Dudley & Anor & Ors, R (on the application of) v East Sussex County Council

Procedural fairness requires consultation while proposals remain formative, with sufficient reasons, adequate time and conscientious consideration of responses. A public authority need not finalise alternative placements before deciding whether to close a residential care home. The authority must have regard to relevant welfare risks, but need not consider every item of research or guidance, particularly material directed to a different institutional context. A local complaints panel’s guidance has no general authority beyond the authority that commissioned it. Closure of a care home will not ordinarily engage Article 3 unless the minimum severity threshold is met. Even where Article 8 is engaged, a closure decision may be justified by the economic well-being of the authority and the allocation of limited public resources.

East Sussex County Council decided to close the Moreton Centre, a residential and day care home for elderly people, and to relocate its long-stay residents and other service users. Consolidated judicial review applications were brought by residents, day care and respite users, and carers.

The claimants alleged inadequate consultation, irrational failure to consider relevant matters, and breaches of Articles 2, 3 and 8 of the ECHR. The central issues were whether the consultation was legally sufficient, whether the Council had omitted material considerations, and whether the closure decision was incompatible with Convention rights.

1. Consultation. The requirements stated in R v North and East Devon Health Authority ex parte Coughlan [2001] QB 213 were satisfied. The consultation occurred before the decision, explained that closure was a possibility, allowed written and individual representations, provided adequate time, and resulted in the material being placed before the Cabinet. Bringing forward the decision date did not shorten the consultation period. It was not necessary to identify or finalise alternative homes before the closure decision, since relocation remained a matter for later implementation and consultation.
2. Relevant considerations. The Council had taken account, in general terms, of the risks and welfare effects of transferring elderly residents. The evidence did not establish that it had ignored a material consideration. The individual assessments, representations and risk assessments were sufficient for the closure decision, although the Council remained obliged to consider residents’ welfare during implementation. The Cowl report was a Plymouth complaints-panel document and did not have authority to prescribe guidelines for other local authorities. The Department of Health document concerning transfers of frail older NHS patients was not guidance directed to local authority residential care homes, and its omission did not vitiate the decision.
3. Convention rights. Article 2 required the Council to do what could reasonably be expected to avoid a real and immediate risk to life of which it knew or ought to have known. That standard was not met on the evidence. The Article 3 minimum-severity threshold was not reached. Article 8 was assumed, without decision, to be engaged; the closure was nevertheless justified under Article 8(2), having regard to the Council’s financial constraints, local needs, the available grant and the competing demands on public resources.
4. All applications for judicial review were dismissed. The Council was to manage the closure and consequential arrangements, with costs dealt with in the usual publicly funded terms.

First-instance judicial review decision. No earlier appellate decision was stated in the judgment.