Round the clock care

Attempts to change care arrangements often lead to a challenge. Robert Wassall reviews one recent case where a 24-hour on-site warden service was set to be replaced.

On 29 June 2011, in the case of R (on the application of Tiller) v Secretary of State for the Home Department, the claimant (T) applied for judicial review of the defendant local authority's decision to alter the 24-hour care provided to tenants of a sheltered housing scheme.

T was disabled and a tenant at the sheltered housing scheme, which was funded by the local authority. A 24-hour on-site warden service was provided. Due to the cost of the service the local authority wished to replace it with an alternative service and began a consultation process with the tenants, carers and managers. A project group was set up to consider options, but keeping the existing service was not permitted as an option. Meetings were held with tenants, and their views were obtained by a questionnaire and survey.

Local authority officers prepared a report containing recommendations, and a senior officer decided that the service should be replaced with an on-site service during week-day office hours and an on-call remote service at other times. The most vulnerable tenants were offered accommodation at nearby facilities that offered greater levels of care.

T argued that the local authority had failed to give any conscious thought to its duty under the Disability Discrimination Act 1995 (DDA) to have due regard to the need to achieve certain goals in relation to disabled people in carrying out its functions, which was evidenced by the failure to mention the duty or the Act in any documents relating to its decision. T also contended that the ruling out of the status quo demonstrated that the consultation was not as open as it should have been.

The court decided that:

• the consultation process had not been flawed by the ruling out of the status quo; one of the options considered was a more generous provision
• the decision had been taken after full consultation and had been properly taken after a proper assessment of need. Although some tenants had continuing concerns about the level of care at the time the decision was made, it was not right to say that those concerns had not been considered
• notwithstanding the lack of mention of the DDA in the documents, the local authority had discharged its legal obligations.

What this means for social landlords

Changing care arrangements are nearly always difficult and increasingly result in a legal challenge. Such challenges usually allege a failure to properly consult and that the human rights of those being cared for have been breached. Often, this results in an unfavourable outcome for the social landlord.

Even if, as in this case, the landlord was successful, the fact is that it became embroiled in costly legal proceedings. This is because although the landlord acted in a way that was legally correct, it failed to demonstrate to those affected that it had acted fairly, by (a) failing to specifically refer, in its consultation documentation, to the DDA (now the Equality Act), and (b) specifically ruling out the keeping the existing arrangements (thus giving the impression that the outcome was a foregone conclusion).

Robert Wassall is a partner and head of social housing at Blake Lapthorn. He can be contacted on 023 8085 7012 or by email at This email address is being protected from spambots. You need JavaScript enabled to view it..