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

A local authority deciding to close a service must ask the right question and take reasonable steps to obtain the information needed to answer it rationally. The authority need not normally reassess every user’s needs or identify every alternative placement before deciding to close a facility. The extent of any necessary investigation depends on the statutory duties, the nature of the services, the users’ needs, the proposed alternatives and the timing of implementation.

Where the authority has undertaken to continue meeting assessed needs by a range of alternative arrangements, the question is whether it has sufficient information to be reasonably confident that those needs are likely to be met. On the evidence, Brent satisfied that requirement. The irrationality and equality-duty challenges therefore failed.

The claimant was the mother of a severely disabled child receiving short-break respite care at Crawford Avenue, a residential unit operated by Brent for children with challenging behavioural needs. In April 2010 the council had planned to replace Crawford Avenue and Clement Close with a new facility at the Village School in 2012. In May 2011, because of budgetary pressures, the Executive decided to close Crawford Avenue earlier and restructure Clement Close.

The claimant challenged the decision by judicial review. The surviving grounds alleged irrationality and breach of Equality Act 2010, section 149, principally because the council had not obtained sufficient information about alternative provision. A further proposed challenge concerned implementation before Clement Close had been refurbished and assessed as suitable. The central issue was whether the council had taken reasonable steps to inform itself before accelerating the closure.

1. Permission and delay. Permission was granted to amend the claim to include the irrationality and alternative section 149 grounds. The late application to challenge the later implementation decision was refused because the council had insufficient notice and would be unfairly prejudiced in responding to a new decision.
2. The governing rationality test. Applying Secretary of State for Education v Tameside MBC [1977] AC 1014, the court had to identify the right question for the decision-maker and ask whether reasonable steps had been taken to obtain the information necessary to answer it correctly. This requirement applies generally. It does not require the court to substitute its judgment for that of the public authority.
3. The relevant question was whether, if Crawford Avenue closed early, Brent was likely to be able to meet by alternative means the assessed needs of those existing users who remained eligible for short-break care. The question was broader than whether every user could be accommodated at Clement Close. The council could lawfully use Clement Close, direct payments, care at home, foster care and private or out-of-borough residential provision.
4. The court rejected the submission that individual reassessments or detailed placement decisions were necessarily required before closure. The issue was fact-sensitive. Relevant considerations included the statutory duties, whether needs could only be met at specified alternatives, whether closure implied a transfer to specified facilities, the period before alternative provision was needed, the severity and complexity of users’ needs, and the bespoke nature of the existing service.
5. Brent had considered Clement Close’s suitability, required adaptations and staff training, capacity, likely demand, direct-payment uptake, private-sector provision and emergency placements. Although it could not guarantee sufficient places for every existing user, it had reasonable confidence that most needs would be met and that any residual demand could be addressed by other lawful means. The evidence did not establish a breach of the Tameside obligation or exceptional circumstances requiring prior individual assessments.
6. The irrationality challenge therefore failed. The section 149 challenge, being based on the same reasoning, also failed. The claim against the early closure was dismissed. Permission to add the challenge to implementation was refused.

This was a first-instance judicial review in the Administrative Court. The council’s Executive decided on 23 May 2011 to close Crawford Avenue early. The decision was called in by the Overview and Scrutiny Committee, which on 8 June 2011 declined to recommend retention until the Village School opened. Collins J granted permission for judicial review and interim relief on 6 September 2011. Stadlen J dismissed the substantive challenge and refused permission to add the later implementation challenge.