Mr Justice Wyn Williams:
Introduction
- SL is a woman aged 35 (her date of birth is 28 October 1974). She came to the United Kingdom in 1988 from Uganda when she was 12 or 13. She suffers from epilepsy and she has learning difficulties.
- When SL was still a teenager the Defendant placed her at St Philip's School in Kingston. That is a school which caters for children with learning disabilities. Thereafter, the Defendant placed her at a boarding school known as St Piers College in Lingfield. That establishment is now the National Centre for Young People with epilepsy.
- In August 1995, when SL was nearly 21, the Defendant arranged a placement for her at a care home called Stanley Maude House, Chalfont St Peter, Gerards Cross, Buckinghamshire. This accommodation is owned and operated by the Second Interested Party (hereinafter referred to as "NSE") and it is part of a large centre (hereinafter referred to as "the NSE centre") at which there are other care homes, a day centre and other facilities for persons suffering with epilepsy and related conditions. The NSE has provided services to persons suffering from epilepsy at this centre since 1894.
- When placing SL at Stanley Maude House the Defendant exercised its power under section 21 National Assistance Act 1948 (hereinafter referred to as "the 1948 Act"), as to which see below.
- Between August 1995 and a date in 2004 SL lived at Stanley Maude House. On or about 2 June 2004 she moved from Stanley Maude House to another care home at the NSE centre, Hampshire House. That move was considered by the Defendant to be one which would facilitate greater independence on the part of SL.
- As was to be expected, the care needs of SL were reviewed periodically by the Defendant. In a witness statement dated 10 May 2010 made by Mr. Glen Mills, the Defendant's Head of Learning Disability Services, he says that there was an annual review. I have no reason to doubt what he says.
- On 19 January 2009 an annual review took place. It was attended by SL, her mother, the manager of Hampshire House, 3 officers of the NSE and Ms Sally Treloar, a social worker employed by the Defendant. Ms Treloar, I am satisfied, had a great deal of experience and was very well acquainted with the needs of SL. She made an assessment of the needs of SL and she made a written record of that assessment. In the written record, SL is recorded as saying that she wished to move "into supported living with friends."
- The evidence adduced by Mr. Mills is to the effect that SL had visited a bungalow situated about 2 or 3 miles from the NSE centre about a week before this review meeting took place. She had become excited about a possible move to the bungalow although she was also apprehensive. The suggestion being considered at the review meeting was that SL would move to the bungalow with 2 other persons. Ms Treloar clearly supported such a placement and there is no reason to suppose that anyone at the review meeting opposed the move.
- On 5 May 2009 a meeting was convened to discuss "what sort of funding SL needs to move on to the [bungalow]." I deal more fully with one aspect of what was discussed at the meeting later in this judgment.
- On 28 September 2009 SL moved from Hampshire House into the bungalow. It is owned by Zetetick Housing ("Zetetick"), a registered charity. SL occupies it under the terms of an assured short hold tenancy.
- Following the move from Hampshire House to the bungalow the NSE continued to provide for the care needs of SL through its domiciliary care agency STEPS. Initially, the Defendant funded that care.
- By letter dated 10 November 2009 the Defendant wrote to the Claimant in the following terms:-
"I am writing with reference to the above named person, who has been receiving the support of our Learning Disability Service. Whilst this Council has been the responsible authority for this individual in the past, she now lives in a supported, tenancy-based service in your area. Under the Ordinary Residence Guidance, when a person moves into their own home, or takes up a tenancy in a local authority area, they become an ordinary resident of that area.
Therefore, according to the guidance, we believe SL should now become the responsibility of your authority. In order for our Learning Disability team to liaise with yours to transfer SL to your authority, I would propose that the actual transfer of Care Management and funding responsibility happens on January 1st 2010.
In order to progress this issue, I would be grateful if you could confirm your agreement to the transfer of responsibility, and inform our Head of Learning Disability, Glen Mills, of the relevant individual in your authority for our team to contact…."
- On 2 December 2009 the Claimant replied in the following terms:-
"I have received a letter from your Director dated 10 November asking that Buckinghamshire County Council take up the funding and care management responsibility for your client SL from 1 January 2010. We are unable to agree to this request for the following reasons.
I am concerned to note that SL has apparently already moved from residential accommodation to independent living arrangements in Buckinghamshire that involves a tenancy agreement. I refer to the Local Government Circular LAC(93)7 which sets out the law in relation to ordinary residents, in relation to adults placed by one local authority in the area of another local authority.
Paragraphs 7 and 8 of LAC(93)7 states;
"7. Where following an assessment, a local authority arranges a placement in a private or voluntary home in another local authority's area or in a home provided by another local authority the placing authority will normally retain for that person the same responsibility that it has for someone living in its own area. The person so placed will not as a general rule become ordinarily resident in the other local authority's area. If subsequently, by private arrangement, the person moves he may, depending on the specific circumstances, become ordinarily resident in the area of the local authority where he has chosen to live.
8. A local authority shall not place a person for which they are financially responsible in accommodation provided by a private proprietor or voluntary organisation without first informing the other authority. They should also ensure that satisfactory arrangements are made before the placement for any necessary support services, such as day care, and for periodic reviews, and that there are clear agreements about the financing of all aspects of the individual's care. The local authority responsible for the placement may negotiate for these services to be provided by the host authority and reimburse the costs. Similarly, except in an emergency situation, no host authority should alter the accommodation or services provided for that person to a significant degree without consulting in advance the responsible authority. It is recognised that there will be some circumstances where an urgent placement is necessary and prior consultation would not be possible. In such cases the necessary consultation shall take place immediately after the placement has been made."
There has been no prior communication with Buckinghamshire County Council that we are aware of with regard to the arrangements for your client SL, and as such the above Local Authority Guidance has not been complied with. It is vitally important that the actions taken by your authority do not adversely affect the continuity of provision to SL.
We would appreciate knowing from you whether you have ensured that the proposed new placement and tenancy agreement is stable and sustainable and not likely to be subject to housing benefit rent restriction which would place undue financial pressure on SL.
The reason I ask this is because the District Councils in Buckinghamshire are restricting housing benefit and there is then a shortfall in rent. This clearly means that if the client is not able to make their full rent payment then they are in very real danger of eviction. How have you assessed this risk in SL's case?
In order for Buckinghamshire to respond further, copies of the most recent care assessment and care plan and information in relation to the stability and sustainability of the tenancy are essential."
- The Defendant responded by email sent on 15 January 2010. The email provided some information about SL's background and the tenancy; the Defendant also attached two care plans to the email, one of January 2009 the other of November 2009. The email concluded by suggesting that the transfer of funding and responsibility for SL should take place on 1 March 2010. The Claimant's response was a pre-action protocol letter dated 19 January 2010. Despite a detailed response to that letter dated 29 January 2010 these proceedings were commenced by a claim form issued on 9 February 2010.
- In the claim form the Claimant alleges that the Defendant's decision to move SL from residential accommodation at Hampshire House into the bungalow was unlawful. The relief sought in the claim form is twofold; first, a declaration that the decision to move SL was unlawful; second a declaration that the Defendant should indemnify the Claimant for any expense it has incurred or will incur in consequence of the Defendant's unlawful decision.
- The skeleton argument presented on behalf of the Claimant's legal team suggests that the following issues arise for my decision:-
a) whether the Defendant breached its duty to act fairly by failing to notify the Claimant of SL's proposed move and/or failing to consult with the Claimant and/or failing to afford the Claimant an opportunity to participate in the decision-making process before the proposed move was finally decided upon;
b) whether the Defendant acted irrationally by causing SL to accept a tenancy which is not affordable and unviable and/or whether the Defendant failed properly to inform itself as to or take into account relevant considerations relating to the housing benefit situation;
c) whether the Defendant acted irrationally and/or failed to take into account relevant considerations and/or failed properly to consider whether to exercise a statutory discretion in failing to consider whether it was appropriate for SL to continue to reside in accommodation falling within section 21 National Assistance Act 1948;
d) whether section 32 of the National Assistance Act 1948 is a bar to the Claimant taking judicial review proceedings.
- In the event the issue relating to section 32 of the National Assistance Act 1948 was not pursued at the hearing before me. I need say nothing more about it.
Issue (a)
- The Defendant did not notify the Claimant of SL's move to the bungalow in advance of the move taking place; further it did not consult with the Defendant about the proposed move or afford it an opportunity to participate in the decision relating to the move. Was it under a legal duty to do any of those things?
- The Claimant submits that such duties arose because each was a component of a broader duty imposed upon the Defendant to act fairly towards the Claimant when it engaged in the assessment and decision-making process which resulted in the decision that SL should move from Hampshire House to the bungalow.
- Mr. Knafler QC on behalf of the Defendant disputes that the Defendant was under a duty to act fairly towards the Claimant when engaged in the assessment or decision-making process involving SL. Ms Richards on behalf of SL and Ms Grey on behalf of NSE broadly support the stance adopted on behalf of the Defendant. Mr. Auburn, on behalf of the Third Second Interested Party, does not advance a definitive position one way or the other. Rather, he is content to draw my attention to certain features in this case which, he submits, should be considered carefully before a decision is reached about the existence or non-existence of the duty for which the Claimant contends.
- Mr Clayton QC submits that the duty to act fairly towards the Claimant arises by virtue of principles of the common law which are authoritatively set out in the speech of Lord Mustill in R v Secretary of State for the Home Department ex parte Doody [1994] 1AC 531 - see page 560 D to G.
"What does fairness require in the present case? My, Lords, I think it unnecessary to refer by name or quote from, any of the often-cited authorities in which the courts have explained what is essentially an intuitive judgment. They are far too well known. From them, I derive that (1) where an Act of Parliament confers an administrative power there is a presumption that it will be exercised in a manner which is fair in all the circumstances. (2) The standards of fairness are not immutable. They may change with the passage of time, both in the general and in their application to decisions of a particular type. (3) The principles of fairness are not to be applied by rote identically in every situation. What fairness demands is dependent on the context of the decision, and this is to be taken into account in all its aspects. (4) An essential feature of the context is the statute which creates the discretion, as regards both its language and the shape of the legal and administrative system within which the decision is taken. (5) Fairness will very often require that a person who may be adversely affected by the decision will have an opportunity to make representations on his own behalf either before the decision is taken with a view to producing a favourable result; or after it is taken, with a view to procuring its modification; or both. (6) Since the person affected usually cannot make worthwhile representations without knowing what factors may weigh against his interests fairness will very often require that he is informed of the gist of the case which he has to answer."
Doody was concerned with the procedure then in force for fixing the minimum term to be served by persons sentenced to a mandatory life sentence for murder. Nonetheless there can be no doubt that the principles formulated by Lord Mustill are generally applicable when a court has to consider both whether a duty to act fairly exists and, if so, what is its scope.
- As is established in Doody where an Act of Parliament confers an administrative power upon a person or body there is a presumption that it will be exercised in a manner which is fair in all the circumstances. Ultimately, however, the decision as to whether a duty to act fairly exists depends upon an analysis of a number of considerations. An important feature on any view is the statutory context in which the duty is said to arise. Accordingly, I turn, first, to the statutory provisions which are relevant in this case.
- Section 47 National Health Service & Community Care Act 1990 is in the following terms:-
"(1) Subject to sub-sections (5) and (6) below, where it appears to a local authority that any person for whom they may provide or arrange for the provision of community care services may be in need of any such services, the authority -
(a) shall carry out an assessment of his needs for those services; and
(b) having regard to the results of that assessment, shall then decide whether his needs call for provision by them of any such services.
(2) ….
(3) If at any time during the assessment of the needs of any person under sub-section (1)(a) above, it appears to a local authority –
(a) that there may be a need for the provision to that person by such primary care trust or health authority as may be determined in accordance with regulations of any services under the National Health Services Act 2006 or the National Health Service (Wales) Act 2006, or
(b) that there may be a need for the provision to him of any services which fall within the functions of a local housing authority (within the meaning of the Housing Act 1985) which is not the local authority carrying out the assessment,
the local authority shall notify that primary care trust, health authority, or local housing authority and invite them to assist, to such extent as is reasonable in the circumstances, in the making of the assessment; and, in making their decision as to the provision of the services needed for the person in question, the local authority shall take into account any services which are likely to be made available for him by that primary care trust, health authority or local housing authority.
(4) The Secretary of State may give directions as to the manner in which an assessment under this section is to be carried out or the form it is to take but, subject to any such directions under sub-sections (7) below, it shall be carried out in such a manner and take such form as the local authority consider appropriate.
(5) Nothing in this section shall prevent a local authority from temporarily providing or arranging for the provision of community care services for any person without carrying out a prior assessment to his needs in accordance with the proceeding provisions of this section if, in the opinion of the authority, the condition of that person is such that he requires those services as a matter of urgency.
(6) …..
(7) ….."
- On 26 August 2004 the Secretary of State issued The Community Care Assessment Directions 2004. The Directions came into force on 1 September 2004 and apply to every local authority in England. Direction 2 is in the following terms:-
"2 (1) In assessing the needs of a person under section 47(1) of the Act a local authority must comply with paragraphs (2) to (4).
(2) The local authority must consult the person, consider whether the person has any carers and, where they think it appropriate, consult those carers.
(3) The local authority must take all reasonable steps to reach agreement with the person and, where they think it appropriate, any carers of that person, on the community care services which they are considering providing to him to meet his needs.
(4) The local authority must provide information to the person and, where they think it appropriate, any carers of that person, about the amount of the payment (if any) which the person will be liable to make in respect of the community care services which they are considering providing to him."
- It is also necessary to consider sections 21 and 26 of the National Assistance Act 1948. The relevant parts of section 21 are as follows:-
"1) Subject to and in accordance with provisions of this part of this Act, a local authority may with the approval of the Secretary of State, and to such extent as he may direct shall, make arrangements for providing –
a) residential accommodation for persons aged 18 or over who by reason of age, illness, disability or any other circumstances are in need of care and attention which is not otherwise available to them;…..
4) Subject to the provisions of section 26 of this Act accommodation provided by a local authority in the exercise of their functions under this section shall be provided in premises managed by the authority or, to such extent as may be determined in accordance with the arrangements under this section, in such premises managed by another local authority as may be agreed between the two authorities and on such terms, including terms as to reimbursement of expenditure incurred by the said other authority, as may be so agreed.
5) References in this Act to accommodation provided under this Part thereof shall be construed as references to accommodation provided in accordance with this and the five next following sections, and as including board and other services, amenities and requisites provided in connection with the accommodation except where in the opinion of the authority managing the premises their provision in unnecessary.
6) References in this Act to a local authority providing accommodation shall be construed, in any case where a local authority agrees with another local authority for the provision of accommodation in premises managed by the said other authority, as references to the first-mentioned local authority."
- Section 26 provides:-
"(1) Subject to sub-sections (1A) and (1C) below, arrangements under section 21 of this Act may include arrangements made with a voluntary organisation or with any other person who is not a local authority where –
a) that organisation or person manages premises which provide for reward accommodation falling within subsection (1)(a)…… of that section, and
b) the arrangements are for the provision of such accommodation in those premises.
(1A) Arrangements must not be made by virtue of this section for the provision of accommodation together with nursing or personal care for persons as are mentioned in section 3(2) of the Care Standards Act 2000 (Care Homes) unless –
a) the accommodation is to be provided, under the arrangements, in a care home (within the meaning of that Act) which is managed by the organisation or person in question; and
b) that organisation or person is registered under Part (II) of that Act in respect of the home.
(2) Any arrangements made by virtue of this section shall provide for the making by the local authority to the other party thereto of payments in respect of the accommodation provided at such rates as may be determined by or under the arrangements and subject to subsection (3A) below the local authority shall recover from each person for whom accommodation is provided under the arrangements the amount of the refund which he is liable to make in accordance with the following provisions of this section.
(3A) Where accommodation in any premises is provided for any person under arrangements made by virtue of this section and the local authority, the person concerned and the voluntary organisation or other person managing the premises (in this subsection referred to as "the provider") agree that this subsection shall apply –
(a) so long as the person concerned makes the payments for which he is liable under paragraph (b) below, he shall not be liable to make any refund under subsection (3) above and the local authority shall not be liable to make any payment under subsection (2) above in respect of the accommodation provided for him;
(b) the person concerned shall be liable to pay to the provider such sums as he would otherwise (under subsection (3) above) be liable to pay by way of refund to the local authority; and
(c) the local authority shall be liable to pay to the provider the difference between the sums paid by virtue of paragraph (b) above and the payments which, but for paragraph (a) above, the authority would be liable to pay under subsection (2) above."
- Mr Knafler QC submits that section 47 of the 1990 Act is a self-contained code which governs assessments made under the section and decisions made as a consequence of those assessments. He points out that subsection (3) specifically provides for notification of an assessment under section 47 to a primary care trust or health authority if a need is identified for provision of services by either of those bodies of services under the National Health Service Act 2006. Further, notification to a local housing authority is necessary where there may be a need for the provision of services which fall within the functions of such an authority. Not only is there a duty of notification; under subsection (3) the local authority undertaking the assessment shall invite any of those bodies to assist, to such extent as is reasonable in the circumstances, in the making of the assessment if it appears to the local authority that there may be a need for the primary care trust or the health authority or the local housing authority to provide services.
- Mr Knafler QC also draws attention to subsection (4). That subsection empowers the Secretary of State to give directions as to the manner in which an assessment is to be carried out or the form it is to take. This statutory provision would permit the Secretary of State to direct that in appropriate circumstances a local authority should notify another local authority of its ongoing assessment and consult with it about the content of the assessment and/or the decision to be made in consequence of the assessment. No such direction has been given. In contrast, a direction has been issued which provides for consultation with the person who is the subject of an assessment under section 47 and, if the local authority consider it appropriate, with his carers, if any.
- In the light of these statutory provisions Mr Knafler submits that I should interpret section 47 as precluding notification or consultation with anyone who is not specified in the section itself or any direction issued by the Secretary of State pursuant to subsection (4). Inevitably, if there is no duty to notify or consult there can be no duty to permit participation in the decision-making process.
- In support of this submission Mr Knafler also relies upon a principle of construction which is conveniently identified by the Latin phrase "expressio unius est exclusio alterius". The current edition of Bennion's text book Statutory Interpretation explains the principle thus; "no inference is proper if it goes against the express words Parliament has used." In this context Mr. Knafler relies upon a passage in a speech of Lord Bridge of Harwich in Griffiths & Another v Secretary of State for the Environment & Another [1983] 2A.C. 51. In Griffiths one of the issues for debate was whether there was an implied statutory obligation upon the Secretary of State to give notice of his decision on a planning appeal to all Interested Parties. In the course of rejecting that argument Lord Bridge said:-
"Secondly, when one finds in the Act numerous provisions imposing an express obligation to give notice, it is impossible to imply a statutory obligation (as opposed to a duty in the course of good administration) to give notice, where no express obligation is imposed…."
In the instant case, submits Mr Knafler QC, section 47 provides, expressly, for notification and consultation in prescribed circumstances so that there is no room for a wider duty by implication as contended for by the Claimant.
- I acknowledge the force of the submissions. Nonetheless, I am not prepared to hold that, as a matter of interpretation of section 47 alone, Parliament has expressly precluded the duties for which the Claimant contends arising under the common law. In my judgment, clear and precise words to that effect would be necessary before such a conclusion was justified. There are no such words in section 47. There is no inconsistency, necessarily, between section 47, read as a whole, and the duties for which the Claimant contends. The duties which are said to exist by virtue of common law principles can be viewed as being complementary to the express statutory provisions. Further, and conclusively in my judgment, in R(West) v Parole Board [2005] 1WLR 350 Lord Bingham expressed the view that the maxim expressio unius exclusio alterius can seldom, if ever, be enough to exclude the common law rules relating to fairness – see paragraph 29 at page 360 of the report.
- All that said the statutory language certainly does not assist Mr Clayton's argument. Parliament has specified circumstances in which an authority exercising its power under section 47(1) must notify another authority of the exercise of the power and permit the other authority to participate in an assessment (subsection (3)); just as importantly, it has reserved to the Secretary of State a power to make directions which can be used to impose upon a local authority a duty to notify or consult with other local authorities in appropriate circumstances. In my judgment, the express provisions contained within sub-sections (3) and (4) are powerful indicators that the courts should be slow to accept the existence of the duties for which the Claimant contends.
- To repeat, I do not regard these statutory provisions as conclusive. I turn next, therefore, to consider the other factors which bear upon the issue of whether a duty to act fairly arises when a local authority exercises its power under section 47 of the 1990 Act.
- Paragraphs 11 to 13 of the Claimant's skeleton argument is in the following terms:-
"11. [The Claimant] has assessed the cost of transferring community care clients from other authorities to it as being up to £3.05m per annum. Furthermore, it is inevitable that every year a number of new individuals will be moved from the NSE. [The Claimant] has calculated that the cumulative financial liability over a 5 year period for 10 new individuals would be £6.75m. An increase of £3.05m p.a. would have significant budgetary implications for [the Claimant], equating to a Council tax increase of just over 1½%.
12. [The Claimant] is particularly affected by increased expenditure which results from moves from the NSE because it is a "floor authority" for Government funding purposes. Whereas the proportion of Council tax to Government funding for County Councils nationally ranges from 56.5%: 43.5% to 81.3%: 18.7%, the proportion of Council tax to national funding for [the Claimant] is currently 79.3%: 20.7%. It follows that the broad brush submission by [the Defendant] that the financial consequences for [the Claimant] are just "swings and roundabouts" is misconceived and fails to take into account the [the Claimant's] particular circumstances. [The Claimant] is particularly affected by the moves from the NSE because it is an authority which received so little central Government funding.
13. In reality, the practical effect of the NSE's strategy will be that [the Claimant] will have no alternative but to cut services in adult social care. Expenditure of £3m p.a. would require a total budget reduction in the adult social care budget of 2.9%, and there is a real risk that [the Claimant] would have to reduce its eligibility criteria for community care provision from "critical and substantial" to "critical", which means that the community care provision for adults in Buckinghamshire would be very restricted."
- I have no reason to doubt the heartfelt sincerity of these paragraphs. Further I have little doubt that they constitute a powerful motivating factor for this litigation. Yet, by the end of the oral submissions, Mr Clayton QC was forced to accept that such considerations were not proper ones to take into account in determining whether the Defendant should be fixed with a duty of fairness whatever its scope. By the end of the oral submissions, Mr Clayton QC agreed that the particular financial consequences of the decision in this case was a material factor in deciding whether or not a duty of fairness arose but the wider financial considerations attendant upon other potential decisions following assessments under section 47 were not relevant.
- The financial consequences for the Claimant of the decision that SL should move to the bungalow were significant. It is common ground that while SL remained a resident at the NSE centre as a consequence of the Defendant exercising its powers under section 21 of the 1948 Act, the Defendant would be responsible for funding the costs of the accommodation and the care provided to SL. That position arises by virtue of section 24(5) of the 1948 Act. Upon her move to the bungalow, however, SL became ordinarily resident in the Claimant's administrative area; the Defendant was no longer exercising its powers under section 21 and, accordingly, the Claimant became responsible for funding the care needs of SL (subject only to agreement in relation to an appropriate hand over date).
- The fact that a decision may impact adversely upon an individual or body is clearly a factor which should be considered in deciding whether a duty to act fairly towards that individual or body exists. In many factual circumstances the factor may be very important or even determinative. In the context of the instant case, however, I do not consider that this factor can have such significance. I say that for these reasons. An assessment and a decision under section 47 have, as their focus, the individual who is subject to the assessment and decision. It would not be permissible for local authority A, in the process of undertaking an assessment of the needs of a person under section 47 or reaching a decision about how those needs are to be met to take into account the financial consequences of the decision for local authority B. Further if local authority B were notified of the assessment, consulted about it and invited to participate in the decision consequent upon it, it would not be permissible for local authority B to take into account adverse financial consequences to that authority in the event that a particular decision was made. Ms Richards dealt with the "adverse consequences point" succinctly but persuasively in her skeleton argument:-
"As a matter of general principle, the purpose of imposing a duty to afford prior notice of a proposal to a person liable to be directly affected is to enable that person to make representations on their own behalf and to "put their own case"; in other words, to protect and advance their own interests. Once it is accepted (as it must be here) that the Claimant's own interests are irrelevant, and that it is only SL's needs and interests that fall to be considered, the basis for contending that the Claimant should be afforded the opportunity to participate in the decision-making process falls away."
- While I am not prepared to say that the financial impact of a particular decision is wholly irrelevant to the issue of whether a duty of fairness arises in the present context the significance to be attached to the fact of the adverse impact is far less than it is in many other contexts.
- Mr Clayton QC submits that paragraphs 7 and 8 of Local Authority Circular LAC (93)7 also provide powerful support for existence of the duties for which he contends in this case. It is common ground that this circular does not constitute statutory guidance. Nonetheless, subject to its proper interpretation, it is accepted that it is capable of being relevant to the issue of whether a duty of fairness arises.
- The Circular was issued in March 1993. It begins with a Summary which, in my judgment, is important in determining its true scope. The Summary reads:-
"This circular contains guidance on the identification of the ordinary residence of people who require personal social services under the National Assistance Act 1948. The guidance is applicable not only to local authorities' responsibilities for residential and, from 1 April 1993, nursing home care but also for care in other types of residential accommodation provided under section 21 (and section 26) of the National Assistance Act, for instance hostels and group homes. It also covers welfare services provided under section 29 of the National Assistance Act 1948. Reference is also made to the responsibilities of other authorities, the Children Act 1989, and after-care for people who have been detained under the Mental Health Act 1983. It does not apply to the provision of residential accommodation or other services in respect of people aged under 18 as such services cannot be provided under the National Assistance Act.
The purpose of the circular is to clarify where responsibility lays between social services authorities, so that the scope for disputes is reduced. Authorities should note in particular that the provision of services for individuals requiring social services should not be delayed because of uncertainty about which authority is responsible, and when an individual does not appear to have any settled residence, it is the responsibility of the authority of the moment to provide any residential care required to meet their needs……"
- Paragraphs 7 and 8 of the guidance are set out in the Claimant's letter of 2 December 2009 – see paragraph 13 above.
- Mr Clayton QC submits that paragraph 8 is entirely apposite to the facts of the present case. He submits that the Defendant should not have arranged the tenancy between SL and her landlord without first informing the Claimant. Further the Defendant should have ensured that satisfactory arrangements for any necessary support services had been made before the placement was taken up and that there were clear agreements about the financing of all aspects of the individual's care.
- Mr Knafler QC and Ms Grey, in particular, do not accept that paragraph 8 of the Circular was intended to relate to circumstances such as pertain in this case. They draw attention to the fact that the Summary makes it clear that the guidance is applicable in respect of responsibilities which arise under section 21 and 26 of the 1948 Act. They submit that the phrase in paragraph 7 "arranges a placement in a private or voluntary home in another authority's area or in a home provided by another local authority….." relates to the discharge of a function under the 1948 Act and that the phrase "accommodation provided by a private proprietor or a voluntary organisation in the area of another authority" in paragraph 8 is a reference to the discharge of functions under sections 21 or 26.
- In my judgment, Mr Knafler QC and Ms Grey are correct in their interpretation of this guidance. I do not read the first sentence of paragraph 8 of the guidance as having the wider application for which Mr Clayton QC contends. In my judgment, this guidance is intended to relate to the situation where a local authority decides to exercise its powers under the 1948 Act. It does not apply in the circumstances existing in this case. The local authority has not arranged a placement in a private or voluntary home exercising power under section 21 of the 1948 Act.
- I am conscious that my approach to this Circular may be unduly restrictive. What is the position if the Circular provides advice which is intended to apply to the circumstances of this case? First, the existence of the advice does not lead, inevitably, to the conclusion that a duty of fairness exists. As I have said, Mr Clayton QC accepts as much. Importantly, that was also the stance adopted by Mr. Auburn on behalf of the Third Interested Party. Second, it seems to me that the guidance is just as relevant to what constitutes good practice as it is to whether a duty of fairness exists. Indeed, given that the guidance is non-statutory a respectable argument can be sustained for suggesting that the guidance is more relevant to the issue of what constitutes good practice than whether or not a duty to act fairly exists at common law.
- Mr Knafler QC, Miss Richards and Miss Grey joined forces in pointing out some of the practical difficulties which might arise if a duty of fairness is held to exist in this case. Obviously, practical difficulties are unlikely to arise if the duty is confined to a duty to notify; however it is not difficult to accept that practical difficulties might arise if there was a duty of consultation or a duty which required one local authority to permit a second local authority to participate in the decision-making process. These practical difficulties are conveniently summarised as follows. First, the duty could lead to a situation where the person who is to be the subject of assessment undergoes simultaneous assessments or even sequential assessments by two different local authorities. Second, there would be potential for disagreement between the local authorities. That would be so, especially, if the duty extended to participating in the decision-making process. Disagreement, of course, would have to be resolved; in the meantime, however, there would be clear potential for the distress to subject of the assessment and, no doubt, to members of his/her family. Assessments under section 47 concern vulnerable individuals. This court should be slow, in my judgment, to sanction a process which carries with it the potential for considerable distress for that person unless there are significant counter-balancing benefits for that person. While consultation, in particular, may result in some benefit for the person who is the subject of the assessment in some cases it is hard to believe that consultation which occurs as a consequence of a duty to consult is likely to provide greater benefits than those which might accrue from consultation which comes about simply because good practice dictates that consultation should occur.
- It is necessary, of course, to be cautious about placing too great an emphasis upon practical difficulties. One has to proceed on the basis that the two local authorities concerned would act reasonably. Nonetheless, on any view, in my judgment there is a clear risk that practical difficulties would arise.
- I am fortified in this conclusion by the stance taken by the Claimant in response to a recent request made by the London Borough of Newham that the Claimant should assume responsibility for the funding of a care package relating to a person moving from NSE accommodation to a private residence within the Claimant's administrative area. In a letter dated 14 May 2010 Mr Boyd, of the Claimant, made it clear that the Claimant would carry out its own community care assessment in order to ascertain the person's needs and it would be only after a full investigation that the Claimant would determine whether or not it would accept responsibility for ongoing funding. As Miss Grey points out, such a stance carries with it a clear risk of unnecessary delay and dispute.
- The relationship between section 21 of the National Assistance Act 1948 and section 47 of the National Health Service and Community Care Act 1990 is also of some significance. The phrase community care services within section 47 of the 1990 Act is defined to include services provided under Part III of the National Assistance Act 1948 – see section 46 of the 1990 Act. Part III, of course, includes section 21. Section 21(4) contemplates that one local authority may discharge its function under section 21(1) by providing accommodation managed by another local authority. In that event the accommodation is provided on such terms as may be agreed between the authorities. In my judgment, it is inconceivable that this power could be exercised without prior notification and consultation with the other authority concerned. Indeed, in relation to section 21(4) there has to be an agreement between the local authorities.
- Having weighed all the factors which are relevant to the issue, I have reached the conclusion that the Defendant was under no duty to act fairly towards the Claimant either in the course of carrying out its assessment of SL under section 47 or before making any decision consequent upon that assessment. Its duties towards other persons or bodies are those which are stated expressly in the statutory provisions to which I have referred.
- I should record that I was referred to many more authorities during the course of argument than I have thought it necessary to include within this judgment. Essentially that is because Mr. Clayton pins his colours firmly to the mast of Doody. He accepts that the duty of fairness arises at common law by virtue of the principles set out in that case or not at all.
- During the course of the hearing Mr. Clayton QC raised a new issue. He suggested, at least as a possibility, that the Defendant was obliged to notify the local housing authority of the decision to move SL to the bungalow and invite their assistance on the issue of housing benefit. He claimed that such a duty arose by virtue of section 47(3)(b) of the 1990 Act. I doubt whether any such duty arose. The duty arises if "there may be a need for the provision of services" by the housing authority. Instinctively, I do not consider the payment of housing benefit constitutes the provision of services. However, I do not decide this issue definitively. As I have said the point emerged very late in the day and this is the sort of point which should be determined only when it is critical to the outcome of the decision. As I explain later in this judgment I have reached the conclusion that the Defendant should have instigated an inquiry with the local housing authority about the housing benefit position quite independently of the express statutory position relied upon by Mr. Clayton QC.
- In the light of my conclusion at paragraph 50 above, it is unnecessary, strictly, for me to offer any view upon the scope of the duty alleged. For completeness, however, I offer brief views upon that topic.
- Assuming the existence of a duty to act fairly it is clear, in my judgment, that such a duty would involve notifying an interested local authority that an assessment of an individual had been undertaken and the decision reached in consequence of the assessment. The notification should take place prior to any substantial step being taken in order to implement the decision.
- I am also satisfied that a duty of fairness, if it exists, should involve consultation between the local authorities concerned. In this context I regard the duty to consult as being the same as that which was articulated in R v Brent London Borough Council ex parte Gunning and R v North & East Devon HA ex parte Coughlan [2001] QB 213. The duty is summarised accurately in paragraph 108 of Coughlan:-
"108. It is common ground that, 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 the 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:"
- Applying those principles to the context of an assessment under section 47 and a decision upon that assessment, it seems to me that consultation would begin at some stage prior to the completion of the assessment and before a decision upon the assessment was taken.
- I do not accept that a duty of fairness would include a duty to permit the Claimant to be afforded an opportunity to participate in the decision-making process. In his oral submissions Mr Clayton QC recognised that serious difficulties might arise if such a duty were imposed upon the primary decision-maker. In my judgment the full force of the practical objections advanced on behalf of the Defendant, SL and NSE apply so as to preclude the existence of such a duty.
- I should not conclude this section of my judgment without saying something about the issue of good practice. The Third Interested Party appeared, primarily, to support the view that consultation (in the sense that word is used in Coughlan) and prior notification were desirable in cases such as the present one. Having considered this matter with care I have no doubt that the stance adopted by the Third Interested Party is correct. Ultimately, no cogent argument was advanced as to why notification and consultation did not constitute good practice. The fact that I have set my face against a legal duty to notify and/or consult does not mean that I have any reservations about the general desirability of consultation and notification in this sphere of decision-making. To the contrary, I share the view of the Third Interested Party that consultation generally would mean that the "host authority" would be able to provide the benefit of its local knowledge to the decision-making process if consulted timeously and constructively.
Issue (b)
- The minutes of the meeting of 5 May 2009 record the following comments as being attributable to Ms Christine Cooper, the Deputy Manager of STEPS (the domiciliary agency of NSE).
"When in the [bungalow] SL's funding would be different; she would have more pocket money, so SL would need more support sorting her budget out. She would have to do her own food, clothes shopping, also save for money for holidays and any other hobbies. The rent would cost SL only £10, she would have housing benefits….
….
….benefits for SL: income support goes directly to SL, DLA-£17 p/week plus £45 p/week. SL gets full housing benefit, so no rent for SL to pay, just £10 monthly. So SL will have £150 weekly for herself from which she has to manage her life, food, clothes, taxis/bus/train, social activities, holidays etc."
- In his first witness statement, Mr Mills says that Ms Treloar was advised by the NSE that the rent payable under the tenancy would be covered by housing benefit (aside from a fairly typical shortfall of £10 per week). According to Mr Mills, NSE had good reason to provide that information on account of its discussions with the local housing benefit authority in the past and because of that authority's previous payment of housing benefit claims.
- It appears that Mr Mills' assertion that Ms Treloar was advised about housing benefit by the NSE relates solely to the discussion which occurred at the meeting on 5 May 2009.
- As of the date of this judgment it is still unclear whether the information provided to Ms Treloar as to the housing benefit position will turn out to be correct. There is a dispute between Chiltern Borough Council, the local housing authority and Zetetick about this issue. There are ongoing proceedings about it. No one has suggested that it would be appropriate for me to adjudicate upon the substantive issue as it relates to the housing benefit payable in respect of SL's tenancy. As things stand, however, the rent payable under the tenancy is not being met, even substantially, by payments of housing benefit. As at the date of the hearing SL was in arrears of rent in the sum of £5,550.66.
- The wording of the first part of Issue (b) as formulated in paragraph 16 above would require me to determine the substantive dispute between Chiltern Borough Council and Zetetick. I cannot determine whether the Defendant acted irrationally by causing SL to accept a tenancy which was not affordable or unviable without also determining whether the whole of the rent or at least a substantial portion of it would be met by housing benefit paid by Chiltern Borough Council. To repeat, no one suggests that I should embark upon the task of determining the substantive dispute between Chiltern Borough Council and Zetetick. I am however in a position to judge whether the Defendant failed properly to inform itself about the issue of housing benefit or failed to take into account relevant considerations relating to that issue.
- Mr Clayton QC submits that given the importance of the availability of housing benefit to the sustainability of SL's move to the Bungalow the Defendant failed to take reasonable steps to inform itself of the true position in relation to housing benefit. He submits that the Defendant took no independent steps to clarify the position with Zetetick, or Chiltern Borough Council or the Claimant. Indeed, submits Mr Clayton QC, the Defendant took no steps of any sort to inform itself as to the position in relation to housing benefit between 5 May 2009 and the date when the tenancy was concluded.
- Mr Clayton QC accepts that the conduct of the Defendant is to be tested by reference to the approach set out in the judgment of Laws LJ in R (Khatun) v Newham LBC [2005] QB 37. The relevant extract form the judgment of Laws LJ is as follows:-
"35. In my judgment the CREEDNZ Inc case [a reference to the decision in the New Zealand case of CREEDNZ Inc v Governor-General [1981] 1NZLR 172] (via the decision in In re Findlay) does not only support the proposition that where a statute conferring discretionary power provides no lexicon of the matters to be treated as relevant by the decision-maker, then it is for the decision-maker and not the court to conclude what is relevant subject only to Wednesbury review. By extension it gives authority also for a different but closely related proposition, namely that it is for the decision-maker and not the court, subject again to Wednesbury review, to decide upon the manner and intensity of inquiry to be undertaken into any relevant factor accepted or demonstrated as such. This view is I think supported by the judgment of Schiemann J in R v Nottingham City Council ex p Costello [1989] 21 HLR 301 to which Mr Luba referred us. That case concerned the degree of inquiry which an authority was obliged to undertake into issues of priority need and intentional homelessness. Schiemann J said, at p 309:
"In my view the court should establish what material was before the authority and should only strike down a decision by the authority not to make further inquiry if no reasonable Council possessed of that material could suppose that the inquiries they had made were sufficient."
I should also record that Mr Clayton QC relied upon passages in the judgment of Sedley LJ in R (National Association of Health Stores) v The Department of Health [2005] EWCA Civ 154 but, in my judgment, in the context of this case the passages from the judgment of Sedley LJ add nothing to the extracts quoted above from Laws LJ and Schiemann J (as he then was).
- Not unnaturally, Mr Knafler QC relies upon extracts from the speech of Lord Brightman in Puhlhofer v Hillingdon LBC [1986] AC 484 at page 518B-E. Puhlhofer was a decision of their Lordships in relation to an application made to the local authority under the Housing (Homeless Persons) Act 1977. Nonetheless, submits Mr Knafler QC, the extract from Lord Brightman's speech set out below is equally applicable in the present statutory context. Lord Brightman said:-
"My Lords, I am troubled at the prolific use of judicial review for the purpose of challenging the performance by local authorities of their functions under the Act of 1977. Parliament intended the local authority to be the judge of fact. The Act abounds with the formula when, or if, the housing authority are satisfied as to this, or that, or have reason to believe this, or that. Although the action or inaction of a local authority is clearly susceptible to judicial review where they have misconstrued the Act, or abused their powers or otherwise acted perversely, I think that great restraint should be exercised in giving leave to proceed by judicial review. The plight of the homeless is a desperate one, and the plight of the applicants in the present case commands the deepest sympathy. But it is not, in my opinion, appropriate that the remedy of judicial review, which is a discretionary remedy, should be made use of to monitor the actions of local authorities under the Act save in the exceptional case. The ground upon which the courts will review the exercise of an administrative discretion is abuse of power – e.g. bad faith, a mistake in construing the limits of the power, a procedural irregularity, or unreasonableness in the Wednesbury sense – unreasonableness verging on an absurdity: see the speech of Lord Scarman in Reg. v Secretary of State for the Environment, ex parte Nottinghamshire County Council [1986] AC 240, 247-248. Where the existence or non-existence of a fact is left to the judgment and discretion of a public body and that fact involves a broad spectrum ranging from the obvious to the debatable to the just conceivable, it is the duty of the court to leave the decision of that fact to the public body to whom Parliament has entrusted the decision-making power save in a case where it is obvious the public body, consciously or unconsciously, are acting perversely."
Mr Knafler stresses that unreasonableness in the Wednesbury sense must be unreasonableness which verges on an absurdity.
- Mr Knafler QC also relies upon the decision of the Court of Appeal in R (Ireneschild) v London Borough Council [2007] EWCA Civ 234. In that case the Claimant challenged a community care assessment undertaken by the Defendant pursuant to section 47 of the 1990 Act. At paragraphs 41 and 42 of her judgment Hallett LJ said:-
"By the close of oral submissions, however, it had become apparent that there was little or no difference between the parties on the principles to be applied. Mr Béar reminded the court that it is well established that public bodies exercising statutory discretions can decide for themselves what factors and evidence they should consider, before reaching their decision. Subject to the question of perversity, he said, the court is only entitled to intervene if the matter is not considered where it is one which, on the true construction of the relevant statute, Parliament must have expressly or implied the identified as being required to be considered: see CREEDNZ v Governor- General [1981] 1 NZLR 172, page 183 per Cooke J, a passage cited with approval by Lord Scarman in Re Findlay [1985] AC 318 at pages 333-334. There are, therefore, matters which may lawfully, but not must lawfully, be taken into account. It is not enough for the latter category to show that many people or the court itself would have taken the matter into account. Lord Scarman also approved as a correct statement of principle Cooke J's recognition at page 183 line 33 of CREEDNZ that "there would be some matters so obviously material to a decision on a particular project that anything short of direct consideration of them by the ministers….would not be in accordance with the intention of the Act."
Save for balking at the use of the word "perversity" in this context, Mr Drabble did not disagree with this analysis. He did not disagree with Mr Béar's assertion that the appellant authority was entitled first, to decide for itself or reports to Commission to assist in making an assessment and second, to take into account one internal report through a subsequent internal report…."
- Later in her judgment the Lady Justice explained:-
"57….Again, one must always bear in mind the context of an assessment of this kind. It is an assessment prepared by a social worker for his or her employers. It is not a final determination of a legal dispute by a lawyer which may be subjected to over zealous textual analysis. Courts must be wary, in my view, of expecting so much of hard pressed social workers that we risk taking them away, unnecessarily, from their frontline duties."
- This expression of view is contained in that part of Hallett LJ's judgment which is dealing with a complaint on behalf of the Claimant that the social worker in question had failed to follow statutory guidance in compiling her assessment. While, no doubt, the view of Hallett LJ may resonate in other contexts I am not convinced that it should be applied, slavishly, in the context with which I am concerned.
- In the present case the issue of whether SL was able to afford the rent was obviously crucial to the issue of whether it was sensible for her to enter into the tenancy agreement. In the absence of housing benefit there was no realistic prospect that she could afford the rent. Consequently, her eligibility for housing benefit was crucial to the scheme of moving SL to the bungalow. In my judgment there can be no doubt that it would have been perverse for the Defendant to arrange for SL to enter into the tenancy without addressing the issue of the payment of rent at all.
- Can it be said that it was perverse or unreasonable of the Defendant to make no further inquiries into the issue of the payment of housing benefit in the face of the assertion made by Ms Cooper that housing benefit would be paid to the Claimant which would substantially meet the rent payable under the tenancy? The question is easy to pose but, in my judgment, difficult to resolve. I can well see how Ms Treloar might reasonably conclude that she was entitled to rely upon the statements made by Ms Cooper. Ms Cooper was the deputy manager of STEPS. Her views would obviously carry weight. Ms Treloar was entitled to consider that Ms Cooper (or if not Ms Cooper the organisation for which she worked) had significant experience of dealing with issues such as the payment of housing benefit to persons moving from NSE accommodation to private accommodation.
- Nonetheless, I have reached the conclusion that it was unreasonable for the Defendant to accept the assertions of Ms Cooper without any further inquiry. I use the word Defendant, advisedly. I am not suggesting that Ms Treloar, herself, should have embarked upon a detailed investigation of the issue of whether or not housing benefit would be payable to SL in the event that she took a tenancy of the bungalow. Such was the importance of this issue, however, that I consider that she should have instigated such an investigation. At the very least, in my judgment, either Ms Treloar or someone on her behalf should have taken the obvious step of seeking confirmation from the local housing authority that housing benefit would be payable in the event that the tenancy agreement was concluded. This was an easy step to take but one which related to one of the most important issues to be considered by SL and those charged with safeguarding her best interests.
- In her skeleton argument on behalf of SL Ms Richards stops short of submitting that the failure to conduct further inquiries as to the payment of housing benefit was an unreasonable failure. She contents herself (upon instructions from the Official Solicitor) with the suggestion that "more robust inquiries were warranted." In her oral submissions Ms Richards did not go beyond that which she submitted in writing. That was commendable restraint. Nonetheless I am compelled to go further. I have reached the conclusion not just that more robust inquiries were warranted but that the failure to undertake any inquiry after 5 May 2009 about the issue of whether housing benefit would be paid in respect of the tenancy and, crucially, if payable, how much would be paid was an unreasonable failure on the part of the Defendant.
Issue (c)
- Mr Clayton QC makes three complaints. He submits that there is no evidence that the Defendant considered whether it could or should enter into a tripartite arrangement whereby SL would move into the bungalow under the terms of section 26(3)(A) of the 1948 Act. Second, he submits that there is no evidence that the Defendant considered whether SL should move closer to her family if she was to leave her accommodation at the NSE centre. Third, the complaint is made that there is no evidence to suggest that SL was informed of, or understood, the legal consequences of her move to the bungalow. I deal with each complaint in turn.
- I accept entirely that there is no evidence that the Defendant considered whether it should enter into a tripartite arrangement under section 26(3)(A). This was an issue which was not raised by anyone, so far as I can see, until these proceedings were in being. I do not consider, however, that the Claimant can establish that such a failure was unlawful. Subject to the issue of rationality it was for the Defendant to determine the factors to be taken into account in deciding how SL's move to the bungalow would be managed and how the necessary legal arrangements would be secured. In my judgment, it was not irrational to fail to consider a legal provision which, no doubt, came to light only by virtue of the diligence of the lawyers involved in this case. The probability is that those closest to SL, including Ms Treloar, genuinely believed that SL had the capacity to enter into the tenancy agreement herself. They probably believed that to be the case on reasonable grounds. In those circumstances the Defendant was not irrational for failing to consider section 26(3)(A).
- In any event, I have reached the conclusion that Mr Knafler QC is correct in his argument relating to the interpretation of section 26(3)(A). This section applies where accommodation in any premises is provided under arrangements made by virtue of section 26. Section 26(1) provides that arrangements under section 21 of the Act may include arrangements made with a voluntary organisation or with any other person who is not a local authority where that organisation or person manages premises which provide for reward accommodation falling within subsection 1(a) or (aa) of section 21. The premises which fall within subsection 21(1)(a) are premises which consist of residential accommodation for persons aged 18 or over who by reason of age, illness, disability or other circumstances are in need of care and attention which is not otherwise available to them. Premises falling within sub-paragraph (aa) are not relevant in the present context. Zetetick was a voluntary organisation within section 26. In my judgment Mr Knafler QC is probably correct when he points out that Zetetick was not managing premises falling within section 21(1)(a). Certainly, there is no evidence before me and to which my attention was drawn which suggests that it was. Further, Mr Knafler QC is also correct when he says that the bungalow was not a care home nor was Zetetick registered under Part 2 of the Care Standards Act 2000 – see section 26(1)(A) of the 1948 Act. I agree with Mr Knafler QC that the probability is that essential conditions for section 26 arrangements were not met in this case.
- It may also be the case that there is no evidence that the Defendant considered whether it was feasible for SL to live much nearer to her family. However, I reject the suggestion that the Defendant acted unlawfully if it failed to give that possibility any consideration. The plain fact is that all the contemporaneous evidence from January 2009 onwards strongly suggests that SL was perfectly happy to reside at the bungalow and all those who were concerned with her care supported a move to those premises. There is no evidence that SL or her mother expressed a wish for SL to move closer to the family home at or about the time when the relevant decision was taken. SL had not lived near her family for many, many years. She was used to travelling, accompanied, to visit her family from time to time and there was no reason to suppose that such an arrangement could not continue. The issue of home visits was specifically addressed at the meeting of 5 May 2009; Miss Katrina Kushinga, a service manager employed by STEPS made the suggestion that SL could travel by train to the family home accompanied by a suitable member of staff from STEPS.
- The reality is that it did not cross the minds of SL, her mother, Ms Treloar and members of staff of NSE and STEPS that SL should live other than in close proximity to the NSE centre. In my judgment, that was wholly understandable and a failure to consider the possibility that SL could be accommodated near her family home was neither irrational nor unreasonable.
- Finally I turn to the complaint that SL was neither informed of or understood the legal consequences of her move to the bungalow.
- The most relevant evidence in relation to this issue comes from Ms Karen Lane who is a director of NSE. Ms Lane has made three witness statements in these proceedings; the third statement was made on 25 May 2010 which was, of course, two days before the commencement of the hearing. In paragraph 10 of this witness statement Ms Lane provides information as to what occurred in the days immediately prior to SL executing the tenancy agreement. Her understanding is that Gary Scott of Zetetick met with SL and the other woman with whom SL was going to share the accommodation at the bungalow to discuss the tenancy agreement. Two such discussions took place, one very shortly before the tenancy agreement was executed. Further, on 29 September 2009 SL and her co-tenant met with an independent advocate from an organisation known as People's Voices to discuss the nature of the tenancy agreement.
- Mr Clayton QC protests that this evidence arrived very late in the day. He stopped short, however, of suggesting that I should ignore it completely.
- In my judgment, all that the evidence demonstrates is that proper attempts were made by Mr Scott and by an independent advocate to explain to SL the nature of the document which she was proposing to execute. This evidence, of itself, cannot demonstrate that SL understood the concept of a tenancy and understood the written provisions of her tenancy agreement.
- Ms Richards, on behalf of the Official Solicitor, submits on instructions that SL lacks litigation capacity. That is not disputed. She also submits, on instructions, that the issue of whether SL had the capacity to enter into a tenancy as at September/October 2009 is more debatable. That said the view of the Official Solicitor is that the essentials of a tenancy (as opposed to the details thereof) are not complex. Those essentials are that the tenant occupies accommodation, pays rent in respect of that accommodation and has an obligation to look after the accommodation.
- I do not propose to determine, definitively, whether SL had capacity to enter into the tenancy agreement. Such a determination is impossible given the paucity of material directed towards that issue. I am satisfied, however, that the general tenor of the documentation which the Defendant generated suggests that those close to SL – namely her mother, Ms Treloar and members of staff of NSE believed that she had such capacity. That belief was reasonably held. Ms Treloar and members of NSE, in particular, had a wealth of information about SL and considerable experience in offering her assistance and support.
- In the light of the evidence available I am satisfied that SL was informed of the legal consequences of the tenancy agreement. As I have said I cannot determine whether she understood those consequences. I am satisfied, however, that those whose task it was to safeguard her interests believe that she understood its consequences. In my judgment they had that belief a) by virtue of their personal dealings with SL and b) because of the discussions with Mr Scott and an independent legal advisor which took place immediately before the tenancy was concluded.
- In the context of this case I do not think that it was incumbent upon the Defendant to do any more than it did to satisfy itself that SL understood the basic concepts associated with her tenancy. The Defendant sufficiently informed itself about SL's ability to understand the tenancy agreement. It was not irrational or unreasonable for the Defendant to believe that SL understood the essential elements of the tenancy and, in those circumstances, the Defendant was not unreasonable or irrational in not instigating further inquiries into her understanding.
- I have reached the conclusion that Mr Clayton's complaints under Issue (c) are not made out.
Relief
- In large measure this judicial review fails. However, I have found that the Defendant acted unreasonably in failing properly to inform itself about the amount of housing benefit which would be payable by the local housing authority in the event that SL entered into the tenancy agreement. At the hearing there was some debate which was relevant to the relief which might be thought appropriate in the light of that finding. In my judgment, however, it is prudent for the principal parties to reflect upon this aspect of my judgment and, thereafter, make short submissions on what should follow from this one specific finding. Accordingly, either at the handing down of this judgment or in advance in writing the parties should feel free to make such further submissions as to relief as they consider appropriate. Obviously I would expect that submissions will be made by the Claimant and Defendant. SL may also wish to make submissions. I do not prevent either NSE or the Third Interested Party from joining the debate if either Ms Grey or Mr Auburn thinks it appropriate.
