R v Lloyd (by her mother and litigation friend Bernadette Lloyd) -v- The Mayor and Burgesses of the London Borough of Barking & Dagenham

A local authority’s redevelopment of residential care accommodation is not unlawful merely because it changes an established communal regime. The relevant question is whether the proposed arrangements can meet assessed needs, rather than whether they reproduce the previous way of meeting them. A legitimate expectation may protect an opportunity to eat communally, but does not necessarily require an identical regime.

An undertaking requiring a solicitor’s or health professional’s approval does not confer an unqualified veto. Approval is subject to reasonableness, and the court may determine whether refusal is reasonable. In community-care judicial review, the court should not prescribe the detail of an assessment or care plan where the authority has room for judgment. A provisional plan may be lawful while requiring later development. Intervention is reserved for demonstrated illegality.

The appellant, a severely disabled woman, had lived for many years in a local-authority residential care home. The authority proposed redevelopment through a housing association, with individual flats and facilities allowing residents to choose private or communal dining. Following judicial review proceedings, the authority gave undertakings in February 1998 concerning assessments, care plans, consultation and approvals for the proposed accommodation and transfer.

Mr Justice Keene dismissed the applications, finding that refusal to approve the plans and draft contract was unreasonable and that the provisional care plan was not unlawful. By the time of the appeal, updated assessments and plans had been produced. The outstanding issues were whether contracts could be exchanged without further approval and whether the current assessment or care plan required intervention.

Disposition

1. The appeal was dismissed. No illegality requiring the court’s intervention was demonstrated. Costs were awarded to the respondents, subject to detailed assessment.
2. As to the proposed transfer and rebuilding, the approval mechanism in the undertakings did not give the applicant’s solicitor or health professional a veto. The question was whether refusal to approve the conditional contract was reasonable, and that question was for the court. The proposed kitchen and communal area were not shown to prevent communal dining. The physical arrangements therefore did not inhibit the Council’s obligations.
3. The Council was not required to preserve the former compulsory communal regime. Residents could have private kitchens and choose whether to eat alone or together. Any legitimate expectation arising from the earlier proposals or discussions was limited to an opportunity for communal dining, not an identical replacement regime.
4. Under section 47 of the National Health Service and Community Care Act 1990, the Council had to assess needs and then decide, having regard to that assessment, whether those needs called for services. The court was not the appropriate body to prescribe the precise detail of an assessment or care plan, or the extent of consultation, where the Council had room for reasonable professional judgment. Disagreement about adequacy did not itself establish unlawfulness.
5. The current care plan for the proposed new accommodation was provisional and could be developed and reviewed as the move approached. It was lawful at that stage, although the judgment did not suggest that its present form would necessarily be adequate when the move took place. The court also declined to intervene in relation to the temporary accommodation plan, whose remaining period was short and whose inadequacy was accepted.
6. The undertakings should not continue as potential contempt sanctions. Some merely restated statutory duties, while others imposed positive obligations beyond the Council’s power to guarantee and required an implied term of reasonableness. Releasing the Council from the undertakings did not affect its continuing public-law duties.

1. Court of Appeal (Civil Division) — On 11 April 2001, the court dismissed the appeal, held that the proposed transfer could proceed, declined to intervene in the current assessments and care plans, and treated the undertakings as no longer requiring continuation. The judgment is reported at [2001] EWCA Civ 533.
2. High Court, Mr Justice Keene — In July 2000, the applications were dismissed. The judge held that refusal to approve the plans and draft contract was unreasonable and that the provisional care plan was not unlawful, while allowing the Council to proceed without breach of the undertakings.