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Borough council decision to close a day care centre was lawful

Slough Borough Council's consultation on the closure of a day care centre was lawful, and the local authority was not required to assess the individual needs of each service user impacted, the High Court has ruled.

In AB, R (On the Application Of) v Slough Borough Council [2022] EWHC 1772, Mr Benjamin Douglas-Jones QC, sitting as a deputy judge of the High Court, said that the court had "great sympathy" for the claimant, who has a number of disabilities that mean he needs 24-hour support, "but judicial review is a means of challenging an administrative action by a public body where that action is unlawful and in my judgment the consultation was not unlawful".

The man had attended the care centre five days a week for 16 years, from 2004 until the pandemic closed the centre in 2020.

In September 2021, a report prepared for the council’s Cabinet listed three options for the post-pandemic future of care services in the borough. Councillors rejected a plan that would see the reopening of care services which were closed during the pandemic and also dismissed a plan for a "significantly" reduced provider services offer. 

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Instead, members resolved to pursue the second option to move away from being a direct provider of care and to commission alternatives to meet people's needs. In the same month, the council made the decision to close services, including the man's day centre.

The claimant later pursued a legal challenge, leading to a High Court hearing in which he argued that the decision:

  1. was based on an unlawful consultation process that did not fulfil the requirements of taking place at a formative stage, giving sufficient reasons for the proposals to permit intelligent consideration and response, and/or conscientiously taking the product of the consultation into account;
  2. did not take into account a number of relevant considerations, including in particular the needs of the current service users; and
  3. has led to an ongoing unlawful failure to meet AB's eligible needs under the Care Act 2014.

Under ground 1, the claimant first argued that the council's consultation on its new care strategy did not take place at a formative stage as it had already rejected the options of reopening or remodelling care centres when the consultation was effected.

However, the judge found that the fact that a debate about the closure of the day centre and the other care facilities during the Cabinet meeting of 20 September 2021 "shows that the consultation took place at a formative stage".

He added: "Before making its decision, the Cabinet considered the implications of the closures and put in place safeguards for checking that needs would be met. In any event, if I am wrong about that, and had the Report included option 2 as a preferred option, it would not have rendered the consultation unfair. As [the claimant's barrister] acknowledged there is nothing unlawful about a public authority having a preferred option. Nothing 'like a determination' had been made to adopt option 2 when the consultation took place."

Under the first ground, the claimant also argued that the possibility that the centre would be closed by the council was not made clear in the consultation material. The judge found that it was "nevertheless clear to service users, their families and carers that one of the options being considered to be placed before the Cabinet of the Defendant was the possible closure of [the day centre] and other services".

He dismissed the claimant's first ground.

The judge also went on to dismiss Ground 2. He noted that there is no principle in law to the effect that before a local authority changes the way it delivers services provided to many people, it has to assess the needs of each service user and match those needs to available alternative service providers.

Judge Douglas-Jones QC added: "[Local] authorities are constantly taking decisions which affect very large numbers of people. They would be prevented from taking any such decision if every time they did so they had to consult many – perhaps hundreds or thousands of – people."

The authority is not required to assess all affected service users before doing so, the judge said.

The judge dismissed ground 3, finding that the claimant's argument concerned a downstream decision that was not capable of impugning the decision under challenge.

Adam Carey

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