Council’s decision to close elderly care home not unlawful

2 October 2014 by Rosalind English

Karia, R (on the application of) v Leicester City Council (Sir Stephen Silber, acting as High Court Judge)  [2014] EWHC 3105 (Admin) (30 September 2014)- read judgment

In a robust judgment Sir Stephen Silber has asserted that neither the ordinary laws of judicial review, nor the Equality Act nor the Human Rights Act require the courts to micro-manage the decisions of public authorities. Indeed the latter two statutory powers are not designed as a back door into a merits review of a decision that is restricted to the court’s review of the legality of a public sector decision.

Background facts and law

The claimant, a 101 year old woman of Gujarati descent, challenged the decision to close the care home which she has occupied since 1999. Her grounds of challenge were threefold:

1. that the Council had failed to take account of material issues of fact relating to the present and future levels of demand for residential care one provision

2. that it had reached its decision without due regard to the need under the Equality Act 2010 to avoid unlawful discrimination in the provision of services

3. and it had failed to take into account the impact of the closure on the claimant’s Article 8 rights

She also complained that she had a legitimate expectation of a home for life at Herrick Lodge and that the Council had not considered whether her needs could be met in alternative placements.

Although the judge was at pains to stress that as this was a judicial review application, it was not for him to assess the merits of the Council’s decision, merely its legality. Having done so, he concluded that the Council had not acted irrationally, nor had it  paid due regard to the need to advance equality of opportunity.

It is not for the Court to determine whether proper weight has been given to a factor where as here there has been proper appreciation of the potential impact of the decision on equality issues.

Reasoning behind the decision

The judge took note of the fact that Herrick Lodge made special dietary and cultural provision for its Gujarati residents. Both the carers at Herrick Lodge and the other residents speak Gujarati. It is located among the Indian community in Leicester, which is an area where Gujarati is predominantly spoken.

On the other hand, in the process of reaching the decision to close the eight homes in question, the councillor in question had explained that places in these homes cost £229 more per person per week compared to a home in the independent or voluntary sector. The eight homes, which included Herrick Lodge, were not fully occupied, which meant that the Council lost money. Other reasons included evidence that “older people preferred to remain in their own homes with community based support, such as home care, and when older people can no longer live in their own homes, they often need nursing care, which the Council cannot legally provide. For these reasons and others, the demand for residential care in Elderly Person’s Homes provided by the Council is falling.”

1. The Tameside test

The thrust of the claimant’s case was that the Council failed to comply with the Tameside duty which is the principle derived from Lord Diplock’s speech in Secretary of State for Education and Science v Tameside MBC [1977] AC 1014, in which he observed (at page 1065B) that:-

“The question for the court is, did the Secretary of State ask himself the right question and take reasonable steps to acquaint himself with the relevant information to enable him to answer it correctly?”

This is not an invitation to the court allow decisions to be challenged solely on what are really grounds of a dispute on factual matters. A court should only intervene on Tameside grounds if no reasonable authority could have been satisfied on the basis of the inquiries made that it possessed the information necessary for its decision. The Tameside exercise was, in other words, not applicable to the claimant’s case because the challenge was targeted to the Council’s assessment of future rather than existing facts. Carnwarth LJ set out the relevant principles for setting aside a decision on the basis of a mistake of fact  in E v Secretary of State for the Home Department [2004] QB 1044:

In our view, the time has now come to accept that a mistake of fact giving rise to unfairness is a separate head of challenge in an appeal on a point of law, at least in those statutory contexts where the parties share an interest in co-operating to achieve the correct result.  … Without seeking to lay down a precise code, the ordinary requirements for a finding of unfairness are apparent from the above analysis of CICB. First, there must have been a mistake as to an existing fact, including a mistake as to the availability of evidence on a particular matter. Secondly, the fact or evidence must have been ‘established’, in the sense that it was uncontentious and objectively verifiable. Thirdly, the appellant (or his advisers) must not been have been responsible for the mistake. Fourthly, the mistake must have played a material (not necessarily decisive) part in the Tribunal’s reasoning.

It was argued on behalf of the Council that even if it had made the mistakes alleged by the claimant, they did not constitute errors of law entitling them to obtain an order quashing the decision because the mistakes did not relate to existing facts, but instead they related to the future. The judge was inclined to agree. There was nothing irrational or Wednesbury unreasonable on the Council’s part in taking at face value a nationwide report on the decline in take up of public sector care homes.  The findings of the report were, in the words of Carnwath LJ in E as “‘established’, in the sense that it was “uncontentious and objectively verifiable”.

As for the complaint about the Council failing to address the discrimination issue, once again it did not clear the Wednesbury hurdle.  The judge could not accept the contention that the Council failed to carry out adequate enquiries about alternate arrangements because its councillors did in fact find out that there were adequate and stable provisions available essentially through the Asian Lifestyle homes.

the position that emerges is that the Council was entitled to conclude first, that there was no evidence that Asians or British Asians were under-represented in residential care provisions in Leicester, and second, that a substantial number of Asians or British Asians would prefer rather than to go into residential care to remain with their families or to go into Extracare housing or into Asian Lifestyle homes. No cogent evidence has been adduced to undermine this conclusion.

2. Public Sector Equality Duty under the Equality Act

The claimant’s main argument under this heading was that the Council failed to have due regard to the need to eliminate unlawful indirect discrimination against British Asian residents contrary to section 149(1) (a) of the Equality Act. The judge did not accept this submission. The PSED did not mean that the Court should manipulate the Council’s decision-making process. The vital distinction was that the duty on the decision- maker was not to achieve  a result, but to have due regard to the statutory objectives of the Equality Act. The evidence before the judge in this case was that the councillor concerned  focussed properly on the statutory criteria and put them in the balance before making the decision under attack.

Indeed this was the purpose of her attempts to ensure there were places available in homes in the independent sector which satisfied the culinary and religious demands as well as the linguistic needs of British Asians/Asian residents of Herrick Lodge and which were within easy travelling distance of their friends and relatives.

In any event, the PSED was not introduced by the Equality Act as a “back door by which challenges to the factual merits of the decision may be made” [para 133]. The claimants were, in effect, asking the Court to subject the inquiries made by the Council

to a much more rigorous test than had been laid down in the judgments to which I have referred. Indeed, the Claimant’s case seems to be based on the assumption that the duty of the Council was to achieve a particular result, such as the elimination or reduction of unlawful discrimination but, as I have explained in paragraph 105(a), it is settled law that the PSED is not a duty to achieve a particular result.

3. The claimant’s legitimate expectations

The case for the claimant was that she had a legitimate expectation that she would be able to remain at Herrick Lodge unless and until her needs could no longer be met there or until she failed to make the required individual contribution or her behaviour was unacceptable. These were, it was contended, the only circumstances in which her right to stay in Herrick Lodge could be terminated. So it was said that she had legitimate substantive expectation that she could remain there as long as none of those events had occurred.

But substantive legitimate expectation remains a contentious ground of entitlement since the 1990s and still requires as a minimum an undertaking which is “clear, unambiguous and devoid of relevant qualification” Bingham LJ in R v Inland Revenue Comrs, ex parte MFK Underwriting Agents Ltd [1990] 1 WLR 1545.

Even if there was a form of legitimate expectation, then, as I will now explain, the Claimant’s case cannot succeed because it could be, and indeed, would be defeated by an overriding interest.

4. Likely future breach of positive obligations arising under Article 8 ECHR

The case for the claimant was essentially that the Council did not take the proportionality of closure into account and, in particular, the adverse impact of closure on the claimant and her fellow Asians and “a decision to move the Claimant might itself breach Article 8 before making the decision to close Herrick Lodge, and second, that the justification evidence introduced after the institution of these proceedings could not assist the Council”. This was in essence the same challenge as the one taken under the Equality Act, and the answer from the judge was the same: the steps the Council took to ensure that there would be places to which the claimant could be moved at which she would be served with good quality Gujarati food, where there would be Gujarati-speaking social workers and care workers, where she would have easy access to Gujarati temples, and where she could be visited with ease by her family, were steps which showed that the decision had been carried out with respect to proportionality.

A further reason why this ground failed was that it was “premature” to contend that the claimant’s Article 8 rights would be or might be infringed as those issues can only be decided if and when the claimant has to move.  Where a breach of Article 8 is alleged, the question is not whether the decision-maker has properly considered the matter but whether in the Court’s own view a breach has occurred.

In this case, it is clear that there has not yet been a breach of the Claimant’s Article 8 rights as she has not been moved or been told when or to which place she will have to move. There might not be a breach of those rights, and indeed whether there will be a breach will depend on what happens to the Claimant if and when Herrick Lodge is actually closed and, more particularly, the separate decision is made as to how and where she is given accommodation and the nature of the facilities available there. So any contention that the Claimant’s Article 8 rights have been infringed or might be infringed must be rejected.

Related posts:

• Courts reluctant to intervene over care for elderly and disabled
• Human rights – coming to a private care home for you?
• Moving 106 year old from care home not a breach of human rights

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