With the country continuing to face an eye-watering deficit of some £120bn, local authority budget cuts are inevitable. But while councils do what they can to dull the pain, those affected must often feel like they are being offered aspirin to ease amputation. And that will often prompt them to litigate in the frequently forlorn hope of reversing relevant cuts.
Judicial review is the applicable legal mechanism. This enables the courts to review the lawfulness of the process by which decisions are made (but, significantly, not the substance of those decisions). For public authority decisions are the province of those with the legal responsibility to take them. The sole function of the court is to ensure that such decisions are taken lawfully. Consequently, attacks on the substance of decisions considered unpalatable by claimants will often seem to be shoehorned into complaints about process.
Such seemed to be so in a recent challenge to a decision taken by Worcestershire County Council on 8 November 2012. This was the focus of R (D) v Worcestershire County Council  EWHC 2490 (Admin), for which judgment was given on
9 August 2013 by Mr Justice Hickinbottom (pictured). The council decided that in the absence of exceptional circumstances, the maximum weekly expenditure on care in the community for an adult aged under 65 will be ‘no more than the net weekly cost of a care home placement that could be commissioned to meet the individual’s assessed eligible needs’.
The claimant suffers from a variety of different medical conditions. His mother, who was both his primary carer and litigation friend, was concerned to ensure that her son (who will turn 18 next year) has appropriate care as he enters adulthood. These concerns were compounded by the mother’s recent cancer diagnosis. Although those submitting statements supporting the claimant were similarly concerned about the substance of the policy, they made no criticisms of the adoption processes.
However, as the court noted, the two challenge grounds were in fact procedural. These were that in adopting the policy the council: ‘(i) used a consultation process that was materially defective, notably in that it failed to provide consultees with sufficient information to enable them to make a sufficiently informed response to the proposal; and (ii) failed to comply with its public sector equality duty (PSED) under section 149 of the Equality Act 2010’. Both grounds were dismissed by Hickinbottom J in a detailed and informative judgment.
In summary (as Rix LJ noted in R (McDonald) v Royal London Borough of Kensington and Chelsea  EWCA Civ 1109) section 29 of the National Assistance Act 1948, section 2(1)(a) of the Chronically Sick and Disabled Persons Act 1970 and section 47 of the National Health Service and Community Care Act 1990 ‘… require a local authority to assess needs, then decide by reference to such an assessment whether the provision of relevant services is called for… then to make arrangements for the provision of services which have been decided upon as being called for’.
Section 7(1) of the Local Authority Social Services Act 1970 enables the secretary of state for health to issue guidance to local authorities which they must follow in the absence of clear and adequate reasons otherwise. Case law and guidance indicates that: (i) in complying with relevant statutory obligations authorities may take into account available resources since the public purse is not bottomless; (ii) once an authority has decided that an individual has eligible needs it has an absolute duty to make arrangements and provide the individual with the services or personal budget to meet those needs, but subject to a very wide discretion as to how to do so; and (iv) while an authority must take account of a service user’s preferences as to outcomes and the ways in which his or her eligible needs may be met, the authority is entitled to have regard to resources.
As part of the decision process, the council had issued a consultation document confirming the policy objectives of supporting users so as to reflect their preferences and desired outcomes but within the parameters noted above, that is the cost of community care offered to those under 65 is not to exceed the cost of relevant residential care. The council had also produced an Equality Impact Assessment (EIA) Screening Report which noted that the policy involved a significant reduction of resources which may in some cases reduce the cost of relevant care and support packages.
As the court noted, it was clear at the time of the decision meeting of 8 November 2012 that ‘… the cabinet well understood that the proposed policy sought to balance the council’s policy objectives of supporting disabled people to live full and independent lives within their local communities, and its obligations in relation to public expenditure; the policy sacrificing choice and control by service users to some degree, in favour of reducing public expenditure’. For that ‘was its very purpose’.
The law on consultation was classically summarised in R (Coughlan) v North & East Devon Health Authority  EWCA Civ 1871: ‘… whether or not consultation of interested parties and the public is a legal requirement, if it is embarked upon it must be carried out properly. To be proper, consultation must be undertaken at a time when proposals are still at a formative stage; it must include sufficient reasons for particular proposals to allow those consulted to give intelligent consideration and an intelligent response; adequate time must be given for this purpose; and the product of consultation must be conscientiously taken into account when the ultimate decision is taken’.
In the present circumstances, although the claimant contended that the consultation had failed to identify the consequences for those who were affected, that submission was made on the rejected premise that some half of those who fell within the scope of the policy would have to choose between staying at home and not having all their eligible needs met, or moving into a residential home. As Hickinbottom J indicated, for ‘some, no doubt, their eventual care package will contain elements that are not their first choice’. However, ‘that was made very clear in the consultation documents’ and ‘unhappy as it might be, it was this trade-off of preferences and choice for service users on the one hand, and cost saving on the other, which is at the very heart of the policy, and was at the very heart of the consultation.’ In the circumstances the consultation was ‘not deficient at all’.
Section 149(1) of the Equality Act 2010 provides that a public authority must, in the exercise of its functions, have
due regard to the need (a) to eliminate discrimination, harassment, victimisation and any other conduct that is prohibited by or under this act; (b) to advance equality of opportunity between persons who share a relevant protected characteristic and persons who do not share it; and (c) to foster good relations between persons who share a relevant protected characteristic and persons who do not share it. Per section 149(7) the relevant protected characteristics are: age, disability, gender reassignment, pregnancy and maternity, race, religion or belief, sex and sexual orientation.
Hickinbottom J summarised the multifarious strands of the law including that: (i) ‘due regard’ is that which is ‘merely proper or appropriate regard in all the circumstances’; (ii) determining whether ‘due regard’ has been paid is fact-sensitive in the light of all material circumstances and applies to substance not form; (iii) ‘due regard’ requires a conscious directing of the mind to the obligations with ‘rigour and an open mind’; and (iv) is ‘an essential preliminary’ to any important policy decision not a ‘rearguard action following a concluded decision’. Also, per Elias LJ in R (Hurley and Moore) v Secretary of State for Business Innovation and Skills  EWHC 201 (Admin), due regard ‘requires the court to consider whether the decision-maker approached the question correctly, in line with the law set out above; but, if he does so, the weight given to the consideration is entirely a matter for him’.
An EIA is also not a statutory requirement but merely a tool whereby decision-makers might inform their efforts to comply with the duty. It is therefore ‘wrong to subject it to minute forensic or exegetical analysis’. Consequently, Hickinbottom J was unpersuaded that the council’s decision-making body did not have before them sufficient information to enable them to have due regard to the need to advance equality of opportunity. And in the circumstances he had no doubt that the council did have due regard to its PSED and in particular to the need to advance equality of opportunity.
So although, as Hickinbottom J noted, one ‘can but have sympathy for those with real needs whose state support is reduced, reducing with it their choices and no doubt to an extent their quality of life’, nevertheless the two heads of claim failed since the council’s approach both to consultation and the public sector equality duty were both lawful.
This case usefully summarises and applies relevant law on both consultation and the PSED. It also illustrates an approach that acknowledges the stark financial reality faced by local authorities as they struggle to balance resources with meeting statutory requirements in as user-sensitive, painless and effective a manner as possible.
Dr Nicholas Dobson is a consultant at Freeth Cartwright