RP, R (on the application of) v London Borough of Brent

The claimant sought judicial review of the council's Executive decision of 23 May 2011 to bring forward the closure of the Crawford Avenue short breaks unit. The principal legal challenge advanced at the substantive hearing was that the decision was irrational because the council had not taken reasonable steps to inform itself whether there was sufficient alternative short breaks provision to continue to meet the assessed needs of current service users. The claimant also alleged breach of the public sector equality duty in section 149 of the Equality Act 2010 and relied on duties under the Children Act 1989 (section 17 and Schedule 2, paragraph 6) and the Breaks for Carers of Disabled Children Regulations.

The judge analysed whether the decision-maker had asked the right question and taken reasonable steps to obtain the relevant information (the Tameside/Tameside-derived Wednesbury test). He held that, applying that test, the claimant had not shown on the balance of probabilities that the council lacked sufficient information to form a reasonable expectation that most service users’ assessed needs could be met by a combination of refurbished in‑house provision at Clement Close, direct payments, domiciliary care, specialist foster placements or out‑of‑borough provision. The irrationality ground therefore failed and, because the equality claim was based on the same factual shortcoming, it likewise failed. The judge considered the council’s delay and prejudice arguments but concluded they did not require denial of relief; however a late, separate challenge to the council’s implementation decision was refused for want of timely notice and prejudice to the council.

The claimant, mother of a severely disabled child who used the Crawford Avenue short breaks unit, sought judicial review of Brent Council’s decision to close Crawford Avenue earlier than previously planned and to consolidate provision at Clement Close pending opening of a new unit at the Village School. The council’s reported justification included budgetary savings and alignment with longer‑term commissioning policy favouring direct payments and community options. The closure decision was taken by the Executive on 23 May 2011 and noted by the Overview and Scrutiny Committee on 8 June 2011; the claim was issued in August 2011 and permission and interim relief were granted by Collins J in September 2011.

The claimant advanced three grounds originally: (1) defective consultation, (2) breach of section 149 Equality Act 2010 and (3) breach of Article 8. At the substantive hearing the claim focussed on an additional ground served in September 2011: irrationality / breach of section 149 in failing to obtain information concerning alternative provision of short breaks care. The claimant alleged the Executive made two unsupported assumptions: that (i) closure would not reduce the hours of short breaks available to current users and (ii) alternative means (Clement Close after adaptation, direct payments, foster placements, out‑of‑borough providers) would be available and suitable. The claimant also sought permission to challenge a later implementation decision to transfer users to Clement Close before refurbishment and assessment of alternatives.

The court considered the statutory framework (Children Act 1989 duties including section 17 and Schedule 2 paragraph 6; Breaks for Carers Regulations; section 20 emergencies) and applicable public law principles (Wednesbury/Tameside rationality, the Court of Appeal’s guidance in Coughlan and related authority on when detailed individual assessments will be required before a closure decision). The judge examined the material before the Executive and subsequent evidence and Part 18 responses about capacity, refurbishment and likely take up of direct payments and private provision, and the council officers’ professional judgments and risk assessment as to the suitability of Clement Close after adaptation.

The court concluded that the proper Tameside/Wednesbury question was whether the decision‑maker had asked the right question about alternative provision and had taken reasonable steps to acquaint itself with information sufficient to answer it. On the facts the council had obtained and relied upon a health and safety risk assessment, estimates of capacity, information about private and voluntary providers and anticipated direct payments take up, and professional officers judged that most users’ needs would be met by a combination of measures. The claimant did not prove on the balance of probabilities that the Executive lacked sufficient information to make the decision rational. The irrationality challenge therefore failed, and the linked section 149 challenge failed as it relied on the same factual defect. A late, separate challenge to the implementation decision was refused because of prejudice and inadequate notice.

The claim is dismissed. The court held that, applying the Tameside/Wednesbury standard, the council had asked the right question and had taken reasonable steps to acquaint itself with relevant information about alternative provision (refurbishment of Clement Close, private/out‑of‑borough providers, and increasing direct payments). The claimant did not establish on the balance of probabilities that the Executive’s decision to close Crawford Avenue prematurely was irrational. The related Equality Act section 149 challenge failed for the same reasons. A late challenge to the implementation decision was refused for delay and prejudice.