Council defeats High Court challenge over closure of day centre

Rotherham Metropolitan Borough Council has successfully defended a High Court challenge over its decision to close a day centre for adults with learning difficulties.

In AA, R (on the application of) v Rotherham Metropolitan Borough Council [2019] EWHC 3529 (Admin) the claimant, who is 27 and has significant needs, in particular because of her autism, had attended the Oaks Day Centre in Wath five days a week since the age of 19.

She was said to be happy there, with friends whom she had known since school also attending. The centre's staff were also said to be like friends to her.

On 21 May 2018 the council decided, as part of its plans for provision for adults with learning difficulties, to close the centre.

The decision was taken after a lengthy period of consultation although the focus in the claim was on a second consultation that took place from 28 September 2017 to 22 December 2017. The claimant and many others had opposed the closure of the day centre throughout these periods.

Permission to bring judicial review proceedings was granted on ground one only which was subdivided into two grounds. They were both aspects of the alleged failure to comply with the requirements for a lawful consultation, framed as follows (in the Statement of Facts and Grounds):

"Despite stating "RMBC would consider and take into account the learning from the consultations that have taken place", the consultation was unlawful in two significant respects. First, the options presented to the consultees and to the decision makers omitted an option of increasing flexibility, the range of options for care provision, and access to the community whilst retaining day centres. Second, contrary to the fourth Gunning criterion, the Decision was reached following defective consultation, inaccurate presentation of consultation responses in the consultation analysis …. and by the council officers to the decision-makers (the Cabinet and Commissioners), resulting in failure to take conscientiously into account consultation responses, particularly the level of opposition."

In relation to ground 1, the judge, Mrs Justice Jefford, found:

• This was not, in her judgment, a case in which fairness required that there should have been a specific alternative option identified in the consultation and/or that a discarded option should have been referred to;
• By the time of the second consultation, the council's preferred option “was indeed the closure of the day centres but putting forward that preferred option came at the end of a lengthy sequence of events in which consultees had been broadly invited to express views and there had been open discussion of the future of provision, which itself had been designed by or with the assistance of independent advisers”.
• Considerable care had been taken by the council to formulate the consultation to elicit the views of stakeholders (including customers and carers) with the independent experts engaged to participate in this process. “It is, of course, not impossible that, even with that degree of care, a consultation process could, in the event, be clearly wrong and unfair but it is inevitably less likely.”
• It would be wrong, in her view, to come to the conclusion that the consultation was clearly and radically wrong or unfair because some questions might have been even better formulated.

She did not consider that the consultation process was unfair in the respects relied upon by the claimant and the application for judicial review on the first ground therefore failed.

In relation to the second ground, the judge said:

• It did seem to her that where the officer's report and the executive summary made no reference either to opposition to closure or to the data in the Aceppe report [Aceppe is an external body taking its name from an acronym for A Centre of Excellence for Patient and Public Engagement], there was a basis to draw the inferences that the claimant had invited the court to draw [namely that it could be inferred from the misleading nature of the report that the outcome of the consultation had not been given conscientious consideration] and there was then some degree of evidential burden on the council to persuade the court that those inferences should not be drawn. “How the Council does that depends on the facts.”
• Given the direct evidence and the inferences that might be drawn, she considered this issue to be “finely balanced”.
• The primary difficulty with the claimant’s submission and the drawing of those inferences seemed to her to be the lengthy background to this decision-making process. “Aceppe had been involved for a considerable period and had provided a report analysing the outcome of the first consultation. Aceppe had then been engaged in the design of the second consultation questionnaire. It can be inferred, even without direct evidence to the point, that the councillors were aware of the engagement of Aceppe and that the Aceppe report would provide the independent analysis of the outcome of the consultation. In that sense, the report was not hidden away in an Appendix and the position was very different from that in Tilley.” The report was listed as an Appendix and it was, in any case, a substantial document. “Given the obvious importance of the decision to close day centres, on balance I consider that [counsel for Rotherham’s] submission is more likely to be right and that this is a document to which (even without direction in the body of the officer's report), the Cabinet members can be inferred to have given conscientious consideration.”
• That there was substantial opposition to closure was the thrust of much of the lengthy consultation process. “It would be perverse to infer that simply because of the officer's report and executive summary all Cabinet members were then misled into thinking that that opposition had evaporated. On the contrary, it is far more likely that they would have regarded the report as setting out a recommendation with reasons for that recommendation and then given due consideration to the report on the consultation in which they could have anticipated that opposition to that proposal would have been voiced.”

Mrs Justice Jefford therefore declined to grant the relief sought by the claimant.

She added that it was “very clear that the claimant is deeply loved and supported by her family and that the Oaks Day Centre has played an important part in her life and that of her carers. It is impossible not to have considerable sympathy for them and the distress that the prospect of losing this part of her life must have caused and will cause them.

“But the function of this court is to interfere with the often difficult decisions that local authorities have to make only where they have been reached unlawfully and, in my judgment, this is not such a case.”