCLR 295 referred to above to the effect that a three stage process must be followed: “ identification of needs, production of a care plan, and provision of the identified services.” (Paragraph 41).Thus he submitted that it would be absurd to suggest that such a three stage process would not identify a particular facility such as Crawford Avenue which meets very different needs to a facility such as Clement Close in its current state which only provides for children with physical disabilities.

Mr Bowen is no doubt correct to state that looked at globally the council’s practice includes a stage at which the means for delivering short break respite are identified by the council. However it does not seem to me to follow, particularly having regard to the matters to which I have referred, that the council could not lawfully close Crawford Avenue without having conducted reassessments of the needs of all the existing users of Crawford Avenue. Indeed it is not alleged by the Claimant that the council is under such a duty. The duty alleged on the part of the council was a duty to take reasonable steps to acquaint itself with the relevant information to enable it to take the decision to close Crawford Avenue, namely whether in fact there was sufficient alternative provision to continue to meet the assessed needs of service users.

It is in my view important to bear in mind the context in which the decision to accelerate the closure of Crawford Avenue was taken. As set out in the summary of the 23 May 2011 report the proposals were said to be in line with the longer term strategy for reducing residential provision and increasing more flexible options for families for short breaks which are community based. That was said to be being achieved through promoting the take up of direct payments and working in partnership with families and providers to develop skills and increase community provision. The move to direct payments was said to be reflected nationally and to be central to the council’s Aiming High Joint Commissioning Strategy.

That is consistent with the statement in the introduction to the Short Beaks Statutory Guidance that “the patterns of short breaks has changed substantially since the publication of the original Volume 2 of the Children Act 1989 Guidance…. There has been a shift away from longer periods in residential or foster care to shorter periods often in the child’s own home or community. Many of these services are now provided through direct payments. Aiming High for Disabled Children contributed to this change by requiring a rapid rise in the amount of short breaks available to disabled children and their families” (paragraph 1.7). A measure of the range of potential needs and services that may be involved in the provision of short breaks is the statement in the Guidance that for relatively low levels of short break provision an assessment provided or commissioned by the local authority will often not be necessary. (paragraph 3.4).

A further significant part of the background is provided by Ms Morris in her second witness statement where she stated that the council is one of a declining number of local authorities that still manage their own residential provision, other authorities providing overnight provision when its required through commissioned placements in residential units or foster homes or direct payments to families for them to purchase their own overnight care. This echoes the statement in the Equality Impact Assessment attached to the 23 May 2011 report that nationally there is a drive to increase direct payments or personal budgets and to reduce the time that children spend in residential care away form their families and communities. Thus although it is clear that it was contemplated that much of the need currently met by Crawford Avenue would be met at the reconfigured and refurbished Clement Close, the decision to close Crawford Avenue must be seen in the wider context that there are many other local authorities subject to precisely the same statutory obligations as Brent council which do not currently manage their own residential provision at all.

In my judgment it is unhelpful and potentially misleading to identify as the critical issue in this case whether it falls on what was described as the Coughlan or the Worcestershire side of the line. As discussed those cases were in effect decided by answering different questions. Coughlan was addressing the question whether there was a duty to make assessments and decisions on alternative placements before closing Mardon House. Worcestershire was addressing the question whether the council had sufficient information to support a reasonable conclusion that the needs of the four Claimants would be adequately met at the alternative facilities to which the council recognised, as part of its closure decision, that they would be transferred in the event that Pershore was closed. To my mind if there is a dividing line to which it is helpful to refer in the context of this case it is that between Worcestershire on the one hand and Bromley on the other. In both cases the court addressed the same broad question, namely whether the relevant council had sufficient information to support a reasonable conclusion that the assessed needs of existing users of the facility to be closed would continue to be met at the identified facilities to which the relevant council accepted that they would be transferred in the event of closure. In neither case had the council conducted reassessment of the existing users of the facility to be closed. That notwithstanding, the question was answered in the affirmative in Bromley and in the negative in Worcestershire. The reasons why the question was answered differently in those cases were fact sensitive. They turned on an analysis of the nature of the existing needs on the one hand and the state of knowledge of the relevant council as to the likelihood that those needs would continue to be met at the new facilities on the other and a judgment as to the adequacy of that knowledge.

In my judgment in the particular circumstance of this case the question which the council needed to ask itself and answer to enable it to make a rational decision as to whether prematurely to close Crawford Avenue was whether if Crawford Avenue were prematurely closed the council would be likely to be able to meet by alternative means the assessed needs of such of the existing users of Crawford Avenue as would still be eligible for short break respite care when Crawford Avenue was closed. (The qualification which I have added reflects the evidence of Ms Morris that one of the factors which the council said it had to take into account was the fact that with the passage of time some users might reach the age of majority and other children who were not users of short break respite at the time the decision was made might become so during the period between the closure of Crawford Avenue and the opening of the Village School.) It follows that in my judgment the rationality challenge turns on whether the claimant has established on the balance of probabilities that the council had insufficient information to reach a reasonable conclusion that it would be able to meet those needs, or to use the language of Mr Kenneth Parker QC in Bromley to give it sufficient confidence that it would be likely to meet them adequately.

That that is the question which the council needed to ask itself is in my view consistent with the approach adopted by Mr Kenneth Parker QC in Bromley and by me in Worcestershire. In Bromley Mr Kenneth Parker QC rejected the irrationality challenge on the ground that the background knowledge of those responsible for the decision gave them sufficient confidence that the needs of the service users at Belle Grove would be likely to be adequately met if they were transferred to an alternative day centre, including in the present context Elmstead. He explained the decision of Jackson J in ex parte Perry on the basis that in the absence of an assessment the authority could have had no reasonable expectation that the needs of those suffering severe learning difficulties could be met by social care, it having been recognised by the authority that users’ needs must continue adequately to be met. In Worcestershire I found that the task which the council set itself included satisfying itself that the consequence of closing Pershore would be that the needs of those users would continue to be met at Evesham and Cherry Orchard. It was on that basis that I concluded that it had an obligation to have sufficient information to support a reasonable conclusion that those needs would continue to be met at Evesham and Cherry Orchard. Support is also to be found in the judgment of Lightman J in Phillips and Roe: “So far as the council had a duty to ensure that it possessed the relevant information to make a decision on closure and this included the impact on the applicants I am satisfied that the council possessed it”.

In this case as already mentioned although it was not an integral part of the decision to close Crawford Avenue that the needs of existing users would be met at the refurbished Clement Close the decision was taken explicitly on the basis that if it were closed the families of all existing users of Crawford Avenue would be offered alternative short breaks provision based on their existing allocation of hours and that where parents who had been assessed for overnight short breaks did not wish to take up the alternative of provision through direct payments or care at home, other overnight options such as foster care or out of borough resources would be considered. In my judgment that suggests that the council did have an obligation both to ask itself a question as to the consequences of its decision for existing users of Crawford Avenue and to have sufficient information to provide a reasonable answer to that question but also that the relevant question was not identical to that facing the councils in Worcestershire and Bromley.

The council itself recognised that it had to be able to continue to offer the families of all existing users of Crawford Avenue alternative short breaks provision based on their existing allocation of hours and, where appropriate, suitable arrangements for overnight short breaks. It did not recognise that it was necessary in order for the decision to close Crawford Avenue prematurely to be justifiable that the needs of existing users of Crawford Avenue should be able to be met specifically at the restructured and refurbished Clement Close. The question which the council needed to ask and answer was to that extent much more general than in the cases of Bromley and Worcestershire. It was not for example in my judgment necessary for the council to be satisfied that there was a reasonable likelihood that the needs of all existing users of Crawford Avenue could be met at the restructured and refurbished Clement Close. Given the comparatively large number of existing users of Crawford Avenue it may in practice well be that if the council could not have been reasonably satisfied that it would be likely to be able to meet the needs of many of the users of Crawford Avenue at Clement Close, serious question marks might have been raised as to whether the available alternative means of satisfying those needs other than at Clement Close would have been sufficient and adequate. However as appears form Ms Morris’ third witness statement the council was so satisfied.

I have already set out Ms Morris’ evidence as to the council’s state of knowledge in respect of the various alternative means by which it contemplated that the needs of existing users of Crawford Avenue could be met in the event of Crawford Avenue being closed prematurely. It addressed the questions (1) whether the council, when taking the decision to close Crawford Avenue, considered that after the planned refurbishment Clement Close would be suitable for meeting the assessed needs of children and carers such as the Claimant and her child and the other carers and children in respect of whom witness statements have been served; (2) whether it was satisfied and if so on what basis that sufficient places would be available to meet those needs; (3) if not whether the council was satisfied and if so on what basis that the other premises referred to in the draft answers to request 6, 7 and 9 of the Claimant’s Part 18 request dated 30 September 2011 would be suitable for the meeting of those assessed needs and if so that sufficient places would be available to meet them; and (4) if not whether the council’s position was that those needs could lawfully be met in some other way such as direct payment and/or domiciliary care, in which case which other way?

It is clear from the council’s answers to the two requests for further information and Ms Morris’ witness statements that careful consideration was given to the suitability of Clement Close to meet the needs of parents and carers of children with behavioural difficulties including severe behavioural difficulties as well as the needs of those children. It was recognised that Clement Close would be unsuitable unless changes were made to it and even then unless children with challenging behaviour attended on different days to children with physical disabilities. The first obstacle was addressed in the health and safety risk assessment which had been carried out and which was referred to in the 23 May 2011 report. That set out a schedule of works setting out the health and safety requirements which needed to be carried out including the removal of a number of hazards at Clement Close which could be dangerous for children with severe behaviour difficulties who were currently supported at Crawford Avenue. Those works were necessary to enable Clement Close to be used to support and accommodate children with severe behavioural difficulties including autism. In addition a training programme for staff was identified as necessary to ensure that all staff would be able to support and care for both groups of children. It was contemplated that both the work of refurbishment and the training programme would take place if and when the decision was taken to close Crawford Avenue prematurely. Initially it was anticipated that the cost of works to Clement Close would be £50,000 but by the time of the Executive meeting held on 23 May 2011 that had reduced to £27,000.

The Council’s solution to the second obstacle was a plan to make Clement Close available on alternate weeks to children with behavioural difficulties and children with physical disabilities. However that was a provisional plan and there would be flexibility to adjust it once parents’ choices had been made to reflect, among other things it is to be inferred, the respective numbers of children in each group whose needs and the needs of whose parents and carers would be met at Clement Close.

It was recognised by the council that some parents and carers who used Crawford Avenue had expressed concern in the consultation that Clement Close would not be suitable for the needs of children with challenging behaviour because it is too small. It was accepted in the 23 May 2011 report that Clement Close is a smaller unit with less garden space than Crawford Avenue. However it was said that the unit had its minibus and is close to parks and Willesden Green Leisure Centre and staff would make better use of community facilities and outside spaces to compensate for the more limited accommodation. In addition in answer to the second Part 18 request for further in formation it was stated that an additional bedroom at Clement Close would be used as a break out room which could be used for children with very challenging behaviour to address the concerns about the lack of open spaces at Clement Close.

It was the view of managers that Clement Close would be suitable for service users of Crawford Avenue once the health and safety refurbishment works and staff training had been completed on the basis that both set of children would be cared for and supported there at different times. Officers considered that after the refurbishments and adaptations and staff training had been completed the needs of the service users at Crawford Avenue including the Claimant and her child and the other carers who have submitted witness statements in her support and their children could be met at a refurbished Clement Close. Although Clement Close is not as big as Crawford Avenue it has four bedrooms on the first floor and a lift linking the ground and first floor whereas Crawford Avenue has no lift. On the first floor in addition to the bedroom there is an extra room which is used as a meeting room and which doubles up as a music room. On the ground floor there is a lounge, a dining room, a kitchen, a sensory room and an extra room which would be converted into a break out room as part of the refurbishments works to be carried out. The garden at Clement Close surrounds the building in an L shape and the distance between the building and the back of the garden is approximately 50 feet. Officers took the view that although he garden is not as large as that at Crawford Avenue it is of a sufficiently reasonable size for it to be suitable for children with behavioural disorders.

Ms Morris accepted on behalf of the council that although the provision of respite care/ short breaks services is primarily to support the parents of children with challenging needs in particular to try and avoid family breakdown, that provision must be suitable for the child in question. However because the need being addressed by short breaks provision is that of the parent/carer for respite, issues such as a large garden or sensory room would not be identified as part of that need or the provision to meet it although if what is desirable from any point of view could be provided then it would be. In the council’s additional written submission, whose contents were confirmed by Ms Morris in her third statement, the council emphasised that “this decision” was taken very carefully by professional officers with extensive and day to day experience in this area and that the work done included working out the total amount of provision which Clement Close would provide after the refurbishment. I take “this decision” to be a reference to the recommendation in the 23 May 2011 report rather than the decision to close down Crawford Avenue prematurely which of course was taken by the Executive.

Bearing in mind the high threshold which the Claimant must cross to succeed on an irrationality claim, I am not satisfied that in so far as it was a necessary condition for a rational decision to close Crawford Avenue prematurely that the council should have sufficient information to give it reasonable confidence that Clement Close would be a suitable means of meeting the needs of parents and carers of children with severe behavioural difficulties including autism such as the claimant and the other parents and carers who gave witness statements in support of her and also the needs of their children, the evidence establishes on a balance of probabilities that the council did not have sufficient information. I do not accept Mr Bowen’s submission that having regard in particular to the size and configuration of Clement Close it was necessary at the very least for the council to make some assessment of needs and individual consultation with individual families.

Having regard to all the circumstances to which I have referred I do not consider that this constitutes an abnormal or exceptional circumstance such as was contemplated by the Court of Appeal in Coughlan nor do I consider that it was necessary for the council to make such assessments in order to comply with its Tameside obligation. It may be that there are some existing users of Crawford Avenue for whom the council may in due course decide that respite care in their own homes is unsuitable, for example because of the size of their home, the number of other children in the family, the number of parents in the family and the working arrangements of the child’s parents and/or carers. However that is a separate question from the question whether the respects in which respite care provided at a reconstituted Clement Close would be less desirable than that currently provided at Crawford Avenue are of such a character as to render Clement Close unsuitable as a means of meeting the needs of current users of Crawford Avenue. The judgment that it would be suitable was reached by managers and professional officers with extensive day to day experience in this area who considered the matter very carefully. It was supported by a health and safety report whose recommendations were accepted. It is not for the court to substitute its judgment for the judgment of the relevant decision taker, particularly where, as here, it is supported by the judgment of professional officers with extensive day to day experience in the relevant area following careful review. Mr Bowen’s submission in his skeleton argument that the council’s assumption that Clement Close could, with appropriate refurbishment and increased staffing levels be suitable for children currently cared for at Crawford Avenue who continued to require residential short breaks care had not been based on any expert assessment as to the suitability of Clement Close for that particular group of individuals save for what he described as a vague reference to a risk assessment mentioned by Rik Boxer at the OSC meeting on 8 June 2011 was of course made before the Claimant had sight of the Defendant’s additional written submissions and Ms Morris’ third witness statement.

Ms Morris stated that the council could not be certain that there would be sufficient places available at Clement Close for all existing users of Crawford Avenue but judged it likely that there would be sufficient places. To the extent that the council could not be certain about the demand for Clement Close it was satisfied that the other premises identified in the draft answers to requests 6,7 and 9 of the Claimant’s second Part 18 request for further information would be suitable and that sufficient places would be available even if Clement Close could not meet all the demand it would be able to meet most of it so that the number of any unsatisfied service users was judged likely to be small. As already mentioned it was expected that there would be a loss of capacity of 25 to 30% as a result of the closure of Crawford Avenue, even allowing for the fact that both Crawford Avenue and Clement Close were only being used at approximately 70 to 80% capacity. However it is clear that the views referred to above were based on a careful analysis of likely supply and demand by professional officers from the Children and Families department with day to day experience in the area. They first estimated how many existing users they believed would want to continue with overnight respite provision since as stated in the 23 May 2011 report those children would be given priority over children who only received day care. They also estimated how many parents would need or choose direct payments as an alternative to Clement Close. They looked at the rising trend in numbers in the past two years of parents who wanted and chose direct payments in respect of other matters. Based on the take up of direct payments over the past two years they anticipated that there would be some parents who would choose direct payments. There was also brought into the equation an estimate as to how many new cases there would be between April/May 2011 and the end of 2012 when the Village School would be open requiring short breaks as they had details of the numbers coming through the system of children who would be of the age of possibly needing respite care.

I am not satisfied that the Claimant has established on the balance of probabilities that the council did not have sufficient information to enable it to have reasonable confidence that the needs of most of the existing users of Crawford Avenue would be likely to be capable of being met at Clement Close. The background in which the decision was taken and the calculation was made was that the April 2010 report, which recommended the closure of Crawford Avenue and the transfer of the provision of services for both categories of children to the proposed new unit at the Village School, was based on the premise that of the eight beds at the new unit only four would be available for residents of Brent the other four being available for people from other boroughs. That is the same number of beds as were going to be available at Clement Close once it had been restructured and refurbished. Of course the new unit at the Village school was not due to open initially until 2013 and then until late 2012 so that there was more time to make the necessary arrangements for meeting the needs of users at Crawford Avenue when it was ultimately closed. However in my judgment it is a relevant part of the background in so far as it supports the conclusion reached by the council in May 2011 that it was likely that most of the demand would be able to be met by Clement Close. If there had been no alternative means of providing short break respite for the existing users of Crawford Avenue other than at Clement Close, there might, given the comparatively short time between the decision to close Crawford Avenue and the contemplated time at which it would be closed, be more force in Mr Bowen’s submission that the council could not be reasonably satisfied that it would be likely to be able to meet the needs of all existing users of Crawford Avenue without more detailed consideration of the numbers and the individual circumstances of the existing users of Crawford Avenue whose needs would have to be accommodated at Clement Close.

However that was not the case. It was not a part of the decision to close Crawford Avenue that the council recognised that the whole of the demand for short break respire care from existing users of Crawford Avenue would be or would have to be met at Clement Close. To the contrary it was always contemplated and made clear by the council that there was a variety of means by which the demand would and could lawfully be met. Having regard to the statutory framework, the existing practice of the council, the practice of other local authorities in the country, the nature of the relevant needs, the nature of the available alternative means of providing short break respite care and the experience of the relevant council officials, in my judgment that was a reasonable position for the council to adopt.

Given the conclusion that most if not all of the demand from existing users of Crawford Avenue could be met at Clement Close and the failure of the Tameside challenge to that conclusion, it does not seem to meet that the Claimant has established on the balance of probabilities that this is a case in which nothing short of assessments of the needs of all existing users of Crawford Avenue and/or Clement Close would suffice to enable the council to have sufficient information to have reasonable confidence that it would be able to meet the relevant needs other than by keeping Crawford Avenue open.

That of itself is not dispositive in favour of the council of the Tameside challenge in respect of its conclusion that it was likely that the needs of existing users of Crawford Avenue would continue to be met if Crawford Avenue was closed prematurely. Given the acceptance by the council that, even though unlikely, the needs of a small number of existing users of Crawford Avenue might not be able to be met at Clement Close the question arises as to what information it had in relation to the adequacy and suitability of alternative means by which that small demand would be met should the need arise.

As to that Ms Morris stated that if there was more respite care which had to be provided in the private sector the Commissioning Resources Team already had the resources in place as they are an experienced team with the contacts, negotiating skills and knowledge, including referral details and London database of private care placement providers. They already managed the arrangements for approximately 350 care placements for children including respite in the private and voluntary sector including Bucket and Spades in Finchley and MIG House in Ilford. Details of the capacity of the latter were provided in the draft response to the Claimant’s second Part 18 request for further information in which it was said that all the placements in Pield Heath, Sybil Elgare, Buckets and Spades and MIG House were suitable to take children with behavioural disorders, the Lighthouse was registered to take children with either learning disabilities or autistic spectrum disorder and Bucket and Spades was said to be suitably adapted and staffed to take children with physical disabilities as well as children with behavioural disorders.

It is also in my view necessary in this context to bear in mind the evidence in relation to the use of direct payments and domiciliary care in the home as a means of providing short break respite care both by the council and many other local authorities and to the statutory guidance in that regard. Notwithstanding the large number of existing users at Crawford Avenue, in my judgement there is no evidence to suggest that the council acted unreasonably in anticipating that there would be some parents that would choose direct payments. That of course would reduce the number of parents opting for residential care either at Clement Close or elsewhere.

Although in one sense the result of the reviews carried out by the council in July and August 2011 is not strictly relevant to the Tameside challenge in that by definition its results were not known at the time the decision was taken, they do in my judgment lend some support indirectly to the reasonableness of the conclusions actually reached by the council at the time. In those reviews, the carers of 10 of the 64 service users at Crawford Avenue indicated that they wished to take up direct payments for care at home and the carers of two of the service users at Clement Close indicated that they would consider the provision of direct payments. Further carers of eight of the existing service users at Crawford Avenue indicated that they wished to take up residential provision in the private or voluntary sector.

It might be said that these figures need to be treated with some caution in that the choices were expressed at a time when the decision to close Crawford Avenue had already been taken so that remaining at Crawford Avenue was not an available option. Nonetheless in my view it lends some support to the proposition that faced with a choice between Clement Close on the one hand and either alternative residential provision in the private or voluntary sector or direct payments for care at home a significant number of parents or carers would be likely to opt for one or other of the latter options.

It was also stated that the review showed that 25 of the existing service users currently using Crawford Avenue and 10 of those using Clement Close agreed to be accommodated at Clement Close after it is refurbished. Again, subject to the same reservations, it seems to me that that lends some indirect support to the reasonableness of the council’s conclusion that Clement Close would be a suitable means of meeting the needs of existing users of Crawford Avenue.

So far as the issue of emergency respite care is concerned, in my judgment that is not decisive in the current context. The 23 May 2011 report stated that if Clement Close was not available to provide emergency respite care provision (which would be the case for children with behavioural difficulties on any day when Clement Close was being used to provide care for children with physical disabilities) there would be alternative emergency placements provided with a foster carer or out of borough residential school such as Bucket and Spades and the MIG House and other resources that became available which might include the Lighthouse after it had been evaluated by the council. There is in my view no evidence to suggest that the council would be in breach of any statutory duty in the event that it were to make arrangements and pay for emergency respite care outside the borough rather than at Crawford Avenue should the need arise. No doubt that would be more inconvenient and less desirable for parents carers and children alike. However that is not the same thing as a breach of statutory duty. It was in any event presumably inherent in the current set up that, notwithstanding the general under occupancy at Crawford Avenue, there might be occasions when under the current regime an individual emergency might not be able to be catered for at Crawford Avenue. Whether that is so or not I do not consider that this is an issue which changes the overall conclusion which I have reached.

Putting together the individual conclusions which I have reached and also standing back and looking at the matter in the round, I am not satisfied that the Claimant has established on the balance of probabilities that the council acted unlawfully in its decision to close Crawford Avenue prematurely. I do not consider that any breach of its Tameside obligation has been established on the balance of probabilities. Nor do I consider that it has been established on the balance of probabilities that this is a case falling within the abnormal and exceptional circumstances contemplated by the Court of Appeal in Coughlan where there is, independently of any Tameside obligation, a duty to make assessments of individual needs of existing users of a facility and decisions on alternative placements before a decision to close a facility can lawfully be taken. The council was faced with an unenviable task. It had to make savings in its Children and Families budget. It further concluded that that decision would lead to less hardship than any available alternative. Those facts in themselves are highly relevant but not in themselves dispositive or the question whether in reaching its decision the council acted unlawfully. However for the reasons which I have given in my judgment it has not been shown on the balance of probabilities that the council did act unlawfully. It concluded that the savings could be made by the decision which it took without preventing it from continuing to meet the needs of existing users of Crawford Avenue. I am not satisfied that the Claimant has established on the balance of probabilities that the council had insufficient information to enable it to be reasonably confident that it would able to meet their needs by alternative means.

For the reasons which I have given in my judgment the challenge to the decision to close Crawford Avenue prematurely based on irrationality fails. As accepted by the Claimant, it follows that the new ground based on section 149 of the Equality Act 2010 must also fail. Those being the only remaining grounds on which the decision to close Crawford Avenue prematurely is challenged it follows that the challenge to the decision to close Crawford Avenue prematurely fails.

Notice of the Claimant’s intention to challenge this decision in the alternative was sent by an email dated 30 September 2011. However it was not until 3 October 2011 at 3:50 p.m., three days before the hearing in front of me that the Claimant served the document entitled “Claimant’s additional decision to be judicially reviewed and further additional grounds of judicial review” on the council. I have set out the most important contents of that document in paragraph 22 above. In that document it was asserted that this separate challenge had become necessary in the light of the council’s evidence served on 28 September 2011 and instructions taken from the Claimant and other opponents of closure suggesting that the council proposed to close the unit immediately without ensuring that adequate alternative provision was in place.

In his skeleton argument dated 3 October 2011 Mr Greatorex submitted that permission to advance this proposed new challenge to the second decision should be refused on the grounds of delay. In the Claimant’s supplementary skeleton argument dated 4 October 2011 Mr Bowen repeated that it only became necessary to challenge the closure decision once the council had served its further evidence but added that that included its response to the Part 18 request. He said that the letter from the Harrow Law Centre to Brent dated 30 September 2011 explained why it was necessary to raise this additional ground. In fact that letter said that there were a number of potential grounds to support the new challenge which were identified but not in any way expanded on and many of which did not find their way into the 3 October 2011 document. He submitted that it would be unacceptable and unlawful for the council to go ahead with the closure of Crawford Avenue before Clement Close had been refurbished and alternative placement had been identified and assessed as suitable for all current users of Crawford Avenue including suitable emergency placements. The court was invited to exercise its discretion to disapply the requirement in Practice Direction 54.11.1 to give notice of intention to apply to rely on additional grounds no later than seven clear days before the hearing. In his additional written submission dated 7 October 2011 Mr Greatorex challenged the assertion that the Claimant had only very recently learned of the decision to close Crawford Avenue. He submitted that that decision had been communicated on 21 June 2011 and explained in full with Ms Morris’ first witness statement date 1 September 2011.

In my judgment there is some force in Mr Greatorex’s submission. On 21 June 2011 the council notified all parents and carers of the 23 May 2011 decision to cease to provide a service at Crawford Avenue from 1 October 2011. In that letter it was also explained that there would be a planned closure for a three week period from 12 September to 3 October to provide time for the new staff team to attend training and for the refurbishment work to be completed at Clement Close. In her first witness statement dated 1 September 2011 Ms Morris said that a contractor was on standby to start carrying out the works at Clement Close on 12 September 2011 with a view to completing the works within three weeks so that Clement Close would be ready by 3 October 2011. Moreover she said that the council’s plans were that from 9 September 2011 “when Crawford Avenue closes” members of staff would use up their annual leave entitlement and thereafter take gardening leave until the expiry of their redundancy notices.

In her first witness statement Ms Morris also said that if and when Crawford Avenue closed in September 2011 (not October 2011) staff training would be essential to ensure that all staff who work at the new Clement Close facility could support and care for the two groups of children and that if the interim relief sought (which was subsequently granted by Collins J on 6 September 2011) the training programme expected to last for three weeks between 12 September and 30 September 2011 would have to be cancelled and take place later. It is not clear to me which part of Ms Morris’ second witness statement dated 30 September 2011 is relied on as putting the Claimant on notice for the first time of the possibility that Crawford Avenue might be closed before the training and refurbishment programmes were completed for Clement Close.

In any event in my judgment the notice given to the council of this proposed new challenge to the second decision was far too short. Although foreshadowed in an email dated 30 September 2011 it was not until 3:50 p.m. on 3 October 2011, three days before the hearing that the details of the grounds were spelled out. The council was already struggling to respond to the second Part 18 request for further information which dealt with a wide range of factual matters relevant to the substantive challenge to the first decision and the proposed new irrationality challenge to it. In my judgment they simply did not have enough time to be in a position to adduce such evidence as they might think necessary or appropriate to deal with this completely new challenge to a completely new decision.

At the hearing on 6 October 2011, for which as I have indicated unrealistically short time estimates had been given so that there was insufficient time for Mr Greatorex to complete his submissions, there was barely time for him to do more than make a passing reference to the challenge to the second decision. As I understood it he said that in the circumstances then prevailing it would be necessary for both Clement Close and Crawford Avenue to be closed at the same time for three weeks for logistical reasons. However no details were given and this was of necessity not supported by evidence which the council had had no time to prepare. Again as I understood it Mr Greatorex submitted that if both Clement Close and Crawford Avenue had to be closed for a three week period during which the necessary refurbishment works and staff training were carried out, there would be no illegality on the part of the council. The provision of short break respite care for those who had been allocated a fixed number of hours per year did not have to be provided every week.

In principle I can see a material difference between a position in which Crawford Avenue were to be closed with a long gap before a refurbished Clement Close were opened or indeed with no indication as to when that would be on the one hand and a short three week break to enable necessary refurbishment and training to take place on the other.

Be that as it may I have no doubt that in all the circumstances it would be unfair on the council for permission to be granted to challenge the second decision by way of amendment. There may be all sorts of matters relating to logistics which the council would have wished to rely on in opposition to the belated challenge to the second decision. Further and in any event matters have moved on since the proposed new challenge was first canvassed. I have now rejected the Claimant’s principal claim for judicial review challenging the first decision and the council will no doubt need to consider the practical consequences of my decision. There may well have been further developments since the hearing relating to staff redundancies at Crawford Avenue, the logistics of arranging training for the staff at the refurbished Clement Close and the refurbishment of Clement Close itself. The Claimant’s proposed challenge may well become otiose. In the council’s response to the Claimant’s second Part 18 request for further information it was said that placement reviews had been carried out for 58 of the service users at Crawford Avenue and Clement Close. Details of their preferences were also set out and I have referred to them earlier in this judgment. In addition Children Act assessments in respect of the children of the Claimant and other carers/parents supporting her had in some cases been carried out. It was also stated that once the outcome of this judicial review claim is known and if the claim is dismissed further planning would progress and arrangements would be made directly with carers by the manager of Clement Close who also currently manages Crawford Avenue. It may very well be that this judgment, the events which have occurred since the hearing on 6 October 2011 and contact between the council and the Claimant and her supporters hereafter will dispose of any concerns which gave rise to the late attempt to challenge the second decision without the need for further litigation. Whether that is so or not I do not consider that it would be fair to the council or in the interest of justice for the belated application to amend at what was the eleventh hour to be granted.

For the reasons given above permission to amend the claim for judicial review to include a challenge to the second decision to implement the first decision to close Crawford Avenue is refused.