Karia, R (on the application of) v Leicester City Council

There are few issues, which prompt such controversy as attempts to close a home for elderly people who have lived there for long periods. This is the background to the present application which is a challenge by Ms Amrutben Karia (“the Claimant”) who seeks to quash the decision (“the October Decision”) made by Leicester City Council (“the Council”) on 15 October 2013 to withdraw the provision of direct residential home care in Leicester. This application relates to Phase One of the October Decision, which was that three care homes including Herrick Lodge would close. The Claimant, who is a British Asian woman of Gujarati descent, is 101 years old, and she has lived in Herrick Lodge since 1999. It is the only one of the three homes due to close under Phase One of the October Decision that has not been closed, because its closure has been postponed pending the determination of the present application.

The Council is the social services authority for Leicester, and so it has an obligation under s.21 of the National Assistance Act 1948 (“NAA”) (which is set out in the Appendix to this judgment) to make arrangements for providing residential accommodation to those in its area who, by reason of, inter alia, age are in need of care and attention which is “not otherwise available to them”. It is common ground first, that there is no obligation on the Council to provide the accommodation itself as it can discharge its duty to such individuals by using accommodation run by private organisations and by the voluntary sector, and second, that the Claimant is a person to whom such duty is owed by the Council. It is not suggested that the Council is now in breach of such duty while Herrick Lodge remains open.

The challenges to the October Decision are that the Council:

In response, the Council contends:

A rolled-up hearing was ordered and I heard both the application for permission and the substantive hearing. I have been greatly assisted by the excellent oral and written wide-ranging submissions from Ms Helen Mountfield QC, Counsel for the Claimant and from Mr. Andrew Sharland, Counsel for the Council. I know how concerned the Claimant and her fellow residents at Herrick Lodge as well as their families are about the uncertainty caused by the decision to close Herrick Lodge. I had wanted to hand down the judgment speedily. Unfortunately, as I explained to the parties in late July, due to unforeseen factors unconnected to this case, it was not possible for me to hand down this judgment before the Long Vacation as I had originally hoped and expected to do. Thereafter, holiday plans of Counsel and my holiday plans delayed the handing down from August until the end of the Long Vacation.

It is necessary to stress three matters with which this case is not concerned. First, my role on this application is limited because a judicial review application, such as the present application, is not an appeal on fact. Indeed, this was pointed out by Richards J (as he then was) in Bradley v The Jockey Club [2004] EWHC 2164 QB in a passage which was expressly approved on appeal in that case by Lord Phillips MR [2005] EWCA Civ 2164 paragraph 17 when, giving the judgment of the Court of Appeal. Richards J had observed in relation to a judicial review application that:

“37… the function of the court is not to take the primary decision but to ensure that the primary decision-maker has operated within lawful limits… the essential concern should be with the lawfulness of the decision taken; whether the procedure was fair, whether there was any error of law, whether any exercise of judgment or discretion fell within the limits open to the decision-maker, and so forth…”

Second, I am neither required nor qualified to comment on the substantive merits or otherwise of the decision to close Herrick Lodge or any of the other care homes in Leicester. Therefore, I will not do so.

Third, the Claimant accepts that the Council’s lengthy and detailed consultation was both adequate and lawful. So there is no challenge to the consultation process which the Council had undertaken leading up to the October Decision.

On 3 November 1999, the Claimant, who was then aged 87 years of age, entered Herrick Lodge on the basis of an Individual Placement Agreement. She speaks Gujarati, but she does not speak English. When the Claimant moved into Herrick Lodge, the majority of the residents were not Asians. The records of the Council show that there were 31 residents in Herrick Lodge between 1 April 1999 and 31 March 2000 of whom 61% were white, 29% were Asians, 7% were of Afro-Caribbean descent and 3 % were of other ethnic origin. At present, the only permanent residents of Herrick Lodge are Asians or British Asians, but in the year before the October Decision was made, there were 2 non-Asian temporary residents there.

Herrick Lodge has 40 bedrooms, but only those on the ground floor are currently in use. The top floor of Herrick Lodge is not used as it has not been brought into line with fire risk assessment standards, but the evidence from the Council was that the “upstairs bedrooms could be brought back into use if there was sufficient demand” as “the cost of the work would have been relatively low to remedy if there had been greater demand from people wanting to move into the home”. It seems likely that the prospect of Herrick Lodge and other residential homes closing might well have dissuaded other prospective residents from moving there.

Herrick Lodge has a specialist kitchen providing Gujarati-style vegetarian meals as well as having a temple within its premises. It provides culturally appropriate care such as festival celebrations and visits to temples. Both the carers at Herrick Lodge and the other residents speak Gujarati. It is located among the Indian community in Leicester, which is an area where Gujarati is predominantly spoken.

On 15 February 2011, the officers of the Council produced a Report of Equality Impact Assessment (“EIA”) in relation to the proposal to close all directly run council care homes and/or to transfer some or all of them to the private sector. In late February 2011 as part of its budget decision, the Council voted to consult on the closures of these homes.

Between 14 March 2011 and 14 June 2011, the Council commenced its consultation exercise on the proposals affecting the eight residential care homes run by the Council, and they were Abbey House, Arbor House, Herrick Lodge, Cooper House, Elizabeth House, Nuffield House, Preston Lodge and Thurn Court House. The proposals involved closing six of these homes and redeveloping the remaining two to provide short-stay support to help older people stay in their homes longer.

As a result of widespread opposition to these proposals, the Council carried out a second consultation exercise between 4 July 2011 and 26 September 2011 on three proposals which included first, closing some or all of the homes to allow re-investment in intermediate care and second, reducing the number of homes and closing those with low occupancy and closing them to new admissions. Both of those proposals would have involved relocating residents. The third proposal was to sell or lease some of the homes as growing concerns to entities, which would then develop and modernise the homes.

The Claimant was interviewed as part of the process and which included one-to-one interviews and group sessions. The responses reported in the Council’s consultation report dated 22 December 2011 showed strong opposition to closures and a mixed reaction to the proposal to transfer ownership. There were some strongly worded objections from residents and their relatives in respect of the proposals for the closure of Herrick Lodge.

Before the publication of the Council’s consultation report, the Council’s Adult Social Care and Housing Scrutiny Commission issued its own review of the consultation and proposals as a result of requests from Council’s Overview Select Committee on 1 August 2011. It noted that there had been disproportionately fewer admissions to Council-run homes compared to privately and independently-run homes, but it observed that:

“We believe the ongoing threat of closure raised by the recent consultation and review is a contributory factor leading to a decrease in admissions to Council-run homes”.

The review also raised concerns about the figures regarding running costs including those relating to Herrick Lodge noting that the reduction in occupancy has significantly increased the cost per head for some of the homes during the suspension of admissions during “the safeguarding investigations”. As a result of its investigations, the Commission recommended that the Elderly Person’s Homes should remain open and be run by the Council. The report was noted by the City Mayor.

On 22 December 2011, the Council produced an EIA in relation to the proposals. It noted that in particular the residents of Herrick Lodge were concerned that their cultural needs might not be met in another sector. An “Action Plan” annexed to the document highlighted the need to “ensure clear understanding of how BME needs will be met”.

On 6 February 2012 at a meeting with the Mayor and the Cabinet, the decision of the Council in the light of the consultation was announced by Councillor Mohammed Dawood, the Assistant Mayor-Adult Social Care and Housing. He observed that following its statutory consultation and review “the Council were now looking at a clear way forward for its elderly persons’ homes”. He explained that the change was needed, but that it needed to be carefully introduced and planned over the next few years. It was also necessary to ensure that there was adequate funding to enable the changes to take place in a structured way that fully recognised the needs and wishes of existing residents and their families. It was likely that the Council would continue to offer some direct provision for the next few years and almost certainly up to 2014/2015, but that it would also be looking at how services needed to change in the long term.

In a report dated 6 September 2012, Councillor Mohammed Dawood responded to the previous year’s Scrutiny Commission Report explaining that the status quo could not be maintained in the longer term for a number of reasons including first, that the number of admissions to residential care were declining across all sectors as people chose alternative services, extra care and assistive technology. He noted that the Council had made substantial investment in services aimed at promoting independence. Second, he explained that people in Leicester had told the Council that they preferred to live independently at home for as long as possible, and that the Council would need to develop such services. Third, it was pointed out that continuing to run the eight Council homes “offered poor value for money to the Council”, as places there cost £229 more per person per week to offer places in a Council-run home compared to a home in the independent or voluntary sector. It was also stated that a full EIA had been carried out as part of the executive report on those eight homes.

On 9 April 2013, a letter was sent to residents at those homes, including the Claimant, stating that no organisation wanted to buy and to run Herrick Lodge and that the Council were proposing to close it in 2013, but that they had not made a decision about it at that time. It was explained that before making a decision, it was necessary for the Council to check first that all residents had had the opportunity to have their say about the proposed changes, and second to ensure that the Council’s Scrutiny Commission, which checks and challenges proposals, could consider what was being proposed and why it was being proposed.

The letter sent to the Claimant and other residents explained first, that the number of people choosing council-run homes was falling compared to previous years, and second, that the eight homes, which included Herrick Lodge were not fully occupied which meant that the Council lost money. The letter observed that additional money was required to upgrade the homes and “continuing to run the eight homes is not something it can continue to do in the long term”.

On 24 April 2013, a further letter was sent to the Claimant stating that as she contributed to the original consultation and because the broad ranges of proposals had not changed since the consultation in 2011, the Claimant did not need to have another meeting with the Council unless she wanted to have another meeting.

On 2 May 2013 the Council’s Adult Social Care Housing Scrutiny Commission met to consider a proposal which rejected the option of keeping the residential homes open because:

It was also stated that the proposal in relation to Herrick Lodge, Elizabeth and Nuffield Houses was that they would close in 2013 and that “the soft market testing has shown that these homes were not attractive to potential providers and they have low numbers of permanent residence, particularly Herrick Lodge which has only 5 residents”. The proposal summarised the 2011 EIA and it noted in respect of Herrick Lodge that their residents believed that “cultural needs cannot be met elsewhere. The EIA addresses this concern and describes how the Council would work with residents and carers to reduce negative impacts”. It was therefore recommended that these homes should be closed.

On 1 July 2013, the Commission met again to consider the previous reports. It noted that the occupancy in Herrick Lodge was inaccurate because the upstairs of the care home could not be used. It recognised from comments that had been made that that this particular home particularly attracted Asian people and concern was expressed for their welfare if Herrick Lodge closed. Councillor Patel, who later made the October decision, observed that Herrick Lodge was not the Council’s only commitment to Asian people. It was recorded the Executive was asked to produce some up-to-date and accurate occupancy rates with reference to Herrick Lodge.

At the further meeting held on 11 July 2013, the Claimant’s granddaughter (who has played an effective and prominent role in seeking to further the interests of the residents at Herrick Lodge) adduced documentary evidence showing that the council-run homes were asked not to take in new residents. The Executive had issued a report before the meeting explaining that that “upstairs at Herrick Lodge had not been used since 2011 following a fire risk assessment but that it could be put back into action after spending £29,000 to £34,000”. The Commission noted that it was unable to reach firm recommendations because it was “conflicted as to whether these homes should remain open in some capacity”.

On 5 September 2013 the Commission met again, while on 19 September 2013, the Full Council met to consider petitions opposing the closure of the three homes which were under immediate threats of closure. Those petitions included one from the Claimant opposing closure of Herrick Lodge and which had more than 1500 signatures. At the petition debate, the Assistant Mayor for Adult Social Care repeated that there was a reduced demand for residential care and the Chair of the Scrutiny Commission stated that they had reached a conclusion that the proposal to close the homes should be approved because of falling demand. The City Mayor then “seconded” the proposal of the Chair of the Scrutiny Commission to recommend the adoption of the proposals.

By the October Decision, which was an Executive Decision Report issued on 15 October 2013 by the Assistant Mayor, Councillor Patel, the lead member, it was decided by the Council to close four homes and to sell four other as going concerns. The first phase involved closing three homes at Herrick Lodge, Elizabeth House and Nuffield House in early 2014; that is the decision under challenge. I should explain that since 2011, the Council has had a directly elected Mayor, and it operates a “mayor and executive” system of governance. That means that decisions are not made by the full Council, but instead they are made in executive meetings but are then subjected to scrutiny by committee. Decisions are then announced in writing accompanied by relevant decision.

The reasons for the October Decision were stated to be that:

The record of the October Decision explains that assurances were given that the current residents in Herrick Lodge and the other residential care homes as well as their families and carers:

“will be fully supported through all changes, including detailed plans developed carefully with and for every resident moving to another residential home”.

There was a deadline for the decision under challenge to be the subject of a “call-in” by any five members of a Scrutiny Committee or any five Councillors, but that right was not exercised.

It therefore becomes necessary to consider how Councillor Patel made the October Decision. Shehas explained in a witness statement that she has lived, grown up, studied and worked in the Belgrave area in Leicester, which is the area in which a large proportion of Asians in Leicester live and in which Herrick Lodge is located. She states that throughout her life, she has taken a very active part in the Asian community in Leicester. She has explained that she has worked tirelessly to overcome discrimination and to further opportunities particularly for women and the Black community by which she means the Asian, African and African Caribbean communities. Councillor Patel has explained that she did not regard matters such as “elimination of unlawful discrimination”, “advancement of equality of opportunity” and “fostering good relations” as “empty and meaningless concepts but matters of great importance that should be central to decision- making by public bodies from the outset”. The PSED had been drawn to her attention. Obviously, the critical factor is what she considered in relation to equality issues before making the October Decision. Therefore, the fact that she had these views does not necessarily mean that she had complied with the PSED.

Councillor Patel has explained thatprior to her appointment as Assistant Mayor responsible for Adult Social Care in November 2012, she had been “initially sceptical” about the proposal to sell and close the Council’s homes because, of amongst other things, the likely impact that it would have on existing permanent residents. So she explained that before deciding whether to accept this proposal, she wanted to familiarise herself with the arguments and the evidence that was said to support such a course so as to be sure that it was a correct decision and that the needs of existing residents were met. Councillor Patel in the course of this familiarisation exercise spoke to a number of experienced elected members of the Council to obtain their perspective and their thoughts. Mr Ross Wilmott, a former Leader of the Council, has said that he spoke to Councillor Patel soon after her appointment and that she did not then appear to be in favour of closing Herrick Lodge.

Ms Tracie Rees, who is the Director for Care Services and Commissioning within the Adult Social Care Department at the Council, has explained that Councillor Patel had made it clear to her since her appointment in November 2012, that before any final decision was taken in relation to the closure of it care homes, the Council would need to examine equality issues generally and, in particular, in relation to the residents of Herrick Lodge. Ms Rees stressed that “equality considerations have been in the forefront of the Council’s consideration from the outset”, and that there were EIAs completed in February 2011, 22 December 2011 and May 2013. In addition, there were up-to-date EIAs which included an action plan annexed to the Executive Report and which led to Councillor Patel making the October Decision. Councillor Patel has said that a range of further discussions took place during 2013 as the Council further considered and consulted on the future of its homes for elderly people. She explained that many issues were debated and considered by both the Executive and by the Adult Social Care Scrutiny Care Commission those issued included considering the capacity of the independent sector residential care market as well as the immediate availability and suitability of alternative provision to meet the needs of current residents.

Councillor Patel has explained that during this period leading up till the October Decision, she spent a considerable amount of time considering what should be decided in relation to the homes for the elderly. In particular, she visited at least twice all the homes at risk of closure or sale, including Herrick Lodge. When Councillor Patel was at Herrick Lodge, of which she said that she had been well aware before her appointment, she made a point of speaking to staff and residents in Gujarati where appropriate to ensure that she understood their concerns first-hand and what was important to them. She said that she spoke to the Claimant on at least one of her visits to Herrick Lodge.

Councillor Patel explained that having spoken to the residents at Herrick Lodge, including the Claimant, about moving before making the October Decision, she was well aware of their concerns relating to their specific cultural, dietary, linguistic and religious needs, as well as their wish to be able to see friends and relatives. It is clear that Councillor Patel was therefore well aware of the consequences for the Claimant which would be caused by closing Herrick Lodge without finding alternative accommodation which would cater for those needs and wishes. This is not surprising bearing in mind that Councillor Patel had lived in, grown up in and worked in the Belgrave area of Leicester where a large proportion of the Asian community in Leicester live and had lived. Councillor Patel explained that in her long experience, Herrick Lodge was seen as a “City Council” facility rather than a facility at the heart of the Asian community. Indeed, I have explained in paragraph 9 above, the very varied racial mix of the residents at Herrick Lodge when the Claimant had first moved in there.

It is clear that the Claimant was concerned not merely about the predictable concern about having to relocate if Herrick Lodge was closed, but that she was also troubled because, according to her granddaughter, Ms Rinku Chandarana, the places to which she thought that she would be relocated would not satisfy her specific cultural, dietary, linguistic and religious needs in the way in which they had been satisfied at Herrick Lodge. The Claimant, for example, needed carers who would speak Gujarati and would therefore be able to communicate with her. These consequences were very disturbing for her and they would arise because she was an Asian, which is the protected characteristic.

Councillor Patel has explained that she sought to find out if places were available in homes that would met the cultural, dietary, linguistic and religious needs of the Claimant and the other Asian/British Asian residents of Herrick Lodge and where they could be visited by her relatives and friends. She stated that she had made her own inquiries, using her own network in the community to understand what was available. Councillor Patel has observed that she was aware of the ASRA House Scheme which she had visited in the past and that she knew of its facilities and reputation as she lived in the area. She had also heard good reports of a new Gujarati home on Loughborough Road including from a son of resident of Herrick Lodge who had told Councillor Patel that if his parents were required to move from there, he would want them to move to this place in Loughborough Road as it had a good reputation and as it specifically catered for Gujeratis.

Councillor Patel stated that before making the October decision, she asked the Council officers to confirm that there were suitable places available for Asian residents who lived in Herrick Lodge in Asian Lifestyle homes locally. Ms Rees has explained that four of the Asian Lifestyle homes were within easy travelling distance of the Claimant’s daughter and granddaughter. Councillor Patel concluded that as result of her inquiries there were homes in the independent sector which would satisfy the culinary and religious demands as well as the linguistic needs of British Asian/Asian residents of Herrick Lodge and which would allow them to see friends and relatives. She has explained that she was aware that the vast majority of British Asians/Asians placed by the Council then preferred to live in Extra Care homes or in privately run Asian Lifestyle homes, rather than in Council-run homes generally and in Herrick Lodge in particular. Councillor Patel said that she satisfied herself that the staff at such homes spoke Gujarati and that the homes would be able to meet the linguistic needs of the British Asians/ Asian residents of Herrick Lodge.

Ms Rees’ evidence was that in each of those Asian Lifestyle homes, residents could have a shrine in their rooms and have staff who could speak several languages including Gujarati. She also carried out inquiries which showed first, the financial stability of these homes which had been growing in number, and second, that there were vacancies in these homes. Her evidence was there had been some growth in Asian Lifestyle homes in recent years, although this growth was not as great as Ms Rees had first suggested.

Councillor Patel stated that if and when the residents of Herrick Lodge would have to move out, there would be Gujarati-speaking staff who would be available to support residents through a specified seven-stage moving process. The seven stages were first, deciding who needed to be involved in the resident’s moving plan; second, arranging a meeting to look at what is most important to the resident in his or her new home; third, obtaining a social work reassessment of the needs of the resident; fourth, arranging a meeting with the resident to review the moving plan and agreeing what will happen next; fifth, planning the resident’s move once a new home has been found; sixth, assisting the resident on the day of the move, and finally helping the resident after the move. It is worth emphasising that the second step would enable the cultural, dietary, linguistic and religious needs of the resident to be identified, while the fourth step would entail considering if those and other needs of the resident would be met in his or her new home.

Councillor Patel explained how in making the decision under challenge she:

Councillor Patel explained how in making the decision under challenge, she had regard to the need to achieve the various statutory objectives.

Before dealing with the challenges relied on by the Claimant, it is appropriate to deal with a preliminary issue raised by the Council, which is that the present claim was not made promptly, and that therefore permission to pursue it should be refused. The basis of that contention is that CPR 54.5(1) provides that claims for judicial review should be brought promptly, and in any event no later than three months after the ground to make the claim first arose. In this case, the October Decision was made on 15 October 2013, while the claim form was filed on 14 January 2014, which was just within the three-month period, but according to the Council, it still was not made promptly.

The Council contend first, that this delay is not properly explained as it should have been; second, that the Claimant should have made an application for an extension of time in which to bring the present claim, but that it has not done so; and third, that it has been prejudiced by any failure on the Claimant’s part to act promptly because it had already taken significant steps together with residents and their families to plan new placements with the consequence that permission to pursue the claim should be refused.

The Claimant’s solicitor has filed a witness statement explaining first, that he was approached by the Claimant’s granddaughter after the October Decision was made, and second, that between 31 October 2013 and 18 November 2013, she supplied this solicitor with over 2000 pages of material relating to this case. The solicitor was then involved in working abroad shortly after that, but that during that period, he read the material which had been supplied with. On 6 December 2013, the Claimant’s solicitor was able to indicate that the Claimant’s case merited an application for legal aid for Investigative Representation to fund the preparation of a pre-action protocol letter and consideration of the response. By 12 December 2013, the Claimant’s solicitors were satisfied that they had capacity to pursue this claim and the Claimant duly instructed them.

Funding was obtained on 17 December 2013, and a detailed pre-action protocol letter was sent on 22 December 2013. The Council responded on Friday 10 January 2014. Legal Aid was then obtained and the application for judicial review and supporting documents were served on Tuesday, 14 January 2014.

I am quite satisfied that the application for judicial review was made promptly in the light of the detailed and lengthy factual background to this claim, the issues involved and the amount of documentation relating to this claim. In reaching that conclusion, I have not overlooked the Council’s case that they have been prejudiced by the Claimant’s failure to act promptly, but the evidence alleged to show prejudice is in my opinion weak and very unimpressive.

As I have explained, the thrust of Ms Mountfield’s case is that the Council failed to comply with the Tameside duty which is the principle derived from Lord Diplock's speech in Secretary of State for Education and Science v Tameside MBC [1977] AC 1014, in which he observed (at page 1065B) that:-

“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?”

The courts have been concerned to ensure that this exercise does not allow decisions to be challenged solely on what are really grounds of a dispute on factual matters. Indeed, it is common ground that the scope and nature of the Tameside duty was correctly summarized by the Divisional Court in R (Plantaganet Alliance) v Secretary of State for Justice [2014] EWHC 1662 (QB) when it stated that:

“100.

The following principles can be gleaned from the authorities:

1.

The obligation upon the decision-maker is only to take such steps to inform himself as are reasonable.

2.

Subject to a Wednesbury challenge, it is for the public body, and not the court to decide upon the manner and intensity of inquiry to be undertaken (R (Khatun) v Newham LBC [2005] QB 37 at paragraph [35], per Laws LJ).

3.

The court should not intervene merely because it considers that further inquiries would have been sensible or desirable. It should intervene only if no reasonable authority could have been satisfied on the basis of the inquiries made that it possessed the information necessary for its decision (per Neill LJ in R (Bayani) v. Kensington and Chelsea Royal LBC (1990) 22 HLR 406).

4.

The court should establish what material was before the authority and should only strike down a decision by the authority not to make further inquiries if no reasonable council possessed of that material could suppose that the inquiries they had made were sufficient (perSchiemann J in R (Costello) v Nottingham City Council (1989) 21 HLR 301; cited with approval by Laws LJ in (R (Khatun) v Newham LBC (supra) at paragraph [35]).

5.

The principle that the decision-maker must call his own attention to considerations relevant to his decision, a duty which in practice may require him to consult outside bodies with a particular knowledge or involvement in the case, does not spring from a duty of procedural fairness to the applicant, but from the Secretary of State's duty so to inform himself as to arrive at a rational conclusion (per Laws LJ in (R (London Borough of Southwark) v Secretary of State for Education (supra) at page 323D).

6.

The wider the discretion conferred on the Secretary of State, the more exercise it (R (Venables) v Secretary of State for the Home Department [1998] AC 407 at 466G)”.

The Claimant makes two complaints to which I now turn.

The Claimant’s case is that the Council approached this issue and proceeded on the basis of fundamental errors of fact in relation to the likely future demand for residential care home provision when it determined in the light of the Laing & Buisson report that the growth in the national demand for residential care up to 2020 would be 4.5%. It is also said that it committed a Tameside error by failing adequately to inquire into, and inform itself as to, the relevant statistics on a highly material question of fact, and consequently it formed an inadequately informed conclusion on this issue.

I agree with Mr Sharland that s21 NAA does not impose on the Council a duty to ensure a suitable provision for residential accommodation in its area. There is no other statutory provision which imposes such a duty and although there has been some reference to s46 National Health Service and Community Care Act 1990 (“NHSCCA”) which is set out in the Appendix and which requires a Council to have a plan for community services. That is different from having a duty to ensure adequate provision.

The errors of the Council are said by Ms Mountfield to be that it:

Before dealing with Ms Mountfield’s case, it is appropriate to deal with a submission made by Mr Sharland that the Claimant’s case on the Tameside issue must be rejected because in the words of paragraph 23 of the Claimant’s skeleton “the Council proceeded on the basis of a fundamental error of fact as to project future levels of local and national demand for residential care home provision” (emphasis added). His submission focuses on the use of the word “future”.

Mr Sharland contends that the relevant principles for setting aside a decision on the basis of a mistake of fact were set out in E v Secretary of State for the Home Department [2004] QB 1044 by Carnwath LJ (as he then was) when giving the only reasoned judgment of the Court of Appeal. He observed, with emphasis added, that:

“In our view, the time has now come to accept that a mistake of fact giving rise to unfairness is a separate head of challenge in an appeal on a point of law, at least in those statutory contexts where the parties share an interest in co-operating to achieve the correct result. Asylum law is undoubtedly such an area. Without seeking to lay down a precise code, the ordinary requirements for a finding of unfairness are apparent from the above analysis of CICB. First, there must have been a mistake as to an existing fact, including a mistake as to the availability of evidence on a particular matter. Secondly, the fact or evidence must have been ‘established’, in the sense that it was uncontentious and objectively verifiable. Thirdly, the appellant (or his advisers) must not been have been responsible for the mistake. Fourthly, the mistake must have played a material (not necessarily decisive) part in the Tribunal's reasoning.”

Mr Sharland contends that even if the Council made the mistakes alleged by the Claimant, they did not constitute errors of law entitling them to obtain an order quashing the October Decision because the mistakes do not relate to existing facts, but instead they relate to the future. Ms Mountfield’s response is that the errors constitute a mistake of fact because they relate to what the available and present statistics showed. I need not consider this issue further because even if the Claimant can rely on all her submissions and overcome Mr Sharland’s submissions on this point, her claims will fail for the reasons which I shall now explain.

The starting point for Ms Mountfield is that in determining the viability of care homes and, in particular, any decision to close them, the important relevant considerations were the recent and future levels of demand for residential provision, the nature of the demand, and consequently the nature of provision required to meet this demand. The Claimant’s case is that the Council in breach of its duty first, proceeded on the basis of a fundamental error of fact as to the projected future levels of local and national demand for residential care home provision; and second, proceeded without adequately informing itself on a central and material question of fact as to the projected future levels of demand for residential care.

Ms Mountfield stresses that the Council's Executive report of 7 March 2013 was based on an assumption that “demand for residential care is declining because the requirements of older people are changing”, even though it was recognised that the elderly population of Leicestershire was rising. This was repeated in the comments which were made in the report, which preceded and which led to the October Decision and which explained that the Council was “seeing reduced demand for residential care in the Council’s homes and increasing demand for other types of social care support”. The Council was also working on that assumption in the report of 7 March 2013 that the forecast growth in national demand for residential care to 2020 was said to be 4.5% (Appendix C of the Executive Report of 7 March 2013). This forecast was projected forward to arrive at a requirement for an additional capacity of approximately ninety residential and nursing beds.

The Council disputes the contentions first, that it failedto adequately inform itself on material issues of fact and proceeded on the basis of fundamental errors of fact and second, that it proceeded to make the October Decision in breach of the Tameside principles.

Ms Mountfield contends that the Council’s figures were wrong, because this forecast growth in national demand was contradicted by nationally available statistics in the Projecting Older People Population Information (“POPPI”) statistics collected by NASCIS, which estimated that the total population aged 65 and over living in a care home with or without nursing would rise by 24.5% between 2012 and 2020. Ms Mountfield states that this was a serious error as it was more than five times the Council's estimate of 4.5%. She attaches importance to the fact that NASCIS is described on the website of the Health and Social Care Information Centre (a government agency) as:

“A single national resource of social care information for England. The website contains a collection of data, tools and resources designed to meet the needs of service providers, managers, researchers and policy makers”.

Mr David Roy, who is a project accountant who assisted the Council in its review of the future provision of elderly care, has explained the approach of the Council to those POPPI figures. He observed that the methodology used to estimate future demand was that the increase would be from 330,380 in 2012 to 411,328 in 2020, which was the increase of 22.5%; this was “calculated by applying percentage of people living in care homes in 2001 to projected population figures”.

Mr Roy has explained that the Council was not comfortable with this statistical approach, as it was:

“too simplistic, it assumes a linear relationship between increases in population and increases in demand for care beds. This does not take into account the changing dynamics and alternative types of care noted above that reduce the demand for elderly residential care. This, in my professional view, casts doubt on the reliance of the ONS methodology”.

Mr Roy has also stated that the second reason for not using the POPPI figures was that those figures were based on the 2001 Census, which was out of date by 2013, and so it was therefore unreliable by the time when the October Decision was taken. A third reason why Mr Roy did not consider the 2001 Census figures to be reliable was that since the date of that census in 2001, the proportion of younger adults had continued to rise and in Mr Roy’s words “this puts even further doubt on the 11% POPPI increase in demand therefore due to the material limitations of the POPPI forecast”. This was a conclusion open to the Council and it was not irrational or Wednesbury unreasonable for the Council to arrive at it.

In any event, the POPPI figures relied on by the Claimant cannot be regarded as in Carnwath LJ’s words in E (supra) as “‘established’, in the sense that “it was uncontentious and objectively verifiable.” This is another reason why this complaint of the Claimant cannot be accepted.

Ms Mountfield contends that Mr. Roy does not say in terms that the Council looked at the POPPI statistics at the time of making the decision, as opposed to after the challenge was made. Mr. Roy has made it clear in a witness statement that prior to making his decision on these points, he did consider that report, and I have no reason not to accept this evidence.

In any event, the POPPI figures relied on by Ms Mountfield suggest that the likely increase in demand in Leicester was 11%, which was less than the Claimant’s figure of 24.4%. Mr Roy has observed that even if the POPPI figures for Leicester were used, there would be sufficient provision in Leicester.

Ms Mountfield contends that Councillor Patel, who made the October Decision, does not suggest anywhere in her statement that she was aware of these POPPI figures. She simply says that she asked officers to confirm that there would be suitable places available for Asian residents in Herrick Lodge in Asian Lifestyle homes locally. There is clear authority that the assessment of how much and what information should be included in a report to enable it to serve its function is itself for the officers exercising their own judgment (see R v Mendip DC ex p Fabre (2000) 80 P& CR500, 509 per Sullivan J and R (National Association of Health Stores) v Department of Health [2005] EWCA Civ 154 [69] per Sedley LJ). I cannot understand why a report should contain and refer to material which the officers in their professional opinion consider not to have any use in determining the matter before the decision-maker. The maker of a decision, like the October Decision, is under no duty to set out all material, which he or she did not consider to be relevant.

The Council explained in its letter of 10 March 2014 in reply to the letter before action that the basis of its figure of 4.5 % as its estimate in the growth in notional demand for residential care was derived from what is described as the “respected Laing & Buisson Care of Elderly People UK Market Survey 2010”. Laing & Buisson are healthcare market intelligence analysts. The Claimant’s case consists of relying on statements in its press releases because Laing & Buisson’s full surveys are expensive costing more than £700 each while their press releases are free. The Council did not consider these press releases before making the October Decision, and so the issue is whether the Council acted irrationally or in a Wednesbury unreasonable manner in failing to obtain this information in the press releases, but that it instead relied on the BUPA report summarising the findings in Laing & Buisson’s 2010 survey.

I agree with Mr. Sharland that there is no basis for concluding that the Council acted in that irrational or unreasonable way by failing to obtain this information bearing in mind that none of the press releases contained Laing & Buisson’s predictions for demand for residential care over a 10-year period or indeed for growth up till 2020. In fact, they merely explained what happened over a previous one-year period in the form of a historical snapshot, rather than what the Council was concerned with which was a prediction of demand and supply until 2020. This was not material the Council was required to discover and use and it certainly was not irrational or unreasonable not to do so.

Ms Mountfield contends that the publicly available press release for the Laing & Buisson 2010 survey shows that the Council's assertion was based on a misreading of that survey because the press release, which accompanied it, explained that the 4.4% figure was an estimate of growth in private and voluntary homes only, and only for the five years from 2010 to 2015. The Council was not considering the growth in the private and in the voluntary sector, but total demand, which included the public sector. The estimated growth figure of 4.4% over five years is an accurate record of Laing & Buisson’s prediction and it is not inconsistent with the total growth of 4.5% over ten years, because Laing & Buisson predicted as 50% decline in public sector provision. There is nothing irrational about this.

The Claimant also relies on the press release for the next 2011/2012 edition of the Laing & Buisson survey, which was published 5 January 2012 and which was 21 months before the October Decision was made. It showed, according to the Claimant’s case, that by January 2012 and well before the October Decision was taken, that the previous estimate had been proved wrong. That was, according to the Claimant, because the number of elderly or physically disabled people living in all care homes in the UK had risen by 1.5% (from 414,500 to 421,000) in 2011 alone. Laing & Buisson gave that figure under the headline “Demand for care home beds rises in run up to social care funding revamp”.

I am unable to agree because the press release explained that this increase of 6,500 places was the increase in capacity and it was also pointed out that “this was the third year in succession in which capacity has edged upwards”. It was also stated that the number of places occupied was “up 3000 over April 2010”, but this was half the increase in capacity of 6,500 places. This is supportive of the Council’s case of the widening gap between the supply of places and the demand for them.

The press release for the next 2012/13 survey, which was published on 15 January 2013, showed that in 2012 there had been growth of 2.2% in the population of all residential settings, which was the total of independent and private supply and the Claimant attaches importance to that increase simply in one year alone.

Insofar as the Claimant seeks to suggest that it was irrational or Wednesbury unreasonable not to consider that this figure for just one year in a press release enabled a reliable prediction to be made for a period of 10 years, I am unable to agree because the level of demand over a period of one year in a press release is not a sound basis for predicting growth over a period of 10 years for the simple reason that the figures for growth do not grow or increase in a consistent or in a steady way. Mr Sharland shows this convincingly by looking at the press releases for the period from 2011 to 2013. In the period from 2011 to 2012, there was an increase from 422,000 to 432,000 places in the appropriate press release, while in 2012 to 2013 there was a decline from 432,000 to 426,000 places in the next press release. This means that in the period of two years, there was an increase of 4,000 places from 422,000 to 426,000 in the press releases, which was equivalent to an increase of about 1% over a two-year period; this is very similar to Laing & Buisson’s prediction of 4.5 % growth over 10 years. I agree with Mr Sharland that it cannot in those circumstances have been irrational or unreasonable for the Council not to have made inquiries about a particular year’s figures in the light of the obvious problems of using those figures in isolation for estimating the likely growth over a period of ten years.

By the same token, I have concluded that the Council did not act irrationally in not considering these press releases before making its decision and in failing to seek out that information and consider it. As I have explained, demand may go up one year and then go down the next year.

The Laing & Buisson figures were set out in the BUPA report “Funding Adult Social Care over the next decade - Who cares” released in 2011 and this shows that “the demand for places in care homes (nursing and residential) for elderly and physically disabled people in the independent and public sector projections for 2011-2020”. The Council believes that this was the most recent prediction for growth over the period up till 2020, because none of the press releases now relied on by the Claimant do so.

The important figures are that in the period between 2011 and 2020 the demand satisfied in independent sector homes would increase from 385,209 to 419,621, while the number satisfied in public sector (Local authorities and NHS long stay beds) would be reduced from 33,252 in 2011 to a projected figure of 17,441 in 2020. The 4.5% predicted increase in demand was for the total of those two categories in a table entitled “demand for places in care homes (nursing and residential) for elderly and physically disabled people in the independent and public sector” the total demand for both categories going up from 418, 461 in 2011 to 437,062 in 2020. Indeed the report to Councillor Patel made reference to this 4.5% increase which takes account of Laing & Buisson’s prediction of a 50% decline in the public sector provision. I should add that the Lang & Buisson figures predicted a 4.4% increase in private care home provision from 2010 to 2015, but this is not inconsistent with the figure of 4.5% for the period 2010 to 2020 because Lang & Buisson predicted a decline in beds provided by the public sector from 2010 to 2015 of about 25 % and from 2010 to 2020 of 47%.

Based on the matters to which I have referred, the Council was entitled to conclude that there would be a 4.5% increase in total demand for residential care home provision because that figure is supported by the material which I have just set out. The Council was quite entitled to rely on it as in Mr. Roy’s words:

“Laing & Buisson’s approach to forecasting...is more robust than the simplistic statistical approach adopted by the ONS. We had comfort in knowing that the growth in privately operated residential care beds and Extracare housing would comfortably exceed both the 4.5% indicated by Laing & Buisson and the 151 predicted increases in demand in beds within Leicester as predicted by POPPI”

There is nothing irrational or Wednesbury unreasonable in this approach especially as the Laing & Buisson report had the imprimatur of being adopted by BUPA and there was nothing to show that it was or might have been flawed. Indeed there was nothing irrational or Wednesbury unreasonable on the Council’s part in not taking these figures at face value. A second reason is that in any event, the criticisms of Laing & Buisson’s approach falls a long way short of showing that the case of the Claimant on the predicted increase was in the words of Carnwath LJ in E (supra) as “‘established’, in the sense that it was uncontentious and objectively verifiable”.

Ms Mountfield submits that the Council should have considered, but did not consider, its own data on vacancies in Leicester (public and private), which showed a decline in vacancies despite an increase of 125 bed spaces in the independent sector over the three years until October 2013. (Executive Decision Report paragraph 3.8). There is also evidence in the witness statement of Ms Chandarana, the granddaughter of the Claimant, which is that in January 2014 which was three months after the October Decision, the level of vacancies in the private sector had declined to zero as at July 2014. This figure was not available at the time of the October Decision and so it does not assist in considering whether the approach of the Council three months earlier was irrational or Wednesbury unreasonable.

In any event, this assertion is contradicted by the evidence of Ms Rees, who has explained that for the week ending 14 February 2014, there were 11 vacancies in Asian Lifestyle homes and 146 vacancies in the general older person’s residential homes. She explained that the vacancy rates fluctuate. There is no reason why I should not accept this evidence.

As I have explained, the Courts will only strike down a decision on Tameside grounds if, as was explained in the Plantagenet Alliance case, “no reasonable authority could have been satisfied on the basis of the inquiries made that it possessed the information necessary for its decision” (per Neill LJ in R (Bayani) v. Kensington and Chelsea Royal LBC (1990) 22 HLR 406) or if no reasonable council possessed of that material could suppose that the inquiries they had made were sufficient (per Schiemann J in R (Costello) v Nottingham City Council (1989) 21 HLR 301; cited with approval by Laws LJ in (R (Khatun) v Newham LBC (supra) at paragraph [35]). I know that the Claimant’s granddaughter has suggested that the Council could have made further inquiries.

In my view, the case for the Claimant fails as the conduct of the Council both in relation to the material before it and the inquiries that it is alleged that it should have made fall a long way short of reaching the threshold for quashing the decision on Tameside grounds or on any other public law grounds.

Thus I reject this head of complaint, especially as the Council was entitled to rely on the Laing & Buisson analysis, which was contained within a report from BUPA entitled “Funding Adult Social Care over the next decades- Who Cares” released in 2011. Mr Roy has explained that BUPA is a national organisation which owns more than 100 elderly care homes and that the report from Laing & Buisson is based on actual information drawn from both the public and private sectors by means of annual returns of occupied beds as it showed a steady decrease in residential demand from 503,333 beds in 1996 to 417.885 in 2010 with a projected forward increase to 437,062 in 2020 an increase of 4.5%. As Mr Roy points out, these figures appeared to mirror the position in Leicester with a steady private sector and a falling demand for public sector beds. Indeed, a table produced by Mr Roy shows the falling demand for public sector beds in Leicester between 2003 and 2012/3. Indeed as I have explained in paragraphs 63 to 65above, Mr. Roy explains cogently why the Council was entitled not to rely on the POPPI figure and it certainly was not irrational or unreasonable not to do so.

I should mention that the Claimant accepts that although there is no statutory duty of enquiry into future levels of demand under s21 provisions, it is intrinsic in its duty under s46 NHSCCA (which is set out in the Appendix to this judgment) for it to plan community care needs and reliance is placed on the LAC circular. In particular, Ms Mountfield attaches importance to the fact that “the Government will expect local authorities to retain the ability to act as a direct service provider if other forms of service provision are unforthcoming or unsuitable”. That is “particularly important in services for people with high levels of dependency”.

The Council accepted this obligation and the Claimant complains that the Council failed to carry out adequate inquiries. I cannot accept this contention because, as I have explained, the Council acting through Councillor Patel, Ms Rees and Mr. Roy carried out adequate inquiries and found out that there were adequate and stable provisions available essentially through the Asian Lifestyle homes.There is no evidence that in the words of the Circular that “other forms of service provision are unforthcoming or unsuitable”. The Council was entitled to reach the decision. It did not have to make further inquiries relating to respite or temporary care as there is no evidence of under-provision of such facilities. I should add that the claim was based solely on permanent residents and the Claimant only raised the claim in respect of temporary residents after the Council had served its evidence and so it was made too late. In any event, Ms Rees has shown that there is no shortage of available beds for such temporary placements. Nothing has been put forward to show that the Council acted irrationally or in a Wednesbury unreasonable way.

Ms Mountfield points out that elderly people from all communities who need residential care under s21 NAA are likely to desire care, which corresponds appropriately and sensitively to their community and to their cultural needs and which enables them to be as close as possible to sources of family and community support. Against that background, she submits that there was a sharp upward trend in the elderly population of British Asians or Asians aged over 60 in Leicester increasing by 18.6% between June 2001 and June 2009, and her case is that the Council were not aware of this.

The Council’s own information showed that the Asian and Asian British population of Leicester comprised 20% of its population, who were over 60 years old, but that 92% of the residents of Leicester’s care homes are White British with only 6% from Asian/Asian British backgrounds. Ms Mountfield says that the Council could not without further research assume that this statistically significant under-representation of Asian and Asian British people in Leicester in residential care homes was partly or wholly due to unconstrained preferences.

There was some research in a 2003 academic study by the University of Leicester, which showed that the fear that culturally sensitive care is not available close to home discourages people from an Asian background from seeking residential care.

It is said by Ms Mountfield that Herrick Lodge is, and was, the only council-run provision identified by the Council and by the Care Quality Commission in its most recent report in 2003 as providing specialist services for Asian and Asian British residents. Therefore, the loss of 40 potential places for such residents (which would include the unused upper floor at Herrick Lodge which has not been brought into line with fire risk assessments as I explained in paragraph 10 above) represented a disproportionate loss of places, especially as it was a specialist provision for the Asian population, which already amounts to only 8.4% of the total places available in the independent sector.

Ms Mountfield also complains that there are no contemporaneous records of any enquiries having been made about the availability of Asian Lifestyle facilities in the appropriate part of Leicester before theOctober Decisionwas taken. Councillor Patel says she looked at what was available at the Asian Lifestyle homes, but she does not suggest she made her own enquiries about likely future levels of availability. Nevertheless, Ms Rees states that she did so herself and I have no reason not to accept this evidence.

The Claimant’s case is that this constituted a further breach of the Tameside duty of inquiry into the obviously relevant factor of the kind of placements for which there will be and would be future demand. Such inquiry ought to have been triggered first, because of the under-representation of Asian and British Asians in residential care, and second, because it is not clear to what extent this is a consequence of free choice and cultural preference and how far it is a consequence of a perception or a fact that there is a dearth of culturally sensitive care close to centres of the Asian population, Asian community facilities and family.

In other words, the case for the Claimant is that in the absence of the appropriate and necessary information, the Council could not make a rational decision as to how to proceed. It is accepted that there is no specific statutory duty of enquiry into future levels of demand for the provision under s 21 NAA.

Mr Sharland disputes many of these contentions and he submits that contrary to the Claimant’s case, the evidence about the upward trend in British Asian and Asian people aged over 60 years of age in Leicester does not mean that there will be an increase in demand for places in residential home for four reasons.

First, those going into such homes are not on average just over 60 years of age as Ms Mountfield implies, because the usual group of occupants in Leicester’s residential homes are aged over 85 and they remain there for 18 months on average with the average age of the residents being 89 at the start of 2014. So the upward trend of the over 60s in the British Asian and Asian population in Leicester is not of great significance, because it does not provide much light on the present and future level of the demand for places in residential homes for the British Asian and Asian population in Leicester. In any event, it does not show that either of the assertions (i.e. first, that there is an increasing demand for residential places for the British Asian and Asian population in Leicesteror second, that the Asian population is under represented in Leicester’s care homes) is, in the words of the E case (supra), “‘established’ in the sense that it was uncontentious and objectively verifiable”.

Second, there is ample evidence that Asian and Asian British people chose for family reasons not to go into residential care. I inadvertently forgot to include in the draft judgment circulated to Counsel that Councillor Patel, who (as I have explained in paragraph 33) has great knowledge of the Asian community in Leicester, stated in her evidence that any under-representation was due to the “strong cultural preference within my community for elderly persons to be cared for within the community rather than any dearth or perception of dearth) of culturally appropriate provisions”. which shows that British Asians prefer Homecare services and Extracare services which allow them to remain in the community rather go into homes and this is borne out by the vacancies in Asian Lifestyle homes and the vacancies at Herrick Lodge which meant that the Council did not do the fire safety work which would have allowed the Council to let more accommodation there if there had been sufficient demand. Indeed, the findings of the University survey “In our blood”: Respite Services, Family Care & Asian Communities in Leicester’s evidence supports the Council’s statistical evidence that elderly Asian people prefer to be cared for by their families with the help of the Council rather than in residential homes. The findings of the University survey, which the Council was entitled to and did accept, stated that:

“Our research suggested that the emotional disposition of many elders interviewed could, in part, be understood in the terms of the distinctive culture of aging that had been predominant in the societies in which they spent their early formative years. This involved a high degree of interdependence between family members and exchange of personal care across the generations. Most elders interviewed had been carers themselves when young, usually in the Indian Sub-Continent or East Africa. They regarded it as both morally appropriate and the natural course of events that they, in turn, would receive support in old age. This was not merely an instrumental arrangement but carried moral, ethical and cultural significance- it was an aspect of their ethnic identity. As one respondent remarked ‘It is our tradition to look after elders- it is in our blood’”.

Third, there is clear evidence that if Asian and Asian British people could not or who did not want to stay in their own homes, they might well wish to live in Asian Lifestyle homes that meet their cultural, religious, dietary and cultural needs rather than living in residential homes. As I have explained, there is evidence that the Council had established that there were vacancies in those homes before making the October Decision. Some new ones had opened in the two years before that Decision was made and others were due to open later. The Claimant’s case is that these new homes were not in fact “new”, but the critical, if not crucial, fact is that there was adequate accommodation in Asian Lifestyle homes to accommodate the Claimant. In addition, in the October Decision it was stated that the Council would invest in Extracare housing to increase the number of supported self-contained flats available for older people in Leicester and that reflected the increasing demand for this type of accommodation.

Fourth, I should add that the 2003 academic survey referred to in paragraph 91 above does not establish that fear that culturally sensitive care discourages “Asian heritage families from seeking residential care” as it was solely concerned with respite care and not with permanent placements in residential care pursuant to s 21 NAA1948. In any event, it was based on old material compiled between 1999 and 2001, which was more than 12 years before the October Decision.

Pulling these threads together, the position that emerges is that the Council was entitled to conclude first, that there was no evidence that Asians or British Asians were under-represented in residential care provisions in Leicester, and second, that a substantial number of Asians or British Asians would prefer rather than to go into residential care to remain with their families or to go into Extracare housing or into Asian Lifestyle homes. No cogent evidence has been adduced to undermine this conclusion.

In dealing with the contention that the Council should have made further inquiries concerning the nature of demand for residential accommodation, as I have explained, the established principle is that the court should establish what material was before the authority and that it will only strike down a decision by the authority not to make further inquiries if no reasonable council possessed of that material held by the Council could suppose that the inquiries they had made were sufficient (per Schiemann J in R (Costello) v Nottingham City Council (1989) 21 HLR 301; cited with approval by Laws LJ in (R (Khatun) v Newham LBC (supra) at paragraph [35]). In this case, as I have explained in paragraphs 39 to 41 above, the Council and through it Councilor Patel had much information before it when it made the October Decision relating first, to the availability of accommodation suitable for Asians and British Asian, and second, to the nature of the demand for residential accommodation. I cannot accept that this is a case in which no reasonable Council possessed of that material could suppose that the inquiries, which they had made, were insufficient.

For those reasons, this challenge must be rejected.

Section 149 of EA 2010 provides (in so far as is material and with emphasis added) that:

“(1)

A public authority must, in the exercise of its functions, have due regard to the need to -

(a)

eliminate discrimination, harassment, victimization and any other conduct that is prohibited by or under this Act;

(b)

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

(c)

foster good relations between persons who share a relevant protected characteristic and persons who do not share it.

…….

(3)

Having due regard to the need to advance equality of opportunity between persons who share a relevant protected characteristic and persons who do not share it involves having due regard, in particular, to the need to-

(a)

remove or minimize disadvantages suffered by persons who share a relevant protected characteristic that are connected to that characteristic;

(b)

take steps to meet the needs of persons who share a relevant protected characteristic that are different from the needs of persons who do not share it;

(c)

encourage persons who share a relevant protected characteristic to participate in public life or in any other activity in which participation by such persons is disproportionately low.

…..

(5)

Having due regard to the need to foster good relations between persons who share a relevant protected characteristic and persons who do not share it involves having due regard, in particular, to the need to -

(a)

tackle prejudice, and

(b)

promote understanding”.

An important issue in this case, as in many previous cases, is to determine what a decision-maker must do to comply with the requirements which stipulate that he or she must show “due regard” to the matters set out in s149EA. It is of great importance in determining this issue to appreciate that:

A major dispute between the parties is how these and other decided principles should apply in this case and, in particular what Dyson LJ described as the ”vital” distinction which is that the duty on the decision- maker is not “to achieve a result” but “to have due regard” to the statutory objectives. Those other principles were summarised by McCombe LJ in his judgment in R (Bracking) v Secretary of State for Work and Pensions [2013] EWCA Civ 1345[26] in which he stated that:

“(1)

As stated by Arden LJ in R (Elias) v Secretary of State for Defence [2006] 1 WLR 3213; [2006] EWCA 1293at [274], equality duties are an integral and important part of the mechanisms for ensuring the fulfilment of the aims of anti-discrimination legislation.

(2)

An important evidential element in the demonstration of the discharge of the duty is the recording of the steps taken by the decision maker in seeking to meet the statutory requirements: R (BAPIO Action Ltd) v Secretary of State for the Home Department 2007] EWHC 199 (QB) (Stanley Burnton J (as he then was)).

(3)

The relevant duty is upon the Minister or other decision maker personally. What matters is what he or she took into account and what he or she knew. Thus, the Minister or decision maker cannot be taken to know what his or her officials know or what may have been in the minds of officials in proffering their advice: R (National Association of Health Stores) v Department of Health [2005] EWHC Civ 154 [26 – 27] per Sedley LJ.

(4)

A Minister must assess the risk and extent of any adverse impact and the ways in which such risk may be eliminated before the adoption of a proposed policy and not merely as a "rearguard action", following a concluded decision: per Moses LJ, sitting as a Judge of the Administrative Court, in Kaur & Shah v LB Ealing [2008] EWHC 2062 (Admin) [at [23 – 24].

(5)

These and other points were reviewed by Aikens LJ, giving the judgment of the Divisional Court, in R (Brown) v Secretary of State for Work and Pensions [2008] EWHC 3158 (Admin). as follows:

i)

The public authority decision maker must be aware of the duty to have "due regard" to the relevant matters;

ii)

The duty must be fulfilled before and at the time when a particular policy is being considered;

iii)

The duty must be "exercised in substance, with rigour, and with an open mind". It is not a question of "ticking boxes"; while there is no duty to make express reference to the regard paid to the relevant duty, reference to it and to the relevant criteria reduces the scope for argument;

iv)

The duty is non-delegable; and

v)

Is a continuing one.

vi)

It is good practice for a decision maker to keep records demonstrating consideration of the duty.

(6)

"[G]eneral regard to issues of equality is not the same as having specific regard, by way of conscious approach to the statutory criteria." (per Davis J (as he then was) in R (Meany) v Harlow DC [2009] EWHC 559 (Admin)[84], approved in this court in R (Bailey) v Brent LBC [2011] EWCA Civ 1586 [74-75].)

(7)

Officials reporting to or advising Ministers/other public authority decision makers, on matters material to the discharge of the duty, must not merely tell the Minister/decision maker what he/she wants to hear but they have to be "rigorous in both enquiring and reporting to them": R (Domb) v Hammersmith & Fulham LBC [2009] EWCA Civ 941 [79] per Sedley LJ.

(8)

Finally, and with respect, it is I think, helpful to recall passages from the judgment of my Lord, Elias LJ, in R (Hurley & Moore) v Secretary of State for Business, Innovation and Skills [2102] EWHC 201 (Admin) (Divisional Court) as follows:

… (ii) At paragraphs [89-90]

"[89] It is also alleged that the PSED in this case involves a duty of inquiry. The submission is that the combination of the principles in Secretary of State for Education and Science v Tameside Metropolitan Borough Council 1977] AC 1014and the duty of due regard under the statute requires public authorities to be properly informed before taking a decision. If the relevant material is not available, there will be a duty to acquire it and this will frequently mean than some further consultation with appropriate groups is required. Ms Mountfield referred to the following passage from the judgment of Aikens LJ in Brown (para [85]):

'….the public authority concerned will, in our view, have 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 persons' disabilities in the context of the particular function under consideration.'

[90] I respectfully agree…….."

As I have explained, it is clear that an important evidential element in the demonstration of the discharge of the duty is the recording of the steps taken by the decision-maker in seeking to meet the statutory requirements of the PSED: R (BAPIO Action Ltd) v Secretary of State for the Home Department [2007] EWHC 199 (QB) and approved in Bracking [26] (supra).

The basis of this approach was explained in Brown (supra) [96] by Aikens LJ, who observed that:

“Sixthly, it is good practice for those exercising public functions in public authorities to keep an adequate record showing that they had actually considered their disability equality duties and pondered relevant questions. Proper record - keeping encourages transparency and will discipline those carrying out the relevant function to undertake their disability equality duties conscientiously. If records are not kept it may make it more difficult, evidentially, for a public authority to persuade a court that it has fulfilled the duty imposed by section 49A(1)”

Although it was a good practice for the decision-maker to record precisely what steps he or she had taken, in the case of the October Decision, the decision-maker, Councillor Patel, did not do so. Nevertheless, she has made two sworn witness statements explaining in some detail the steps, which she took which were relevant to her s149 EA duties. In addition, there is documentation which shows that the PSED was drawn to Councillor Patel’s attention with the EIA attached to the officer’s report. She gave a detailed account of her investigations and of her reasoning. It has not been contended, let alone shown, that any of the contents of her witness statements are not factually accurate or not comprehensive in any material respect, and I propose to accept them as correct.

The submissions for the Claimant are that:

It is common ground that the protected characteristic, which required consideration, was that the Claimant was a British Asian or an Asian as were the other residents at Herrick Lodge. It is also accepted correctly that the only kind of discrimination that has to be considered in this case is indirect discrimination, as there is no suggestion of direct discrimination or of victimisation or of harassment against the Claimant. Indirect discrimination arises where a provision, criterion, practice “puts, or would put [a British Asian or an Asian] at a particular disadvantage when compared with persons with those [who are not Asians or British Asians]” and it cannot be shown by the decision maker to be a proportionate means of achieving a legitimate aim (s19 EA).

Ms Mountfield explains first that the matters to which regard is “due” in relation to PSED will depend on first, the function performed, and second, on the seriousness of the impact of the decision in question. She points out that removing an old person from his or her established home can impose very great stress and grave adverse psychological consequences for that person. Ms Mountfield says this is especially so if that old person cannot receive care, which meets his or her dietary, cultural and linguistic, needs and is separated from members of his or her community and friends. This, according to Ms Mountfield, is the background to each of these claims for breach of the PSED owed by the Council to the Claimant.

Ms Mountfield submits that the Council ought to have been alert to the possibility of indirect discrimination because the consultation responses noted that most residents of Herrick Lodge did not want to move out of that place as those of British Asian origin had felt that such a move would place them at a particular disadvantage. Against that background, she contendsthat the decision-maker, who in this case was Councillor Patel, ought to have asked if and how the proposal, which led to the October Decision, constituted unlawful discrimination against British Asian residents. That, she said, entailed asking whether the policy of ceasing to provide residential homes directly and of closing those homes which were not capable of being sold as going concerns imposed a particular disadvantage on British Asians, and, if so, what was the disadvantage and whether it could be proportionately justified.

Ms Mountfield’s contention is that if the answer to any of those questions is in the affirmative, the decision-maker then had to ask what the disadvantages were, and then whether it was proportionately justified in the sense that its aims or objectives corresponded to a real need and that the means used were appropriate and necessary to achieving that aim.

It is said by Ms Mountfield that that the minimum inquiry in which the Council should have engaged was to have acted in two different ways. First, she submits that the Council should have carried out a quantitive inquiry by considering the statistics as to the proportion of British Asians affected by reference to the detriment of being forcibly removed, rather than simply the number of people in directly-supplied s21 accommodation many of whom could remain put if the homes were sold as going concerns. Second, Ms Mountfield submits that the Council should have made qualitative enquiries by asking affected people what would matter most to them about alternative accommodation if they were to move and then to see if it was available. This would entail not only considering whether some “Asian style” homes were available, but also additionally asking residents about what they cared about in relation to proximity to friends or family and having access to particular food and particular religious facilities as well to staff who speak their language.

Ms Mountfield contended that the Council failed to comply with its duty as it did not identify the disproportionate quantative effect of closures on British Asian residents as it assumed that that the relevant proportion of British Asians was 7/170. This was the proportion of all British Asian residents to all the residents that would be forced to move from their homes because they were all being closed in Phase One. This assumption, according to Ms Mountfield, is wrong, as the Council ought to have appreciated that the effect was of 7 of the 36 people being forced to move in Phase One i.e. 19.4% and 40 of the 109 beds lost through Phase One were located at Herrick Lodge. This meant that 36% of the total loss of capacity was of permanent and or respite provisions which met the cultural needs of British Asian people. I do not agree with this approach as it fails to appreciate that Phase One of the October Decision was not merely to close Herrick Lodge but also to close or sell eight homes, which would lead to 170 long-term residents moving. Of those, 90% were White British and only 7 (including the Claimant) were Asians which was about 3.5%; that cannot mean that the October Decision had a disproportionate effect on members of the “substantial South Asian minority” in Leicester as contended by the Claimant, but even if that was wrong, the Claimant cannot succeed for the reasons which I will explain. In addition, as I have explained in paragraph 10 above, the top floor of Herrick Lodge had not been used as it required fire prevention work which had not been carried out not because of the cost, but because of the lack of demand for accommodation at Herrick Lodge but, as I have observed, the fear of it closing might have been a contributory factor for the lack of demand from prospective residents.

It is also said by Ms Mountfield that the Council failed in its PSED, as it did not conduct an evidenced-based inquiry into any disproportionate qualitative effect of the change. This was, she said, necessary because if places in culturally and linguistically appropriate care were not available or not available near their families, the disruption of the move and the possible social isolation would be greater for members of a minority community rather than for a member of the majority community. She accepts that Councillor Patel states that she “assured” herself that some homes had suitable “Asian style” facilities were available “locally”, but not how locally as there were only 2 places at the homes in Belgrave in Latimer wards. She also raises the issue of whether there would be places available for those dislocated in such homes within a suitable distance from their homes and family or with their familiar carers.

Another complaint made by Ms Mountfield was that the Council did not consider alternatives such as using culturally appropriate provisions at Herrick Lodge for temporary or respite care. The Claimant’s case is that the British Asians would have been disparately adversely affected, but that the Council neither failed to identify that adverse effect nor was its response proportionate. In consequence, the Council did not show due regard to the need to eliminate unlawful indirect discrimination.

The Council’s case is that it gave “due regard” to the need to avoid unlawful discrimination, as it carried out extensive consultation to gather information about the likely impact of the decision, which is not the subject of any criticism by the Claimants and to comply with its PSED. Mr Sharland contends correctly first, that the October Decision was not a decision to close Herrick Lodge because the decision was actually “to close and sell the Council’s Eight Elderly Persons Homes, subject to the phased approach”, and second, that Phase One of this decision was to close Herrick Lodge and two other specified homes and move the residents to other residential homes” and “market for sale” two other specified homes. In consequence, as I have explained, the October Decision would affect 170 long term residents of whom 90% were British and only 7 were Asian which amounted to over 3.5%. It must follow that the Council’s decision did not have a disproportionate effect on members of the substantial South Asian minority in Leicester. As I will explain, even if my conclusion on this point is wrong and Ms Mountfield is correct in her approach, then on these percentages, the case of the Claimant based on breaches by the Council of its PSED will still fail as there is much evidence that the Council did consider the effects of the closure of Herrick Lodge on the Asian residents and it showed due regard to its statutory duties.

The Council carried out a detailed investigation, which included a comprehensive consultation programme, which has not been criticised. It took place initially between 14 March 2011 and 14 June 2011 when there was a proposal affecting the eight residential homes which were the subject of the decision under challenge, and I have set out the main details of the consultation process, which is not the subject of criticism in paragraphs 13ff above.

Ms Mountfield attaches importance to the fact that the October Decision did not specifically refer to the PSED, but that does not mean that it has not been complied with. Dyson LJ explained in Baker (supra) [36] that he did “not accept that the failure of an inspector to make explicit reference to [a statutory provision which set out a duty very similar to PSED] is determinative of the question whether he has performed his duty under the statute. So to hold would be to sacrifice substance to form”. I respectfully agree, and so the issue is whether there was compliance with PSED in substance and that is the issue to which I now turn.

I am unable to agree that the Council failed to show “due regard to the need to avoid discrimination” when making the October Decision for the reasons which I will now set out in no particular order of importance and which individually and cumulatively lead me to that conclusion.

First, Councillor Patel appreciated that the possible unlawful indirect discrimination which would have arisen if the Claimant was to be moved from Herrick Lodge. These were the matters raised when she spoke to the Asian/British Asian residents, including the Claimant, at Herrick Lodge before making the October Decision when she asked what was important to them in deciding where they wanted to live. Councillor Patel identified correctly the specific equality question raised by s149 (1)(a) EA, namely that they required accommodation in places where their culinary, religious and linguistic needs would be met and where they would be within easy travelling distance of their friends and relatives. She then sought to see how those issues could be met so as to eliminate discrimination, and she thereby showed “due regard” for them.

Councillor Patel’s evidence and the inquiries made by her and others on her behalf satisfy me that she focussed properly on the statutory criteria and put them in the balance before making the October Decision. Indeed this was the purpose of her attempts to ensure there were places available in homes in the independent sector which satisfied the culinary and religious demands as well as the linguistic needs of British Asians/Asian residents of Herrick Lodge and which were within easy travelling distance of their friends and relatives. The Council completed an EIA. The importance of considering and satisfying those needs was to ensure that there was due regard to eliminate unlawful discrimination against the Claimant.

In other words, Councillor Patel had shown a focussed awareness of the statutory duty imposed on her and she had done what Pill LJ had explained what was required of the decision-maker and that was to analyse the relevant material with the specific statutory considerations in mind (Harris v London Borough of Haringey [2011] PTSR 931 [72]).

As Elias LJ had said in Hurley & Moore (supra) [78], in a passage cited with approval in Bracking (supra) [26], the duty of the Court in cases such as the present one isto “ensure that there has been a proper and conscientious focus on the statutory criteria but if that is done, the court cannot interfere with the decision simply because it would have given greater weight to the equality implications of the decision than did the decision maker”. In my opinion, Councillor Patel had properly assessed the risk of unlawful indirect discrimination and how to combat those risks and she had therefore shown “due regard to the need to eliminate [unlawful] discrimination”. To my mind, this is a clear answer to the Claimant’s case. After all, Councillor Patel was investigating the problems that the Claimant and her fellow Asians would encounter as Asians on leaving Herrick Lodge before then making her inquiries about finding places which would solve or mitigate those problems and thereby meet the religious, cultural, culinary and linguistic needs of the Claimant and her fellow Asians in Herrick Lodge. It is difficult to see what Councillor Patel was doing by carrying out those investigations if she was not showing “due regard to the need to eliminate [unlawful] discrimination”.

Second,the question of the proportionality of the proposed decision to close Herrick Lodge was considered because, as I have explained, the Council considered and made inquiries to see if the closure of Herrick Lodge could be avoided by selling it, but those efforts had not been successful. There has been no criticism of those efforts. In addition, there was evidence that keeping Herrick Lodge open was not an available option due to declining numbers and the cost of keeping it open as compared with the costs of placing people like the Claimant in the independent sector, as I explained in paragraph 30 above.

Third, where as in the present case, the decision-maker had properly considered the applicability of her section 149(1)(a) EA duty, the Courts will not interfere with a decision to which the PSED applies just because they would have given one or other of the factors greater weight than the decision-maker had done. Indeed, Elias LJ in a passage in Hurley and Moore (supra) [77], which was cited with approval by McCombe LJ in Bracking (supra)[26], stated that:

“Contrary to a submission advanced by Ms Mountfield, I do not accept that this means that it is for the court to determine whether appropriate weight has been given to the duty. Provided the court is satisfied that there has been a rigorous consideration of the duty, so that there is a proper appreciation of the potential impact of the decision on equality objectives and the desirability of promoting them, then as Dyson LJ in Baker (para [34]) made clear, it is for the decision maker to decide how much weight should be given to the various factors informing the decision.”

In the next paragraph of his judgment in Hurley and Moore (supra) in another passage which was also cited approval by McCombe LJ in Bracking (supra)[26], Elias LJ concluded that if that submission of Counsel was correct and the Courts could question the weight given or not given by a decision-maker to any specific factor:

“…would allow unelected judges to review on substantive merits grounds almost all aspects of public decision making."

This is what the Claimant is seeking to do because in this case, Councillor Patel considered the equality implications which were the culinary, religious, cultural and linguistic requirements of the Claimant and the other Asian residents at Herrick Lodge as well as being within easy travelling distance of their relatives and she set about ascertaining where they could be satisfied. As I have explained, she considered that she was successful in doing this and in so doing, she certainly showed “due regard” to the need to avoid discrimination. Indeed, the scrutiny by the Courts is only permitted on irrationality grounds (R (D and S) v Manchester City Council [2012] EWHC11 [51-2] per Ryder J (as he then was). The mere fact that the Claimant disagrees and contends that the Council did not carry out the qualitative or quantative exercises advocated by Ms Mountfield does not indicate, let alone show, that the October Decision was wrong or can be impugned, where as here Councillor Patel did not act irrationally. With respect, her argument fails to appreciate what Dyson LJ described as the vital distinction between the need to show “due regard” and the “duty to achieve a result namely to eliminate unlawful racial discrimination”.

Fourth, I cannot accept the Claimant’s contention that the October Decision can be impugned because further inquiries were required before the Council could be regarded as having satisfied its PSED. The further qualitative and especially quantative inquiries advocated by Ms Mountfield might well have been appropriate if the decision maker had the duty to eliminate discrimination and not merely the duty to have due regard to the need to eliminate discrimination. It is important to bear in mind the limited circumstances in which such decisions can be challenged in the courts not least because the decision maker does not have the duty to ensure that he or she eliminates discrimination or to make the inquiries as to what such a duty would or might require. Indeed Dyson LJ made that very clear in the passage in Baker, which I have quoted in paragraph 105(a) above.

Indeed, the Claimant is, in fact, asking the Court to micro-manage the issue of deciding whether there has been compliance with the Council’s PSED but this is not permissible, because in the words of Elias LJ (with emphasis added) in R (Greenwich Community Law Centre v Greenwich LBC [2012] EWCA Civ 496 [30], a Court must:

“ask whether as a matter of substance there has been compliance; it is not a tick box exercise. At the same time the courts must ensure that they do not micro-manage the exercise”.

The Claimant’s case falls a long way short of reaching the irrationality threshold. After all, it is clear that the PSED is not a back door by which challenges to the factual merits of the decision may be made (R (Copson) v Dorset Health Care [2013] EWHC 732 [40]).Further, as I have explained McCombe LJ has quoted and approved the statement of Elias LJ in Hurley & Moore [77] that:

“it is for the decision maker to decide how much weight should be given to the various factors informing the decision”.

This shows the limits of the court’s duties and powers in relation to when considering the kind of challenge made in the present case. This approach was also explained by Davis LJ when he observed that :

“Nevertheless, in a case where the council was fully appraised of its duty under s.149 and had the benefit of a most careful Report and EIA, I consider that an air of unreality has descended over this particular line of attack. Councils cannot be expected to speculate on or to investigate or to explore such matters ad infinitum; nor can they be expected to apply, indeed they are to be discouraged from applying, the degree of forensic analysis for the purpose of an EIA and of consideration of their duties under s.149 which a QC might deploy in court. The outcome of cases such as this is ultimately, of course, fact specific …”(R(Bailey) v Brent LBC [2011] EWCA Civ 1586 [102]).

These words apply with particular force to the present case as Councillor Patel was fully apprised of the Council’s s149 EA duties. She also had the benefit not merely of a careful report but also of EIAs and particularly of her own detailed investigations and those of the Council staff.

Fifth, the October Decision would not have had a disproportionate effect on the Asian community. Many of the Asians/British Asians lived in the “Asian Lifestyle homes” and who greatly outnumbered those in the homes to be closed as a result of the October Decision. While there were 7 Asian/ British Asian people in Herrick Lodge in 2012/2013, there were 66 Asian/ British Asian people in Asian Lifestyle homes, and the Council has had no difficulty in placing people in such homes. In other words, there was no cogent evidence of an under-provision of facilities for this community. Indeed, the evidence shows that members of the Asian/British Asian minority preferred to continue to live at home with their families or in Extracare housing in which the Council made a contribution. I have explained in paragraph 98 the University survey, which showed that Asian people preferred to be, cared for by their families with the help of the Council rather them in residential homes. There was no evidence that those living in those places wished to live in Herrick Lodge or in other residential accommodation where there were vacancies at different times. Even though recently the threat of closure might have deterred some people from moving there, there was evidence that Herrick Lodge had been undersubscribed for a long period.

Sixth, perhaps more importantly Councillor Patel has explained that before making the October decision, she was aware that the majority of Asians/British Asians placed by the Council elected to live in ExtraCare homes or in privately run Asian lifestyle homes rather than in Council-run homes and Herrick Lodge in particular. She observed that she is not surprised by this, because the quality of appropriately culturally sensitive provision at such private homes, which is “comparable with or perhaps better than that available at Herrick Lodge”. Councillor Patel was entitled to conclude that there was at the time and would be in the future:

“adequate specialist provision to meet the needs of elderly Asians/British Asians in Leicester. Over the last decade, the market has responded to provide such specialist care effectively. The Council’s research was that the market was stable and that it would continue to respond to meet such needs”.

In my view, there was nothing irrational about this conclusion. I am satisfied that the Council had complied with its duty under s149(1)(a)EA to show “due regard to the need …to eliminate discrimination”. Councillor Patel was entitled to be satisfied that there were places available for the British Asians/Asian residents of Herrick Lodge which would have satisfied the culinary, religious demands as well as the linguistic needs and which were in easy travelling distance of their relatives and friends.

My conclusion is that, with the greatest respect, the able submissions of the Claimant seek to impose a very much greater duty on the decision-maker than is required with their contention that the additional “quantitative” and “qualitative inquiries” were required as part of the Council’s duty to show “due regard”. Those submissions would have required the Court to “micro-manage” the Council’s duty, and they are in effect asking the Court to subject the inquiries made by Councillor Patel and the Council to a much more rigorous test than had been laid down in the judgments to which I have referred. Indeed, the Claimant’s case seems to be based on the assumption that the duty of the Council was to achieve a particular result, such as the elimination or reduction of unlawful discrimination but, as I have explained in paragraph 105(a), it is settled law that the PSED is not a duty to achieve a particular result.

Ms Mountfield accepts that there is an overlap between the need to eliminate unlawful discrimination and the need to advance equality of opportunity, but, as Lord Dyson noted in Baker (supra) they are not the same thing. The relevant “opportunity” to be considered at this stage is the opportunity to live in residential care which meets the resident’s preferences in relation to their cultural, linguistic, religious and dietary needs. These needs were a product of their Asian/British Asian background which led them to have special and different requirements as to how and where they lived. The Council agree with this approach which is consistent with s149(3)EA.

Ms Mountfield contends that, where as here a Council is changing the shape of future provision in terms of residential care by the October Decision, the question is what impact that future service would have on equality of opportunity, and not just the impact on the current residents immediately affected. In other words, Ms Mountfield submits that two sequential inquiries were called for. The first was “The impact of the future care planning decision on equality of British Asian overall”, while the second was a separate inquiry to consider the impact of the decision to close particular homes in Phase One on equality of opportunity for existing British Asians to live as they would choose.

In addition, Ms Mountfield contends that the Council should have considered, but did not consider, a number of issues, including:

It was also said by Ms Mountfield in her skeleton argument that there was:

The Council contend that in making the October Decision, it gave due regard to the need to advance equality of opportunity. It does not accept that decision would have a disproportionate impact on the Asian/ British Asian minority.

On this issue, Mr Sharland also relies on many of the same arguments that he put forward in relation to the s149(1)(a) EA issue which showed the way in which Councillor Patel had satisfied herself that there were vacancies at “Asian Lifestyle Homes” which would cater for the linguistic, dietary, cultural and religious needs of the Claimant and were close to Herrick Lodge, the Claimant’s relatives and community facilities.

In my opinion, the Council and, in particular, Councillor Patel gave appropriate consideration to the issues of whether the Claimant had the “opportunity” after living in Herrick Lodge to live in residential care which met the resident’s preferences in relation to their cultural, linguistic, religious and dietary needs as well as being close to Herrick Lodge, the Claimant’s relatives and community facilities. I have already explained how Councillor Patel made the correct inquiries and ensured that there were places available in “Asian Lifestyle Homes” close to the Claimant’s relatives and community facilities in which the linguistic, cultural, dietary and religious needs of the Claimant could be met before the October decision was taken to close or sell its eight residential homes. In addition, the Council has made it very clear that neither the Claimant nor any other resident at Herrick Lodge will have to move until a vacancy comes up which meets their needs. As I have explained, Councillor Patel gave her word that the Claimant and other residents of Herrick Lodge would only move from there “when appropriate alternative provision has been found for her which is suitable to meet her various needs, including her cultural, religious, linguistic and dietary needs”. It is true that this meant accommodation judged suitable by the Council, but it would have to comply with these needs. All this and the other matters set out in paragraph 43 showed that the Council and Councillor Patel showed due regard for the need to achieve equality of opportunity on the matters of importance to the Claimant.

I have considered, but rejected, the contention of Ms Mountfield that the Council should have carried out the additional inquiries. Bearing in mind that the obligation of the Council was to show “due regard” to advance equality of opportunity, there was nothing irrational in the way in which they focussed on the matters which mattered to the Claimant, namely the cultural, religious and linguistic needs of the Claimant and the British Asians without being obliged to consider other ways in which Ms Mountfield now says that the Council should have considered. Many of the matters set out in my conclusions on the s149(1) (a) ground apply here. They include the matters set out in paragraphs 43 and 44 above as well as Elias LJ’s clear directions set out in paragraph 128 although they were inadvertently omitted from the draft circulated to Counsel in relation to the present ground. In addition, the Council had set out the seven-stage moving process set out in paragraph 42 above, and Councillor Patel had also given her word that the Claimant and other residents of Herrick Lodge would only move from there “when appropriate alternative provision has been found for her which is suitable to meet her various needs, including her cultural, religious, linguistic and dietary needs”. In reaching the October Decision, the Council had not acted irrationally and had paid due regard to the need to advance equality of opportunity. As I explained in paragraph 128, Elias LJ has explained that it is not for the Court to determine whether proper weight has been given to a factor where as here there has been proper appreciation of the potential impact of the decision on equality issues.

The inquiries suggested by Ms Mountfield might perhaps have been required if the duty of the Council was to ensure that equality of opportunity was achieved, and that was, of course, not the Council’s obligation. Those inquiries were not required in the light of the s149 (1) (b) EA duty, which was only to show “due regard” to the need to advance equality of opportunity. Indeed the inquiries contended for by Ms Mountfield would have entailed the Court micro-managing the exercise carried out by the Council but as I explained in paragraph 132 above, that is not permissible. That would also have meant in the words of Davis LJ in the Bailey case (supra) [102] that:

“an air of unreality has descended over this particular line of attack. Councils cannot be expected to speculate on or to investigate or to explore such matters ad infinitum”.

I should add that in the ten-day period between the first and the second day of the hearing, the Claimant altered or expanded her case so as to contend for the first time that the Council should have considered the age of the client group or friendship group. This was not an issue raised during consultation or in the Claimant’s witness statement. So the Council did not act irrationally by refusing to consider it. An additional reason why this complaint cannot be pursued is that s.149 does not require such inquiries or, at least, that it was not irrational or Wednesbury unreasonable not to consider requiring them.

So the Council discharged its duty and this head of challenge also has to be rejected.

The case for the Claimant on this issue was originally focussed on the alleged links between Herrick Lodge and the Peepul Centre, but Councillor Patel, who used to be Chief Executive of the Peepul Centre, has explained convincingly that there are no such links.

Ms Mountfield contends that it was important that due regard was required by the decision-maker, Councillor Patel, to foster good relations and this involved due regard to the needs both to tackle prejudice and to promote better understanding between British Asians and white British people. In her Reply, Ms Mountfield sought to rely on some matters adduced by the Claimant’s granddaughter which had not been previously adduced in evidence and that was too late but in any event they do not undermine my conclusion on this issue.

In my opinion, the Council through Councillor Patel satisfied this obligation by having “due regard to the need to …foster good relations” by first considering the cultural, linguistic, religious and culinary needs of the Asians and British Asians who resided in Herrick Lodge and second by reassuring the residents that there would be appropriate provision to meet their needs if they left Herrick Lodge and if they wished, they would be placed in Asian Lifestyle homes. This was an acceptable approach open to the Council and there was nothing irrational or Wednesbury unreasonable in not carrying out these further inquiries first in the light of the statutory obligation which was only to show “due regard” to the need to foster good relations, and second on account of the steps that Councillor Patel and the Council had already taken.

I do not consider that there is any merit in any of these grounds in relation to the PSED and which fail to take into account of what Councillor Patel considered and what has to be shown by a decision-maker in order to comply with its PSED. As I have explained, I have concluded that the Claimant’s submissions fail to appreciate the threshold set out in s149 EA because they are based on the premise that there was a requirement that the Council should ensure that the matters set out in s 149(1) EA were actually met rather than the obligation to have due regard to the need to achieve certain ends. Indeed Dyson LJ in Baker (supra) explained the distinction which he regarded as “vital” between on the one hand, the duty to achieve a result such as to eliminate unlawful discrimination or to promote equality of opportunity, and, on the other hand, the duty to have due regard to the need to achieve these goals. Issue 2 is only concerned with the latter duty and in my opinion, it has satisfied this.

Ms Mountfield contends not merely that the Council failed to take into account the relevant matters identified in Issues 1 and 2 above, but also that the Council also failed rationally to take into account three additional considerations when making the October Decision, namely:

The Claimant contends that the October decision should therefore be quashed, but the Council disputes these contentions and submits that all proper considerations were taken into account in making the October Decision.

Ms Mountfield contends that the Council ought to have appreciated that any decision to move the Claimant out of Herrick Lodge was very likely to have had a profound adverse effect on her physical and mental well-being, possibly her life because of her great age, her close cultural ties with a minority community, the length of her residence at Herrick Lodge and her inability to speak English. So it is said that in deciding to close Herrick Lodge, the Council failed to appreciate that, in the words of Ms Mountfield’s written submissions in Reply, “this would inevitably lead to a decision to move the Claimant which might itself breach Article 8” (emphasis added).

It is not submitted by Ms Mountfield that the October decision would actually infringe those rights, but instead the Claimant’s case as stated in the written submissions in Reply is that by failing to ask:

“whether such a future move could be required without disproportionate harm to the Claimant such as to breach Article 8, the Council failed to take into account of all relevant considerations”.

It is said by Ms Mountfield that even if it was considered that Herrick Lodge should only be shut in the long term, there were alternatives to immediate closure such as using places in Herrick Lodge for short-time respite care for those seeking culturally suitable care and that these matters should have been considered so as to have avoided a potential future breach of the Claimant’s Article 8 rights.

So the case for the Claimant is first, that the Council did not take the proportionality of closure into account and, in particular, the adverse impact of closure on the Claimant and her fellow Asians and “a decision to move the Claimant might itself breach Article 8 before making the decision to close Herrick Lodge, and second, that the justification evidence introduced after the institution of these proceedings could not assist the Council”.

Although Councillor Patel’s evidence does not specifically refer to the Claimant’s Article 8 rights, it is clear that there was much consideration by her as to how to ensure that the Claimant could be moved to a place where many, if not all, of the aspects of her private life which she considered important would be safeguarded. These considerations were extremely similar, if not identical, to Article 8 issues. In other words, Councillor Patel was focussing on whether the private life of the Claimant could or would be jeopardised by the closure of Herrick Lodge and if so, then considering how to ensure that it would not be jeopardised. In paragraph 39 ffabove, I set out the steps she took to ensure that there would be places to which the Claimant could be moved at which she would be served with good quality Gujarati food, where there would be Gujarati-speaking social workers and care workers, where she would have easy access to Gujarati temples, and where she could be visited with ease by her family. In that way, it was hoped and expected that the specific cultural, dietary and linguistic and religious needs of the Claimant and her fellow British Asians or Asians would be met and that her private life would not be jeopardised. These were all matters, which were highly relevant, if not of crucial importance, to the Article 8 rights of the Claimant which the Council and Councillor Patel were keen to protect.

There was also in place the seven-point plan set out in paragraph 42 above which would help the Claimant if and when she moves, and in addition, there would be Gujerati-speaking staff that would be available to support the Claimant and her fellow residents through the process. Further Councillor Patel had given her word that the Claimant and other residents of Herrick Lodge would only move from there “when appropriate alternative provision has been found for her which is suitable to meet her various needs, including her cultural, religious, linguistic and dietary needs”. All these matters showed that factors relevant to the Claimant’s Article 8 rights were being considered. So it does not matter that the words “Article 8 rights” were not being used by Councillor Patel as it is substance rather than labels that matters. In essence, Councillor Patel was considering how the Article 8 rights of the Claimant would be safeguarded so as to ensure that it did not infringe those rights. Much of the Council’s evidence went to that issue.

Thus this ground must fail as the private life of the Claimant and the Article 8 rights of the Claimant had been considered by Councillor Patel and the Council when making the October Decision and in the promise of Councillor Patel set out in the last paragraph.

A further reason why this ground must fail is that it is premature to contend that the Claimant’s Article 8 rights will be or might be infringed as those issues can only be decided if and when the Claimant has to move. Ms Mountfield accepts in her written Reply, that “where a breach of Article 8 is alleged, the question is not whether the decision-maker has properly considered the matter but whether in the Court’s own view a breach has occurred”. In this case, it is clear that there has not yet been a breach of the Claimant’s Article 8 rights as she has not been moved or been told when or to which place she will have to move. There might not be a breach of those rights, and indeed whether there will be a breach will depend on what happens to the Claimant if and when Herrick Lodge is actually closed and, more particularly, the separate decision is made as to how and where she is given accommodation and the nature of the facilities available there. So any contention that the Claimant’s Article 8 rights have been infringed or might be infringed must be rejected.

For the purpose of completeness, I should add that Ms Mountfield had initially relied on the approach of the Court of Appeal in R (Goldsmith) v Wandsworth LBC [2004] EWCA Civ 1170 [91] in which it had to determine a complaint that a matter had not been considered before a decision had been taken in relation to Article 8 rights with the consequence that the decision was unlawful. Wall LJ explained of this complaint that:

“These are not academic considerations. It is not in dispute that a change to a strange environment for a person of the Appellant's frailty could have serious if not fatal consequences. The proportionality of the response is, therefore, of the utmost importance. In my judgment it is not good enough for Wandsworth, after the institution of proceedings, to produce evidence that this was a factor in its mind when it made the decision (whenever that was). In my judgment, the court has to look at the decision at the time it was made and at the manner in which it was communicated to the person or persons affected by it. And in that process, I find a complete absence of any suggestion that Wandsworth had addressed the Appellant's Article 8 rights…”

On the facts of this case, Ms Mountfield contended that the Council could not move the Claimant from Herrick Lodge in which she has resided for many years and which is near her family and community without interfering with her Article 8 rights. She submits that as the Council did not take into account in deciding to close Herrick Lodge the possibility that the Claimant’s Article 8 rights might be infringed, its decision to do so is flawed by its failure to take into account relevant considerations.

This submission fails to take into account the different approach that has to be adopted, on the one hand, by a court in determining a judicial review issue, and, on the other hand, the totally different matter of deciding whether there has been an alleged infringement of a Convention Right because as Lord Bingham of Cornhill explained in R (SB) v Governors of Denbigh High School [2005] 1 WLR 3372) at paragraph 59 that:

“The focus at Strasbourg is not, and has never been on whether a challenged decision or action is a product of a defective decision-making process, but on whether, in the case under consideration the applicant’s Convention rights have been violated.” (See also similar comments by Lord Hoffmann at paragraph 68).

In other words, the corollary is correct as it is quite clear that when a breach of a Convention right is in issue “an impeccable decision-making process by the Secretary of State will be of no avail if she actually gets the answer wrong” (per Lord Hoffmann in R (Nasseri) v Secretary of State [2010] 1 AC 33 [14]. So the submissions of Ms Mountfield are inconsistent with the reasoning especially of Lord Bingham.

For all those reasons, I reject this complaint.

The case for the Claimant is that she had a legitimate expectation based on the terms of her own Placement Agreement that she would be able to remain at Herrick Lodge unless and until her needs could no longer be met there or until she failed to make the required individual contribution or her behaviour was unacceptable. These were, according to Ms Mountfield, the only circumstances in which her right to stay in Herrick Lodge could be terminated. So it is said that she had legitimate substantive expectation that she could remain there as long as none of those events had occurred. It must not be forgotten that a substantive legitimate expectation requires as a minimum an undertaking which is "clear, unambiguous and devoid of relevant qualification" - see Bingham LJ in R v Inland Revenue Comrs, ex parte MFK Underwriting Agents Ltd [1990] 1 WLR 1545, at 1569, affirmed by Lord Hoffman in R (Bancoult) v Secretary of State for Foreign and Commonwealth Affairs (No 2)[2009]1 AC 453 [60]. In R (Bhatt Murphy) v Independent Assessor [2008] EWCA Civ 755, Laws LJ emphasised the special nature of the promise or practice, which was necessary to give rise to a substantive legitimate expectation. He explained, with emphasis added, that there must be "43…a specific undertaking, directed at a particular individual or group, by which the relevant policy's continuance is assured”.

In this case, there were only statements in the Placement Agreement specifying when the Claimant mighthave to leave Herrick Lodge in the sense that it was provided that “ the Council may terminate this Agreement in the following circumstances…”. Crucially there was no “clear, unambiguous” representation that these were the only circumstances in which the Claimant could be required to leave or that she was entitled remain in Herrick Lodge for life, save for those circumstances. There was nothing in the Placement Agreement which showed that the Claimant would be entitled to remain in Herrick Lodge if, for example, either there was no demand for places at Herrick Lodge and the Claimant was and would continue to be the only resident there or if it was unsafe for her to live there because of a serious defect in the building. For those reasons, the Claimant is not entitled to an order quashing the October Decision on the grounds that she had a legitimate expectation to remain at Herrick Lodge for life.

Even if there was a form of legitimate expectation, then, as I will now explain, the Claimant’s case cannot succeed because it could be, and indeed, would be defeated by an overriding interest. Originally the case for the Claimant was that she disavowed that she had a substantive legitimate expectation as explained in paragraph 95 of the Claimant’s skeleton argument. Her case latterly was that her right to remain in at Herrick Lodge placement could not be terminated without recognition of the Claimant’s expectation to remain in Herrick Lodge for life and weight being given to it in the decision-making process save in the circumstances set out in paragraph 170. No weight was given to that right before the October Decision was taken. It is settled law that any such expectation of a home for life by the Claimant could be defeated if the Council could “identify any overriding interest on which it relies to justify the frustration of the expectation” (per Lord Dyson JSC in Paponette v Attorney- General of Trinidad and Tobago [2012] AC 1,14 [37]). Lord Dyson also explained in Paponette [37] that the onus of proving an overriding interest moves to the authority once the Claimant has proved an expectation. In this case (even if contrary to my conclusion the Claimant had a legitimate expectation to remain in Herrick Lodge for life save in the circumstances set out in paragraph 170), then the Council would still have had overriding interest because there were powerful reasons why Herrick Lodge had to be closed. The October Decision states one of the options considered was “no option”; Councillor Patel considered that:

“This is not an option, due to the declining numbers and cost of the Council providing residential care compared to the independent sector”

Those factors amount to an overriding interest especially as the Council owed a duty to, among others, Council taxpayers. Auld J said in R v Newcastle-upon-Tyne City Council, ex parte Dixon (20 October 1993, unreported) that:

“… where a local authority has a statutory duty to provide services and to fund them in part or in whole out of monies provided by its taxpayers it must balance two duties one against the other. On the one hand it must provide the statutory services required of it; on the other, it has a fiduciary duty to those paying for them not to waste their money. It must fairly balance those duties one against the other.”

Thirdly, the Court should be slow to intervene where, as in the present case, there has been a long process of consultation”

(cited with approval in R (Birmingham Care Consortium) v Birmingham City Council [2002] EWHC 2188 (Admin)[32] )

I should add that insofar as the Claimant’s case is that she had a procedural right to have her substantive legitimate expectation taken into account, such a right does not appear to be underpinned by any acceptable legal reasoning or if it exists, it too is subject to and is undermined by the existence of an overriding interest of the kind which I have mentioned.

This ground must be rejected.

The thrust of this complaint is that the Council reached a decision to close Herrick Lodge in which the Claimant had resided for the past 14 years without taking into account whether, and if so, where and how suitable alternative provision could be made for her needs. In other words, it is said that the Council failed to take any steps to assess the content of the Claimant’s care needs and that these matters were not considered, but they should have been where a decision involved moving a very frail woman aged 101, who does not speak English and who for 14 years has lived in the same place near her family and her community and which meets her cultural and religious needs.

There is, however, ample evidence that prior to making the October decision, the Council had considered the Claimant’s need in the light of the level of vacancies in Leicester care homes generally and in Asian Lifestyle homes, in particular. Any analysis of Councillor Patel’s evidence shows that she made proper inquiries to ensure that the future care needs of the Claimant were taken into account. Those needs included the Claimant’s cultural, culinary, linguistic and religious needs as well as the need to be within easy travelling distance of her family. Before making the October Decision, the Council had ascertained that there were likely to be sufficient vacancies at such homes to accommodate the residents at Herrick Lodge if they wished to move to such a residential home. Indeed, there are a number of such “Asian Lifestyle homes” located near Herrick Lodge and the Claimant’s relatives. This would be an answer to this complaint.

I am fortified in reaching that conclusion by three additional factors. First, Councillor Patel gave her word that the Claimant and other residents of Herrick Lodge would only move from there “when appropriate alternative provision has been found for her which is suitable to meet her various needs, including her cultural, religious, linguistic and dietary needs”.

Second, the October Decision stated that:

“Residents and their families/carers will be fully supported through all changes, including detailed plans developed carefully with and for every resident moving to another residential home.”

Third, Councillor Patel has explained that if and when the residents of Herrick Lodge had to move out, there would be Gujarati-speaking staff who would be available to support residents through the seven-stage moving process, which I set out in paragraph 42 above.

In any event, any challenge based on the failure to assess it is premature, because the removal of the Claimant from Herrick Lodge has not yet taken place while the present proceedings are in hand. There is every possibility that her cultural, religious, dietary and linguistic cultural, religious, dietary and linguistic needs will be satisfied at the place to which she is moved.

Finally, it must be stated that in the absence of exceptional circumstances (such as where persons in the home have profound learning difficulties), it is neither necessary nor appropriate to carry out an assessment of needs prior to closure as was explained in R (B) v Worcester County Council [2009] EWHC 2915 (Admin). There are no such exceptional circumstances in the present case and therefore this ground fails.

I have very great sympathy for the fact that the Claimant does not wish to leave Herrick Lodge, especially because of her great age and as Herrick Lodge has been her home for a very long period and because she feels happy and settled there. I can understand why she and her family are concerned about the prospect of her moving, but my task is to apply the recognised legal principles which show as I have sought to explain, there are no valid grounds for challenging the October Decision notwithstanding the able arguments of Ms Mountfield. I should add that if the Council seeks to move the Claimant to an unacceptable place, she might be able to challenge that decision and that might be some consolation to her and her family.

Permission to pursue this application is granted, but this application must be refused.