J & Ors, R (on the application of) v Southend Borough Council

A local authority’s statutory responsibility for community care ordinarily rests with the authority responsible for the person’s ordinary residence. Another authority may have power to provide services, but providing day-care facilities does not itself transfer the primary statutory responsibility or require duplicate assessments. Where the responsible authority is ready and able to assess needs and provide suitable services, the host authority may reasonably rely on that position and need not undertake a further assessment under section 47 of the National Health Service and Community Care Act 1990.

Withdrawal of access to an established day centre may engage Article 8, but the interference must be assessed in its wider context. Maintaining relationships, suitable alternative provision, public policy, limited resources and the authority’s margin of discretion may together make the decision proportionate.

Four adults with severe learning disabilities challenged Southend Borough Council’s decisions to close the Maybrook Centre and cease providing day-centre facilities at the Avro Centre for people placed there by other local authorities, including Essex County Council.

The claimants had long attended Avro and relied on established friendships and relationships there. Essex remained responsible for their community-care provision, while Southend operated the relevant facilities. The claimants argued that Southend should have assessed their needs before closing Maybrook and withdrawing their access to Avro, and that the decision unlawfully interfered with their private life under Article 8 of the Convention.

Permission had been granted principally on the Article 8 ground. The court also considered the statutory assessment arguments advanced at the hearing.

1. Statutory responsibility. The mandatory duty under section 29 of the National Assistance Act 1948 was directed to persons ordinarily resident in the local authority’s area. The Secretary of State’s approval also gave Southend a permissive power to make welfare arrangements for others, but did not impose the same mandatory duty.
2. Assessment duty. Under section 47 of the National Health Service and Community Care Act 1990, an authority must assess a person where it appears that the person may need services which that authority may provide or arrange. On the facts, Essex remained the authority with primary responsibility for assessing the claimants and meeting their assessed needs. Southend’s provision of day-care facilities under arrangements with Essex did not place Southend in Essex’s shoes or transfer the statutory responsibility.
3. It would be extravagant to require both authorities to conduct assessments where each knew that the other responsible authority was ready, willing and able to assess the claimants. Southend was entitled to rely on Essex’s statutory responsibility, its history of assessment and the cooperative arrangements between the authorities. No relevant need for a further Southend assessment had arisen, so the absence of such an assessment did not invalidate the consultation or closure decision.
4. Article 8. Assuming that withdrawal of access to Avro affected the claimants’ private life through their established relationships, the interference was limited. The court considered the arrangements to maintain friendships, the provision of alternative placements, the modernisation policy, limited resources, the possibility of future relationships and the authority’s margin of discretion. The decision pursued a legitimate aim and struck a fair and proportionate balance. There was no breach of Article 8, and it was unnecessary to determine Article 14.
5. The application for judicial review was dismissed. Permission was granted in respect of the additional statutory arguments raised at the hearing. There was no order as to costs.

First-instance judicial review proceedings. Wilkie J had granted permission principally on the Article 8 ground and refused permission on other grounds. Mr Justice Newman heard the renewed and additional arguments and dismissed the claim.