Council failed to consult properly over day centre closure by not asking specific about particular services due to close. It was not enough to imply that a new policy might mean some closures says the Court of Appeal
A county council failed to consult properly about the closure of a day centre, the Court of Appeal has ruled. The case of LH, R (on the application of) v Shropshire Council  EWCA Civ 404 centred on the closure of the Hartleys Day Centre in Shrewsbury. The claimant (LH) was a 63-year-old user of the centre who had a learning disability and had been assessed as having substantial care needs. Her sister acted as her litigation friend.
Shropshire had decided to close Hartleys after re-thinking the approach to day care in the county. This reconfiguration was partly a result of budgetary constraints and partly followed Government encouragement to give disabled people personalised budgets for spending in relation to their disability.
At issue was the extent of consultation required when a council reconfigures its day services and then decides to close a centre.
- The local authority argued that it had consulted generally about the new system it was bringing in and had made it clear that some day care centres would close.
- The claimant, however, argued that she and others should have been consulted in relation to the closure of Hartleys itself before it occurred. It was also alleged that there had been a failure to comply with the public sector equality duty contained in s. 149 of the Equality Act 2010.
Shropshire had accepted that fairness required that there should be consultation. The key question was how specific the consultation needed to be.
In the High Court His Honour Judge Sycamore ruled in favour of Shropshire, but this has now been overturned by the Court of Appeal.
Giving the judgment of the court, Lord Justice Longmore said: “In some ways I regret having to come to this conclusion, differing as I do from the judge…., because it is clear that Shropshire has taken a great deal of trouble to explain its reconfiguration of Adult Day Care and, in particular, the application of personalised budgets. The consultations undertaken in that respect were, as I have said, wide-ranging and, no doubt expensive and time-consuming to conduct.
“It has only mistaken its obligations at the last stage but, in the light of the law as I understand it to be, my own conclusion is that the omission to consult the users and relatives on the closure of Hartleys Day Centre before it was decided to close it was indeed unlawful.”
Hartleys was closed following the High Court hearing. Lord Justice Longmore said he did “not consider that it would be consonant to good administration now to quash the closure decision or to order the council now to conduct a consultation about its closure, when the only purpose of so doing would be to enable it to consult people, who are not now using it”.
The judge added: “That would be an expensive and over-legalistic exercise which justice to LH does not require especially as there is no reason to suppose that the council is not performing its duty to assist LH to find alternatives to Hartleys within her personalised budget.”
Lord Justice Longmore said he disagreed with counsel for Shropshire that it would be over-legalistic and pointless to grant any remedy at all.
“Having concluded that the council’s failure to consult did result in them acting unlawfully, the least that the court should do is to declare formally that this was the case,” he found.
Irwin Mitchell partner Alex Rook, who acted for the claimant, said: “This is a very important judgment not just in Shropshire, where it means that there would need to be a proper consultation before any of the remaining 15 centres could be considered for closure but also across the country where councils will be examining the requirements regarding public consultations very carefully.”
Rook added: “The judgment also provides much needed legal clarity at a time when many councils are being forced into making cuts to services. There is a need for clear, well-informed decision-making when assessing potentially adverse impacts on some of the most vulnerable members of society.
“This is particularly important in the current economic climate and applies not just to day centres but many other vital services provide by local authorities and the NHS that are facing cuts and possible closure. The judgment highlights the fact that it is for the courts to decide what is fair in relation to public consultations, not the local authority involved.”
Following the judgment, Shropshire Council said it was committed to continuing its work to give people more choice and control over adult social care services.
Stephen Chandler, director of adult services, said: “There are no winners in this situation, and it’s clearly regrettable that distress has been caused during these time-consuming and very costly court proceedings.
“We will now be reviewing what options are open to us, although it’s important to note that Hartley’s has already closed and the people who used the service have been supported to find alternative ways to spend their time, which on the whole have been successful.”
Chandler added: “We are pleased that the court recognised the work that had been done to consult with people about the transformation of adult services, which is reassuring, but we are disappointed they felt we needed to go further in this particular case, and clearly in future we will make sure we do that.
“We remain committed to transforming services and giving people greater freedom and control over the support they receive, which is where this stemmed from in the first place.”