W, R (on the application of) v Croydon Borough Council

A local authority may decide that accommodation is unsuitable or excessively costly, but consultation must occur while the proposal remains genuinely formative. Those consulted must receive sufficient information and time to give an intelligent response before the decision is taken. Where a person lacks capacity, the authority must consider the statutory best-interests factors and consult those caring for or interested in the person’s welfare. Consultation is not lawful where material assessments are withheld until shortly before the meeting, relevant participants are absent, and later responses are received only after the decision has been closed. A lawful consultation may influence the authority’s provisional view, even though it need not ultimately accept the consultees’ opinions.

The claimant was a young adult with autism, severe learning disabilities and no capacity to decide where he should live. The defendant local authority had funded his placement at Hesley Village since 2005. Following assessments in March and June 2010, the authority concluded that the placement was too isolated, insufficiently supportive of independence and substantially more expensive than alternatives.

The claimant’s parents challenged the decision to terminate the placement and move him to supported living. They alleged inadequate consultation with them and with Hesley Village, and relied on the statutory best-interests and choice-of-accommodation framework. The central issue was whether the consultation had been sufficiently informed and undertaken before the decision was made.

1. Claim allowed. The decision made on 29 July or 6 August 2010 to terminate the claimant’s placement at Hesley Village was quashed. The claimant’s publicly funded costs were to be assessed, and the costs of the action were to be assessed if not agreed.
2. The authority had a firm but provisional view that Hesley Village was unsuitable. The judge accepted that the decision had not been taken before the best-interests meeting began. The authority was entitled in principle to give substantial weight to cost and to its assessment of the placement’s suitability.
3. That did not make the consultation lawful. The parents had not been involved in the earlier assessments and were given the March and June assessments only shortly before the meeting. They therefore lacked sufficient time to consider and answer the proposal that the placement should end. Their detailed response on 12 August came after the decision had been taken.
4. Hesley Village was also a person whose views were valuable under Mental Capacity Act 2005, section 4. Its absence from the meeting resulted from a communication failure, but the authority should have obtained and considered its views before terminating the placement. The deficiencies in consultation made it more difficult for the authority to reopen its mind.
5. The requirement of consultation was therefore breached. Consultation must take place when proposals are still formative, with sufficient reasons and information to permit intelligent consideration and response. The authority could retake the decision after proper consultation, including consideration of the views of the parents and service provider.