R (LH) v Shropshire Council

The Court of Appeal held that, although there is no statutory duty to consult before closing a day centre, the common law requires a local authority to consult affected users and carers before withdrawing or substantially changing a public benefit. The authority must consult on a sufficiently concrete proposal and give affected persons a real opportunity to make representations; generic consultation about a reconfiguration of services is not necessarily sufficient to discharge that duty in relation to the closure of a particular centre. The court further held that there was no separate breach of the Public Sector Equality Duty in section 149 of the Equality Act 2010 beyond the failure to consult. Because the centre had already closed and staff dispersed, the appropriate remedy was a formal declaration that the authority had acted unlawfully in failing to consult, not quashing of the decision or a mandatory order.

Background and parties: LH, a 63 year old with a learning disability who used Hartleys Day Centre in Shrewsbury, challenged Shropshire Council's decision to close that centre. The claim alleged failure to consult affected users and carers and failure to comply with the Public Sector Equality Duty (PSED) under section 149 of the Equality Act 2010. The decision under challenge arose from the Council's reconfiguration of adult day services and a move towards personalised budgets.

Procedural history: The High Court (Administrative Court, HHJ Sycamore) dismissed the challenge. The claimant obtained permission to appeal and the matter came before the Court of Appeal.

Nature of the claim and relief sought: Judicial review was sought of the decision to close Hartleys on grounds of procedural unfairness (failure to consult properly) and breach of the PSED. Remedies sought included quashing the decision and a mandatory requirement to re-open consultation on Hartleys.

Issues framed: (i) Whether the Council's prior, wide-ranging consultations about a county-wide reconfiguration were sufficient, or whether fairness required a specific consultation about the proposed closure of Hartleys; (ii) whether the Council failed to have "due regard" under section 149 of the Equality Act 2010; and (iii) what relief was appropriate where the centre had in fact closed prior to the appeal determination.

Facts and evidence: The Council carried out extensive consultations in 2011 and 2012 about personalisation of adult day services and signalled that fewer building-based day centres might result. A Day Service Transformation Plan listed centres to be reconfigured and designated Hartleys as ceasing to provide day services. An Equality Impact Needs Assessment graded the impact as "Medium." Hartleys closed and staff dispersed before the appeal hearing.

Court's reasoning: The court treated the duty to consult as arising from the interest protected by procedural fairness and applied authorities on consultation (including the Devon/County Durham decisions and the Gunning principles). It concluded there was no principled distinction between closure of a residential home and closure of a day centre for these purposes: where an authority decides to withdraw a service that constitutes a benefit to users, fairness may require consultation specifically directed to the proposed closure. The court rejected the Council's submission that its chosen method of generic consultation could be immune from scrutiny except on Wednesbury grounds, holding that whether the adopted procedure was fair is a question for the court. On the PSED point the court accepted the Council had considered equality issues via the EINA and that no further breach was shown beyond the consultation failure.

Disposition: The Court of Appeal allowed the appeal, declared that the Council had acted unlawfully in failing to consult Hartleys users and carers before deciding to close the centre, but declined to quash the decision or order re-consultation given the closure had already occurred; the court also made no order on the parties' applications to adduce further evidence.

Appeal allowed. The Court of Appeal held that the Council's failure to consult the users of Hartleys Day Centre and their carers before deciding to close the centre breached the common law duty of procedural fairness. The court rejected a separate breach of the Public Sector Equality Duty. Because the centre had closed and staff dispersed, the appropriate remedy was a formal declaration of unlawfulness rather than quashing or an order requiring re-consultation.

Appeal from the High Court, Queen's Bench Division (Administrative Court), His Honour Judge Sycamore ([2013] EWHC 4222 (Admin)). Permission to appeal was granted (referral to Maurice Kay LJ is mentioned in the judgment). The appeal was heard by the Court of Appeal, which allowed the appeal ([2014] EWCA Civ 404).